Brighton and Hove City Council (202206381)

REPORT

COMPLAINT 202206381

Brighton and Hove City Council

11 May 2023

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about:
1. The landlord’s handling of a water leak in the resident’s bathroom.
2. The landlord’s complaint handling.

Background

The resident is a secure tenant of the landlord. The landlord is a local authority. The property is a one bedroom, ground floor flat.

Policies and procedures

The resident’s tenancy agreement confirms that the landlord is responsible for repairs to all fixtures and fittings including pipes and connections for supplying water.
The landlord’s repairs and improvements handbook sets out three categories of repairs:
1. Emergencies – attended to within 24 hours.
2. Routine – completed within 20 working days.
3. Complex – work that will take longer than 20 days to complete.
The landlord’s no-access procedure says that where access is not given for a repair to be carried out, its repairs team will send three letters requesting access; the first in 14 days, the second in seven days and the third a final warning letter that legal action will be taken. Over the period these letters are sent contact can also be made by phone and text messages. If there is no response and the repair is outstanding after the third letter is sent a completed referral form will be sent to the housing team. On receipt of this referral, the housing team will make all reasonable attempts to contact the resident over a period of five working days and details of these contacts should be recorded. If no appointment has been made after five working days, a letter will be hand delivered to confirm it will apply for an injunction. When an injunction is obtained, if access is still not given, the next step is forced entry.
The landlord’s complaints policy sets out a two-stage process:
1. Stage one – responded to within ten working days.
2. Stage two – responded to within 20 working days.

Summary of events

On 20 December 2021, the resident reported a water leak from his bathroom ceiling. A job was raised by the landlord with a due date for completion of 17 January 2022.
On 24 January 2022 the resident said he contacted the landlord to ask when the plumbing team would be coming to look at the leak as he had heard nothing from them. He received contact from the landlord a week later and an appointment was arranged.
The landlord attended the resident’s property on 2 February 2022 and inspected the leak. The landlord said that it would need to gain access into the flat above as this is where it believed the leak was coming from. The resident said he was told by the plumber who attended that he would be kept updated with progress of this. There is no record of any updates being provided to the resident.
On 2 March 2022, the landlord attended the resident’s property and inspected the leak. After inspecting the leak, it tried to gain access to the flat above but no access was given. The landlord’s repair log of the visit included a note that said ‘….suspected leak on waste pipe or blocked gully outside as apparently only leaks when something is used’. The landlord repair records show the job was completed that day.
The resident made a complaint on 7 March 2022. In his complaint, he said:
1. He had reported the leak in the bathroom ceiling on 20 December 2021 and it was still happening. He was frustrated that it had been going on so long and causing damage to his property and he wanted it resolved.
2. No one had called to find out how serious the leak was.
3. After he had reported the leak, he did not hear anything from the landlord and had to chase it up in January 2022 before an appointment was arranged.
4. Two operatives had attended and both said they needed to gain access to the flat upstairs but had not done so. On the second visit, the operative did not appear to know why he was there and after they left, he received a text message saying the job was complete but it was not.
5. He didn’t have home insurance as he had too many outstanding repair issues and asked if he could claim on the landlord insurance for the repairs needed.
On 15 March 2022 the landlord provided its stage one complaint response to the resident. Within the response it said:
1. It apologised for the time it had taken to fix the leak.
2. It had assessed the leak on 2 February 2022 and identified that repairs needed to be carried out in the flat above. The repair had been booked for 14 March 2022 but had to be rescheduled to 21 March 2022 due to staff sickness absence.
3. The job notes were visible to the operative who attended in early March 2022 and if they were unable to carry out the repair, they should have called the office but this did not happen. It said this would be escalated to the operative’s manager.
4. Leaks reported by e-mail were classified as non-urgent and it did not have the resources to make follow up calls for these types of reports. It had assessed the leak reported based on photos provided and confirmed that it was non-urgent.
5. He could not claim on its insurance for repairs as the landlord repairs service would carry out any repairs needed.
The landlord attended the resident’s property and the flat above on 21 March 2022. The resident was home but the neighbour above was not. In a follow up e-mail from the resident to the landlord he said that the plumber who attended told him that the landlord had called the neighbour about this and they said they were not currently staying at the property. The resident also said he was frustrated that he had wasted the day waiting in and was under the impression that the neighbour was aware of the appointment. He asked the landlord to escalate his complaint to stage two.
The resident e-mailed the landlord on 30 March 2022 asking for an update on whether the plumber had been and carried out work in the flat above. There is no record of a reply being sent.
On 8 April 2022, the landlord called the neighbour and booked an appointment for 20 April 2022. On the day of the appointment the neighbour contacted the landlord to say they would not be home. The landlord did attend but did not gain access.
On 21 April 2022, the landlord’s repairs team e-mailed the housing team asking for help in contacting the neighbour to gain access to their property.
Two days later the landlord sent a letter to the neighbour asking for contact within the next 14 days to arrange an appointment for the plumbing works to be carried out.
On 3 May 2022 the landlord’s repairs team e-mailed the housing team asking for help in contacting the neighbour to gain access to their property.
On 4 May 2022 the landlord provided its stage two complaint response. Within the response it said:
1. It apologised that it had not been able to gain access to the flat above to fix the leak.
2. There had been delays across its repairs service due to a labour shortage and for a short while it had only been able to respond to emergencies. This had been resolved but the service was dealing with a backlog.
3. It had started a procedure which required the neighbour to give access to their property. It accepted this could have happened sooner and training would be given to staff on this process.
4. It apologised that the resident’s e-mail sent to the landlord on 30 March 2022 was not responded to; this was an error but it had been working behind the scenes to sort the issue out.
On 11 May 2022, the landlord sent a letter to the neighbour requesting contact in seven days as repair work in their property was overdue.
On 18 May 2022, the landlord sent a letter to the neighbour asking for urgent access to their property. It said that not allowing access was a breach of their tenancy agreement and legal action would be taken if they did not give access. It gave the neighbour until 25 May 2022 to make an appointment.
On 25 May 2022 the landlord’s repairs team e-mailed the housing team asking for help in contacting the neighbour to gain access to their property. It confirmed that three no access letters had been sent to the neighbour.
The landlord attended the neighbour’s property on 10 June 2022 but no access was given. In light of this, the landlord attempted to force access to the property to carry out the repair works. Access could not be gained because the locksmith did not have the correct tools to do this.
On 22 June 2022, the landlord attended the neighbour’s property and forced access to carry out an inspection of the bathroom area. A small leak was found and repaired.
Five days later, the resident contacted the landlord to report that the leak was still happening.
On 1 July 2022, the resident contacted this service and said:
1. His complaint had been closed but the issue was not resolved. The leak was still happening and he wanted the landlord to fix the problem.
2. The landlord had issues gaining access to the property above and he believed it should have attempted to gain access sooner.
3. He was not being kept up to date and it was getting him down.
On 15 July 2022 the landlord attended the neighbour’s property and inspected the bathroom, kitchen sink and boiler cupboard but found no signs of a leak.
In August 2022, the landlord told this Service that further investigations into the cause of the leak were required and provided an internal e-mail setting out the following works required:
1. A small leak from the flat above. The landlord has told this Service that this was found to be from a burst mains pipe in the loft and was repaired in January 2023.
2. Replace pipe work to the electric shower. The landlord has told this Service that this was inspected in November 2022 and no issues found so the replacement was not needed.
3. Reattach the down pipe to the hopper for the balcony above. The landlord has told this Service that this job has been booked for June 2023 as well as a job to unblock the downpipe.
In November 2022 the landlord reinspected the resident’s property and suggested that the dark patch on the ceiling could be caused by condensation and damp, rather than a leak. This was because it only happened when the shower was being used and it had been unable to find any leaks in the flat above. The landlord suggested installing an additional extractor fan in the bathroom to address this. The landlord has told this Service that it did not go ahead with this installation as the actual leak was found to be a burst mains pipe in the loft and this was repaired in January 2023.
In April 2023, the resident provided an update to this Service saying:
1. The issue was still present in the bathroom and he believed it was some kind of leak. The landlord had gained access to the flat above but was unable to find one. It had attended multiple times and had now said this was caused by condensation but he was not convinced.
2. The main issue was how long it took the landlord to come to the final conclusion that the cause was condensation.
3. There had been another major leak in his property in January 2023 when a pipe froze and burst in the loft and flooded the neighbour above and his property. His whole flat needed redecorating and the landlord was taking a long time to decide whether to pay for the damage. It said he should have had home insurance but he had never taken this out because of the repair issues he had since living there. He felt it would be fraud to take out insurance knowing the issues he had.

Assessment and findings

Scope of investigation

In recent communication, the resident has told this Service that he had another leak in the property in January 2023 and the landlord is taking a long time to decide whether to pay for the damage. As this concern was not included within the formal complaint which the landlord provided a stage one and stage two response it will not be considered as part of this investigation. A recommendation has been made below for the landlord to provide a response to the resident on this matter and if he remains dissatisfied, he can raise a separate formal complaint if desired.

Handling of a water leak in the resident’s bathroom

The landlord attended the resident’s property regarding the leak 30 working days after the initial report and only after the resident had chased this up. This is ten working days over its committed response time for a routine repair. The reason for this delay is not clear from the evidence seen. The landlord has said in its stage two complaint response that labour shortages contributed to the delays but it is not clear at what point this was and the landlord did not provide any updates or explanation to the resident at the time regarding the delay, which would have been an appropriate thing to do. This meant that the resident had to take additional time and trouble to chase an update on the progress of the repair.
On its first visit to the resident’s property in early February 2022, the landlord said that it needed to access the property above to investigate as this was where it believed the leak was coming from. This was a reasonable and appropriate step to take. The landlord knocked on the door of the property above whilst on site but no access was given. After the visit, there is no record that any further contact was made or action taken to gain access to the flat above to investigate the leak, until it returned to the resident’s property the following month. This was unreasonable and more should have been done by the landlord to gain access to the property above after its visit on 2 February 2022.
After the landlord attended the resident’s property in early March 2022, the job was incorrectly marked as completed even though the repair was not. This led to a further delay and the resident taking additional time and trouble to follow up and escalate the matter. Within the landlord’s stage one complaint response it confirmed that it should not have stated that the job was completed.
The landlord made an appointment to attend both properties on 21 March 2022. When the neighbour did not given access for this appointment, a phone call was made to them and they said they were staying away from the property at that time. Despite telling the landlord this, there is no record that the landlord considered this when sending out future letters to the neighbour and only sent them to the neighbour’s property address. While appropriate that the landlord sent these letters to the property, it would also have been appropriate to send these to an alternative contact postal address or e-mail address for the neighbour to ensure they received these in a timely manner and could respond as quickly as possible.
The landlord first identified that it needed access to the flat above on 2 February 2022, but it was only after the second missed appointment on 21 April 2022 that it started the formal ‘no-access’ procedure. Prior to this, there had been a missed appointment on 21 March 2022 and so it would have been appropriate for the landlord to start the no access procedure at that time. The landlord’s failure to do this meant there was an unreasonable delay in it starting the no access procedure, which it accepted in its stage two complaint response dated 4 May 2022. After it started the ‘no-access’ procedure, the landlord progressed with this in a timely manner, by sending the three no-access letters and following up promptly when deadlines given to the neighbour were not met.
The landlord’s ‘no-access’ procedure does not require its repairs team to make other contact attempts over the period the letters are sent. While not required to do so, this Service considers that it would be reasonable and appropriate that it does. Internal landlord e-mails seen refer to calls and attempted calls made to the neighbour but do not provide all the specifics of what these were or when. The Ombudsman asked the landlord to see these records but it could not provide them as it said that its service did not record or note phone calls. Without the full details of what contact was made and when, the Ombudsman cannot fully determine whether the landlord’s actions were reasonable. While not required to make or record these contacts, it is considered best practice that the landlord would keep a record of these so it has an audit trail of what it has done so it can account for its actions and decisions as well as for use in any formal action that may be required.
The landlord’s no-access procedure says that if no access has been given after the three letters have been sent, it will refer to its housing and customer service team, which it did on 25 May 2022. The landlord then gained access to the neighbour’s property on 22 June 2022 where a leak was identified and repaired. As the leak was not happening constantly and had been classed as non-urgent the Ombudsman considers that this action was carried out in a reasonable timeframe.
After the resident reported the leak was ongoing on 27 June 2022, the landlord went back to the property above 15 working days later to investigate this. This was in line with its committed repair response times.
Most recently, the landlord has said that the leak was actually found to be from a burst water main in the loft that was repaired in January 2023. The resident has also confirmed that this much larger leak resulted in his property being flooded. There is no record that the landlord took steps to investigate that the leak could have been coming from the loft area, prior to the burst water main; which would have been appropriate.
In addition to gaining access to the property above and inspecting the loft area to investigate the leak, the landlord should have considered and investigated any other possible causes. It was suggested in March 2022 that the leakwas from a waste pipe or blocked gully; however, there is no evidence that this was investigated. There is further mention of a repair needed to a downpipe in August 2022 and the landlord has recently told this Service that this repair along with a job to unblock the downpipe has been scheduled for 23 June 2023. While appropriate that it carry out these works, there has been a significant delay in the landlord doing so with no explanation of the reasons for this delay. While noted that there is an appointment scheduled for this, due to the significant delay in the landlord completing this work, an order has been made for the landlord to check to see whether it can carry out these works on an earlier date and if so bring them forward. An order has also been made for it to check all other pipes, gullies and guttering for the resident’s property and the property above to identify any repairs or blockages.
In November 2022 the landlord suggested that this issue could be caused by damp and condensation, rather than a leak, which was a reasonable suggestion to make. It agreed to install an additional extractor fan to address this; which was appropriate. However, this did not go ahead as the landlord said it later identified the source of the leak as a burst mains pipe in the loft and repaired this in January 2023. As the landlord believed it had identified and resolved the source of the leak, it determined that the fan was no longer required; however, there is no evidence that it followed up with the resident to check that the issue was resolved, which would have been appropriate. The resident has recently told this Service that the issue is ongoing and the patch continues to darken when he uses his shower suggesting that whatever the cause of this remains an ongoing issue. In light of this, it is reasonable that the landlord continue to investigate the possible cause and take action to address this and an order has been made below for the landlord to do this.
Overall, there was maladministration in the landlord’s handling of a water leak in the resident’s bathroom. This was due to the initial delay in the landlord responding to the resident’s repair, the lack of action taken to gain access to the neighbour’s property after the first visit in February 2022 and the delay in it starting the ‘no-access’ procedure. This was frustrating for the resident and meant he had to take additional time and trouble to chase up the repair. The landlord also failed to investigate other possible causes of the leak and has delayed in carrying out external works to the downpipe by nine months. The landlord suggested that the issue could be caused by condensation but later decided this was not the case after fixing a pipe leak in the loft; however, there is no evidence that it did any follow up to check that the issue had been resolved after completing this repair. These failings mean that 17 months on the resident is still experiencing the same problem, with little reassurance or confidence that the landlord will support him to resolve the issue. An order has been made below for the landlord to pay the resident £500 compensation in relation to this issue, made up of £300 for the distress and inconvenience caused and £200 for the time and trouble taken.
While concerning that the landlord does not record all contact attempts as part of its no-access procedure, from the evidence seen, there appears to be little or no detriment to the resident in this case due to the lack of records kept. It is important, however, that the landlord reviews this and considers changing its approach on record keeping going forward. A recommendation has been made below in respect of this.

Complaint handling

The resident said he is unhappy that his complaints were closed when the repair had not been completed. It is reasonable that the landlord did this as it should not delay issuing complaint responses until repairs are completed. Where a complaint response is issued with outstanding repairs, it is appropriate that the landlord follows up and tracks all repairs through to completion, which it did in this case.
The stage one and stage two complaint responses were detailed and covered all issues raised by the resident. In both responses the landlord said sorry and in its final response, it identified staff training around the no access procedure. This was reasonable and in line with the Ombudsman’s dispute resolution principles to be fair, put things right and learn from outcomes.
The stage one complaint was responded to within target time but the stage two complaint was not. The resident first requested to escalate his complaint to stage two on 21 March 2022 and the final response was issued 30 working days later on 4 May 2022, which was ten working days over its committed response time. While a slight delay, there is no evidence that this caused detriment to the resident.
Overall, there was no maladministration in the landlord’s complaint handling.

Determination (decision)

In accordance with paragraph 52 of the scheme there was maladministration in respect of the landlord’s handling of a water leak in the resident’s bathroom.
In accordance with paragraph 52 of the scheme there was no maladministration in respect of the landlord’s complaint handling.

Reasons

The landlord’s handling of a water leak in the resident’s bathroom was unreasonably delayed. It failed to investigate other possible causes of the leak and carry out the necessary follow up to ensure the issue had been resolved.
The landlord’s complaint responses sought to put things right and learn from outcomes. While the final response was slightly delayed, there is no evidence of any detriment to the resident because of this.

Orders and recommendations

Orders

Within four weeks, the landlord is ordered to:
1. Check to see if there are any earlier appointments for it to carry out the identified repair and clear the blockage to the downpipe; if so these works to be brought forward. If not, the landlord must ensure that these works are completed on 23 June 2023 and confirm to the resident and this Service that they have been.
2. Check all external pipes, gullies and guttering for the resident’s property and the property above to identify any repairs or blockages. Provide a written update to the resident on the outcome.
3. Carry out an inspection of the resident’s bathroom and consider other possible causes of this issue and identify any actions it can take to address this including reconsidering its earlier suggestion of damp and condensation. The landlord to refer to The Ombudsman’s spotlight report on damp and mould to ensure it is taking a proactive approach to this issue and provide a written update to the resident following the inspection to confirm the outcome.
4. Pay the resident £500 compensation made up of:
  1. £300 for the distress and inconvenience caused by the delay in the handling of the leak.
  2. £200 for the time and trouble taken by the resident to chase up the repair.
The landlord should confirm compliance with the above orders to this Service within four weeks of this report.

Recommendations

The landlord to provide an answer with reasons to the resident on whether it will pay for the damage caused to his property by the water leak in January 2023.
The landlord to review its approach to record keeping when dealing with access issues and consider recording details of any and all contact and attempted contact.
The landlord should notify this Service of its intentions regarding these recommendations within four weeks of this report.