Peabody Trust (202005714)

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REPORT

COMPLAINT 202005714

Peabody Trust

19 June 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

1.     The complaint is about the landlord’s handling of:

  1. A leak to the resident’s property from a communal water tank.
  2. Repairs to a bathroom waste pipe, damp proofing and drainage works.
  3. The associated complaint.

Background

2.     The resident is a leaseholder of the landlord at the property, a ground floor flat.

3.     The resident’s vulnerabilities include a lung condition. She is sensitive to toxic obnoxious smells.

4.     In June 2020, there was a substantial leak from a water tank in the adjoining building, to the resident’s property. The landlord did not inform the resident about this leak. During the same period, the resident reported to the landlord that she had damp and mould on the walls throughout the property. The landlord responded that as a leaseholder, it was for the resident to prove to the landlord, that the cause of the damp and mould was down to a latent defect within the structure of the building, otherwise she would need to pay for repairs to her property herself or claim under her home insurance.

5.     In early September 2020, the resident’s leasehold insurer identified a leak from a waste pipe under the bath. Whilst stripping the flat, the insurer then identified a serious escape of water coming from a tank room, that served the flats in the adjoining building. The landlord carried out its own inspection of the property during the same period. It advised the resident to buy humidifiers and fans to fix the issue of damp. It also told the resident that any issue of wastewater was her responsibility to resolve.

6.     On 27 October 2020, the resident reported to the landlord that the original water tank was still leaking. A member of the landlord’s staff informed the resident that this tank had caused a substantial leak earlier in the Spring / Summer 2020. The previous leak had caused the water to be ankle deep in the adjoining building. The landlord responded to the resident’s report that same day. Its contractors identified the original repair had been unsuccessful, and the tank had continued to leak. The landlord later confirmed that this water tank was switched off in February 2021.

7.     The landlord did not accept the findings of the resident’s leak detection report completed in September 2020. It did not accept that the faulty waste pipe under the bath was a latent defect. As a result, during an investigation by the Financial Ombudsman Service in relation to the resident’s insurer, a further leak detection report was ordered a year later, in August 2021. The findings were the same. It reported that the caps on the waste pipes under the bath had not been correctly fitted during the initial installation and this was identified as a latent defect. Due to the findings being faulty workmanship, it was not covered by the resident’s insurance. The landlord accepted the findings of this second report and agreed to put it right. It refused the resident’s request for a qualified plumber to complete the repair. This repair took a further seven months to complete. The resident’s insurance company, therefore, carried out this repair to prevent further delay and potential damage to the property. The resident complained to the landlord during this time about its handling of both identified leaks at the property.

8.     The landlord’s stage one complaint response stated it would not respond to the resident through its complaint process. It stated the resident’s complaint related to a legal disrepair claim and was being managed through their respective solicitors. It accepted the main cause of the leak was from the water tank. It stated the secondary leak remained unrepaired due to access issues. The landlord also said that it was aware the resident had rejected the offer of compensation, offered through her liability and injury claims to its insurance company. It stated the insurance company would not cover costs which were contractual obligations between the resident and other third parties. On 28 January 2022 the landlord then provided another stage one complaint response. It offered the resident £50 compensation for the time, trouble and inconvenience caused to her by errors in its handling of the repairs.

9.     On 11 March 2022, contractors identified a small damp patch to the concrete base of the resident’s bedroom, adjoining a stack pipe. It was confirmed that this was unrelated to the previous escapes of water. The cause was identified as a defect in the damp proof course, exacerbated by the installation of a surface water gulley. As these were works to repair defects in the structure of the building, they were not covered by the resident’s insurance. In April 2022, the landlord referred the repairs to the original developer which built the property to carry out the works. The inspection was carried out in May 2022. At this time, the resident requested an escalation to her complaint.

10. At the final stage of the landlord’s complaint process on 24 May 2022, it apologised for its delay in its response to the resident’s complaint. It then advised her of the following:

  1. As a leaseholder, the resident’s claim for damages or internal repairs sat outside its complaint process.
  2. The delays to the repair of the cap on the waste pipe, under the bath, were because she had refused to allow its chosen contractor access to the property. The contractor it provided was competent to carry out the repair.
  3. It stated that in line with its insurance policy it would not review insurance complaints or appeals. It stated that the resident’s mortgage and rent elements, including service charge remained the resident’s responsibility as her alternative accommodation had been paid for through the insurance company while she was unable to live in the property due to repairs.

d. The landlord stated it could consider time, trouble and inconvenience caused to the resident. It provided its maximum compensation for this under its compensation policy, of £400. It then offered the resident an additional £100 for errors in its handling of her complaint.

11. The resident’s doctor recommended she move out of the property in October 2020 due to the impact the damp and mould was having on her health. She returned to her property in May 2022. The works to her bedroom were not completed until August 2022. During this period, she said she was unable to sleep in her bedroom.

12. The resident remained dissatisfied with the landlord’s final response. She brought her complaint to the Ombudsman on 30 July 2022. The resident’s desired outcome was to seek to prevent another resident suffering a similar experience. She also did not feel it was right that the landlord was able to use her insurance to pay for the works involving the leak from the water tank. This was because she felt this was the landlord’s fault. The resident also wanted an increase in compensation by £6,657.42. She stated this amount reflected the landlord’s mistakes. It also included the stress, inconvenience, and additional costs she incurred as part of the landlord’s response to the repairs and handling of her complaint.

Assessment and findings

13. When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. There are three principles driving effective dispute resolution: Be fair – treat people fairly and follow fair processes, put things right, and learn from outcomes.

14. The Ombudsman must consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the resident. If it is found that a failing did lead to an adverse effect, the investigation will consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes.

Scope of investigation

15. The resident has said that her part of her complaint includes the level of compensation provided by the landlord. This is because she incurred costs that her insurance claim did not cover. The resident has also stated she feels it was unfair that her insurance policy was used to carry out the main repairs to her property. This has resulted in her premiums being raised. The Ombudsman does not doubt the resident’s comments and frustrations. However, it is beyond the remit of this service to make a determination on matters involving her insurance claim. This service understands that the resident has already taken this aspect of her complaint to the Financial Ombudsman Service, which is the Ombudsman service best placed to investigate complaints about insurance companies. Some aspects of the matter are also subject to a legal disrepair claim. Under the rules which govern our service, the Ombudsman will not investigate matters which have been or are currently the subject of legal proceedings. Therefore, we cannot consider the resident’s disrepair claim as part of our investigation.

Policy and Procedures

16. The landlord’s repairs policy states that leaks involving baths or plumbing leaks are the leaseholder’s responsibility. The landlord is responsible for waste and drainage leaks, as well as damp caused by building defects. It provides the following repairs response timescales:

  1. Next available, non-urgent repairs are to be completed within 28 calendar days.
  2. Programmed repairs and specialist work. For example, where it requires additional time due to manufacture or complexity repairs are to be completed within 60 calendar days.
  3. Works considered an emergency will be attended within four hours.

17. The landlord’s complaints policy states it has a two-stage complaints process. All complaints should be submitted within six months of when the event occurred, or from when it became known to the complainant. It may exercise its discretion in exceptional circumstances when considering whether to accept a complaint submitted outside of this timescale. It states it will acknowledge a stage one complaint within three working days. It will provide its written response within ten working days. It will acknowledge a resident’s request to escalate a complaint to stage two within three working days. It will then provide its written response within 15 working days.

18. The landlord’s compensation policy states it will provide compensation when a resident has incurred additional costs, because its own service failure has caused a delay or where it has failed to provide a service. It provides examples that include being unable to use part of a property, its failure to meet agreed standards of service, or poor complaint handling. It states this policy is not intended to replace or compensate for a resident’s lack of home contents insurance. However, where damage has been caused directly as a result of its actions or oversight, or those of contractors acting on its behalf, consideration will be given to reimburse a resident for their costs.

19. This policy also states that if a leaseholder purchased a new property and the landlord fails to rectify defects that have been identified and confirmed by it as a defect within a reasonable time, it will consider compensation where it has caused delays. It states that for an urgent defect, for example a slow leak; if it has not made it good the repair within 30 days, it will pay a resident £1 per day to a maximum of £300.

A leak to the resident’s property from a communal water tank.

20. In June 2020 there was a leak from a communal water tank in the building, adjoining the resident’s property. This was described as a significant leak. The contractor attended and carried out the repair to the water tank. The landlord believed the repair had been successful and was complete following the leak in June 2020. It is not disputed that that the landlord did not provide any information to the resident about the leaking water tank at this stage. The landlord was not obliged to tell the resident about the incident because it affected an adjoining building, and it reasonably thought the repair had been resolved. The resident stated that she reported an infestation of damp and mould in her property during this same period. The landlord was correct when stating that it was the resident’s responsibility to provide evidence to prove that the leak was due to latent defect in the structure of the building, otherwise the landlord would not be responsible for repairing this damage. However, considering the timing of the resident’s reporting of the damp and mould and the proximity to the original leak being an adjoining wall, the landlord should have investigated this leak as being a possible cause of the damp and mould in its response to the resident’s reports.

21. In September 2020, the resident’s insurance company carried out a leak detection report which identified the substantial leak coming from the room which housed the leaking water tank. During this same period the landlord completed its own leak detection report. The landlord’s advice was for the resident to purchase humidifiers and fans to control the damp and mould. This was a poor response from the landlord in this circumstance. Dehumidifiers and fans may control the damp and mould, but it would not resolve the root cause of the problem. The landlord’s response failed to consider that the cause of the damp and mould could have been a building defect. If the landlord had taken an open-minded, investigative approach, the contractors may have discovered that the water tank was still leaking sooner. This service is not commenting on whether this would have resulted in further damage to the resident’s property. It is only stating that the landlord had an opportunity to act sooner to investigate the cause of the damp and mould.

22. On 27 October 2020, the resident reported the original water tank was still leaking. The landlord sent a contractor the same day. The contractor identified the tank had not been repaired properly and had continued to substantially leak, therefore soaking the walls of the resident’s property. When the resident first found out that the water tank was leaking in October 2020 and contacted the landlord about this, it initially told her that it had been resolved. The resident provided photographs of her water-soaked walls. The landlord later informed the resident that it would be unable to confirm with the resident when the leak from the water tank would be resolved. It switched the leaking water tank off on 9 February 2021. The landlord’s communication with the resident was poor between November 2020 and January 2021. It also took 105 days to turn off the leaking water tank, after its contractor confirmed that it was still leaking.  It is important to recognise that the country was subject to a national lockdown between 5 November 2020 and 26 November 2020. Following this there were restrictions which would have impacted the landlord’s ability to respond to this repair and its ability to communicate during this period would have also been affected. However, taking this into account the overall delay was not acceptable, and the repair should have carried out sooner.

23. The landlord accepted in its final response when addressing all of the resident’s complaint, that its communication fell short. It awarded the resident the maximum compensation available under its compensation policy of £400 for time, trouble and inconvenience caused. It was right that it recognised its errors and offered compensation to put things right for the resident. The Ombudsman’s approach to compensation is set out in our own remedies guidance (published on our website). This service has considered the impact that this aspect of the resident’s complaint has had on her. This includes the impact on the resident being moved from her property from October 2020 to May 2022 due to the damage. This service must also balance this with considerations outside of the landlord’s control, as explained above. This service would have awarded the resident £400 for this aspect of her complaint if the landlord had not already made an offer. The remedies guidance suggests awards in this range where there have been errors by the landlord which caused inconvenience and/or distress to the resident but there may be no permanent impact from the failing. In this case, the repairs were ultimately completed so there was no permanent impact although the delay and poor communication understandably caused significant distress and inconvenience for the resident. This includes £131 from 1 October 2021 to 9 February 2021 when the landlord turned the water tank off. This is in line with its compensation policy as stated above that it will pay £1 per day after 30 days of not completing a repair. This has been calculated a month after the landlord was informed there was still a leak. The Ombudsman therefore finds there has been reasonable redress in respect of the landlord’s handling of a leak to the resident’s property from a communal water tank.

Repairs to a bathroom waste pipe, damp proofing and drainage works.

24. The original leak detection report, carried out by the insurance company stated that the cause of the leak to the waste pipe was due to ‘faulty workmanship’ which was not covered by the resident’s insurance. The landlord disputed this leak as being a latent defect. It stated this secondary leak was to do with waste and water services in the property. The landlord told the resident the responsibility for this repair remained with her. This no doubt created further distress to the resident, in what the Ombudsman accepts was a very difficult time. She had to vacate her home and she has told this service that the incident had impacted her health. A year later, the Financial Ombudsman Service ordered a further investigation into this secondary leak, as the responsibility remained in dispute. A second report was issued which agreed with the resident’s original report that it was a latent defect. It stated that a push-fit joint, in a waste pipe, under the bath had been fitted incorrectly when installed. The landlord was entitled to challenge the original decision if its own report disagreed with the cause of the leak. It should not however, have taken a year and the intervention of the Financial Ombudsman to seek a further leak detection report. If the landlord’s contractors disagreed with the findings of the resident’s insurance company; it would have been fairer to the resident to have sought a further independent report itself, sooner to resolve the dispute. If it had done so, the repair to the waste caps under the bath could have likely been completed considerably sooner.

25. On 26 August 2021, after the landlord was given the findings of the second leak report, it accepted responsibility to repair the caps on the waste pipe, under the bath. It stated in October 2021, that it was waiting for the parts. It offered the resident appointments for its ‘handyman’ to carry out this repair on 29 November 2021 and then on 1 December 2021. The resident refused the landlord’s ‘handyman’ and requested the landlord provide a qualified plumber. The landlord was in its rights to use a contractor whom it deemed competent to carry out the works and was not legally required to use a plumber for this type of repair. As a result of this disagreement between the resident and the landlord, the insurance company provided a contractor to carry out this repair. This was to prevent further wasted time. It was the resident’s choice not to allow a handyman to complete the repair and whilst the Ombudsman can understand her reasons for doing this, the landlord cannot be held responsible for any delays this caused.

26. On 11 March 2022, whilst the waste pipes were being repaired, the contractor identified a damp patch to the concrete base of the resident’s bedroom, adjoining a stack pipe. The cause was identified as a defect in the damp proof course, exacerbated by the installation of a surface water gulley. The resident returned to her property on 27 April 2022. However, these damp-proof works to the bedroom were not completed until August 2022. For this period of time the resident was unable to use the bedroom and slept in the living area of the property. The resident was dissatisfied with the length of time this repair took. The landlord was responsible for this repair as it was not considered to be a defect which the developer was responsible for fixing. The landlord states in its repair policy that it will take 60 calendar days to complete this type of repair. It took twice as long to complete this repair. Due to the delays, the landlord’s failing to take responsibility for the latent defect of the waste pipe and poor communication with the resident as described above, this service makes a finding of maladministration in relation to the landlords handling of the repairs to a bathroom waste pipe, damp proofing and drainage works.

27. The resident in this case was also unable to use her bedroom due to the damage caused by the leak. In the landlord’s compensation policy, the resident is not entitled to a room loss payment. However, it is the approach of this service that where a resident is unable to use part of their property, they should be compensated. In line with the Ombudsman’s own remedies guidance for the distress and inconvenience, the resident is awarded £600 for this aspect of her complaint. This type of award includes where a landlord has made some attempt to put things right but failed to fully address the impact on the resident.

Associated complaint

28. The landlord provided its first response to the resident’s complaint on 22 December 2021. It was right when it informed the resident that her insurance claim sat outside the jurisdiction of the landlord’s complaint policy. This is because the insurer is a separate company from the landlord and the landlord is not responsible for the insurer’s actions. However, the landlord should have addressed the resident’s complaint about its handling of the identified leaks within her property, as described in this report. It corrected this by providing a further stage one response on 28 January 2023. On 1 April 2022 the resident requested her complaint be escalated to stage two of the landlord’s complaints process. The landlord provided its final response on 24 May 2022. Its complaints policy states it will respond within 15 working days and can extend its response to 25 days. It took 35 working days, which would have caused inconvenience to the resident, although overall, the delay was not significant.

29. The landlord was right to point out to the resident that as her insurer paid for her alternative accommodation, she remained responsible for her own mortgage and rent elements on the property throughout the repair process. Residents are expected to fulfil their contractual obligations to pay their rent and mortgages even if their property needs extensive repairs. The landlord awarded the resident £100 for its complaints handling. As above, the Ombudsman has considered that there was a service failure in the landlord’s initial approach to the resident’s complaint. However, it has provided suitable redress for these errors. The landlord’s offer was in line with the Ombudsman’s remedies guidance for service failure. This is where there have been failures which affected he resident but the failure may have been resolved quite quickly and/or may not have affected the overall outcome of the complaint.

Determination (decision)

30. In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to investigation which, in the Ombudsman’s opinion, resolves the complaint about a leak to the resident’s property from a communal water tank.

31. In accordance with paragraph 54 of the Scheme, there was maladministration in the landlord’s handling of the repairs to a bathroom waste pipe, damp proofing and drainage works.

32. In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to investigation which, in the Ombudsman’s opinion, resolves the complaint about the landlords handling of the associated complaint.

Orders

33. The landlord is to apologise to the resident in writing within 28 days of the issue of this report. The apology is to be in line with this Service’s guidance that it acknowledges the maladministration in the handling of the repairs and expresses a sincere regret for:

  1. Its response to the repairs to a bathroom waste pipe, damp proofing and drainage works.

34. The landlord is to pay the resident a compensation payment of £957 in addition to the £550 it has already paid the resident, within 28 days of this report. The breakdown of this compensation is as follows:

  1. £600 distress and inconvenience caused to the resident for its handling of the repairs a bathroom waste pipe, damp proofing and drainage works.
  2. £357 for the resident being unable to use the bedroom for 17 weeks which is 20% of the weekly rent.

Recommendations

35. The landlord should review its complaint handling policy and make such amendments that carries out its handling of complaints in line with the Ombudsman Service’s Complaint Handling Code (available to view on the Housing Ombudsman Service website).