Homes Plus Limited (202125979)

REPORT

COMPLAINT 202125979

Homes Plus Limited

25 August 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 the landlord’s handling of remedial works to the roof following reports of damp and mould.

Background and summary of events

Background

The resident is the leaseholder of a 1 bedroom, ground floor flat. She purchased the lease of the property on 27 January 2020. The lease runs for a term of 125 years from 3 April 2000. The landlord is the freeholder of the block.
The resident does not live in the property; she purchased the property as an investment property to rent out.

Policies, procedures and legal obligations

Under the terms of lease, the landlord is required to keep in good and substantial repair and condition (and whenever necessary rebuild, reinstate, renew and replace all worn or damaged parts) the main structure of the property, including all roofs and chimneys and every part of the property above the level of the top floor ceilings, at the lessee’s expense.
Under the terms of the lease, the resident is required to keep the interior of the property in good and substantial repair and condition to the satisfaction of the lessor.
Under section 20 of the Landlord and Tenant Act 1985, a landlord is required to consult with a leaseholder before it undertakes any work which will cost any leaseholder more than £250. This includes repairs, maintenance and improvements to the building, and the estate the property is situated in.
The landlord’s leaseholder’s guide to Section 20 consultation information says:
1. Leaseholders have a responsibility to pay towards the cost of services, repairs, maintenance or improvements to the building and/or estate carried out by the landlord, as described in the lease and where the lease allows. Maintenance can range from small day-to-day repairs, such as repairing a communal front door or repairing guttering, but it can also include large repairs and/or improvements, such as a new roof, or the renewal of a communal floor.
2. In certain circumstances, a landlord can apply to the First Tier Tribunal (FTT) for ‘dispensation’. If the FTT gave a dispensation, the landlord would not have to follow the rules fully. However, it would have to satisfy the FTT that it had taken all reasonable steps to make leaseholders aware of its plans and that the situation was an emergency. Examples of emergency works might be repairing a lift in a tower block or repairing a roof where there is a major leak.
The landlord operates a 2 stage complaints process. Stage 1 complaints are responded to within 10 working days and stage 2 complaints are responded to within 20 working days.
The landlord’s compensation policy says it may consider a discretionary payment of compensation (dependant on tenure) in the following circumstances:
1. Prolonged loss of use of part of the dwelling, through no fault of the occupants, due to avoidable circumstances, and as a result of action or lack of action by the landlord.
2. If repair or improvement work undertaken by the landlord has not met its published standards, and this has caused the customer significant inconvenience or disruption.
3. Major loss of or disruption to services for which the customer pays a service charge.

Scope of investigation

The purchase and sale of a property is a formal and legal process. In this case, it involved the landlord, seller, and the resident as the purchaser. There are specific rules and regulations that must be followed by all parties in relation to the information given to prospective buyers. Solicitors play an important role in advising and guiding their clients throughout the process.
As a leaseholder, there is an obligation on the buyer to fully investigate the property they wish to purchase in relation to the level of service charges, ground rent, and the condition of the overall property.
Allegations of misrepresentation, such as those made by the resident ultimately can only be resolved by the courts. The courts can cross examine, call expert witnesses, and make legally binding judgements on the parties involved in the sale/purchase. The Ombudsman does not have the authority or remit to make such judgments. Therefore, this investigation will focus on the events that took place following the resident’s purchase of the property on 27 January 2020, and will assess whether the landlord’s overall communication with, and responses to, the resident were appropriate, fair and reasonable.

Summary of events

The resident contacted the landlord on 17 February 2020, as her decorators had noticed a large damp patch on the bathroom wall. The resident told the landlord that the brickwork outside the building was soaking wet and she thought there was an issue with the roof or the soil pipe. The resident said that she could not continue to decorate the property in its current state.
The resident contacted the landlord again on 18 February 2020 and 20 February 2020. She left the landlord an urgent message in relation to the damp and health and safety concerns. The resident received an answerphone message from the landlord to say that her concerns had been reported, they were being dealt with, and it would contact her.
A roofer attended the resident’s block on 26 February 2020. He inspected the roof and informed the landlord that there were broken roof tiles over the bathroom and back bedroom area of the roof. He said the water may have been getting in through the broken tiles and running down the felt into the cavity. He also said that there were lots of broken tiles on the hip end of the roof, and the gutters were holding water. He sent pictures of the roof to the landlord.
The resident contacted the landlord on 3 March 2020 to complain about the way she was being treated. She told the landlord that the damp was getting worse.
In an internal email dated 3 March 2020, the landlord considered whether temporary repairs were an option. It said it had established that the roof and concrete gutters were in a state of disrepair which required a full roof overhaul. It was happy for temporary works to be completed to help alleviate the situation, although as there were numerous broken tiles, it was unsure if anything could be done on a temporary basis. This was because it was likely that the cost of any temporary works would be over £250 per unit, and so a section 20 consultation would be required, which would take at least 3 months.
The landlord sent an email to the resident on 3 March 2020 to provide an update. It confirmed that the roof required remedial work. It said the contractors had been asked to prepare the specifications for the works to go to tender. It would forward the resident’s lease to its legal team to review because of the potential apportioned costs of the work, as if the cost of the work was above £250 it may be required to go through the section 20 process.
The resident sent an email to the landlord on 18 March 2020. She said:
1. The leasehold information pack stated that the landlord was not aware of any major works planned for the foreseeable future. However, another resident told her that the landlord had been aware of the damp problem for at least 4 years. The previous leaseholder also had problems, which had supposedly been rectified.
2. The landlord had taken so long to admit that it was an ongoing problem, and as it had failed to rectify the issues sooner, it was now a major problem.
3. She had spent a lot of money getting the flat into an excellent condition, and she would not be able to recoup any of her outgoings for a considerable amount of time. She could not rent or even sell the property until the work had been done.
4. The water ingress had progressed and the black mould had spread, which meant the property was uninhabitable and a health and safety risk. The paint was flaking off the walls and the damp had crossed the ceiling towards the light.
5. She told the landlord about green mould at the junction of the soil pipe coming from the flat above, which she thought was leaking, and therefore a health and safety issue.
6. The garden was very wet below the soil pipe. The toilet was used in the upstairs flat whilst she was working there and she noted that the concrete seal around the base was broken. Water was coming up out of the pipe where it joined the pipe to the sewer, which needed to be addressed as a matter of urgency.
7. Had she known about the problems prior to her purchase, she would have carried out further investigations and not proceeded with the purchase.
The landlord acknowledged the resident’s email on 20 March 2020 and said the case had been escalated to a manager. It also said that it had contacted the inspector to gain an understanding of the cost of the works and the level of urgency.
The resident attempted to contact the landlord again on 30 March 2020 and 31 March 2020. She received no response.
The landlord contacted its repairs team on 15 April 2020 to chase a response to the resident’s concerns, and to see how it planned to rectify the situation. It noted that the resident was in a poor position due to loss of income and double council tax payments. It also noted that until the issue was resolved, the property would continue to deteriorate.
The resident redecorated the bathroom on 28 April 2020, so that she could rent out the flat. She found a new leak in the bathroom on 30 April 2020, which she reported to the landlord. The landlord told the resident it was only completing emergency repairs due to the pandemic. It said that scaffolding work was heavily restricted and could only be erected for minimum timescales. Therefore, the resident’s issues would be picked up again when normal working practice resumed. In the meantime, it provided the block policy for the buildings insurance.
The resident attended her property on 12 May 2020 to check on the damp. When she arrived, she spoke to a surveyor who said that he was measuring for a new roof. The resident said that she had not been notified of his visit in advance.
The landlord sent the resident an email on 12 May 2020 to let her know that the surveyor would be on site that day to take measurements for the guttering and roof area to formulate a specification for the required work. The landlord said that no access would be needed to her flat, as the measurements would be taken from outside. The resident did not see the email before her visit to the flat.
The resident contacted the landlord on 28 September 2020 to report a further leak from the bathroom ceiling, close to the light fitting. She had been unable to contact the landlord over the summer as she had been unwell.
The resident reported further leaks coming through the hall ceiling on 14 December 2020. A contractor came out to inspect and said that the leak was from the roof. He told the resident that someone else would come out in the next two days.
On 28 January 2021, the resident reported a further leak in the bathroom, on another wall, to the landlord. She told the landlord that she had decorated four times since she purchased the property, but due to the outstanding roof works, the issues had continued. The resident said that she was aware that Covid-19 had caused some issues, however it should not have stopped all progress with her case. She told the landlord that this was an unacceptable position to be in as it had been ongoing for 12 months. She said that she had received very little contact from the landlord and she wanted to know what the landlord proposed.
The landlord emailed the resident on 28 January 2021. It said that it had passed her details to a manager and the inspectors who were investigating the issue further. It said that it would come back to her directly when it had any further information and it provided buildings insurance information so that she could make a claim.
On 7 February 2021, the resident sent the landlord an email with images showing two more leaks, damp patches and flaking paint. She reported a further two leaks in the bathroom on 8 February 2021.
On 16 February 2021, the resident rang the landlord for an update. The landlord said that a message would be sent to the relevant staff member to request a call back. The resident contacted the landlord again by email on 18 February 2021. She said that the issues with the roof had been ongoing for 12 months and she needed an answer.
The landlord contacted the resident in response to her email on the same day. It said that it would provide details of the block buildings insurance so that she could see if she was eligible to make a claim. The landlord gave the resident information so that she could raise a formal complaint. The landlord confirmed that the roof works seemed to be moving in the right direction and would likely progress through the section 20 process due to the expected costs.
On 18 March 2021, the landlord sent the resident a letter to confirm that it would be carrying out major works at her property, and it would soon be starting a section 20 consultation. It provided a leaseholder’s guide to section 20 consultation.
The landlord raised a repair on 26 April 2021 to repair the rear gutter/install a gutter tray to a section over the bathroom to prevent water ingress. The job stated that the re-roofing work was to be completed at a later date.
The landlord sent the resident a ‘notice of intention’ letter by special delivery on 10 May 2021, as required by the section 20 process. It said:
1. Under section 20 of the Landlord and Tenant Act 1985, it was required to consult with the resident about some of the work and services that she must pay for. It was now in a position to commence the section 20 consultation works for the block in which she owned a property.
2. It had included the statutory notice of intention, a description of the scope of works, an example notice of intention with guidance notes, and an observation form.
3. It confirmed that the consultation period was due to end on 12 June 2021.
The resident submitted an online observation to the landlord on 5 June 2021. She said:
1. She purchased the property on 27 January 2020 and had a large file on the roof problems she had experienced since the purchase, even though the landlord had strenuously denied the problem was caused by the roof.
2. The leasehold information pack said that it was “not aware of any major work in the foreseeable future”, which appeared to be a misrepresentation. Had the landlord been truthful about the need for a new roof, she would not have invested in the property.
3. The previous owner said that he had some problems which the landlord said, “had been rectified”. It appeared these were the same problems that she was experiencing.
4. Work to be carried out also included a replacement roof to two side entrance porches to the upstairs flats. She refuted that she should pay towards this as it was of benefit to the landlord and did not bear any relation to the property she owned. She would be paying to increase the value of two properties owned by the landlord.
5. She had put together a file detailing the problems encountered since purchasing the property and she expected substantial compensation for all the inconvenience, expense, upset, loss of earnings and time spent trying to sort out these problems.
6. She could not sell the flat in its current condition, and she would lose a substantial amount of money when she was able to sell it because she had to pay the large amount towards the repairs.
The landlord sent the resident a letter on 23 June 2021 in response to her online observation on 5 June 2021. The landlord said:
1. Any repairs raised previously would have been patch repairs which it hoped had rectified any issues. These did not have the desired effect which was why it was now going to replace the roof.
2. The leasehold information pack was accurate at the time of sending. It was not aware of any major works in the foreseeable future at the time. The question asked if there were any works anticipated within 18 months, the 18 months from the date of the pack would have passed before any work commenced.
3. The resident’s lease said that the landlord agreed, at the resident’s expense, to keep in good and substantial repair and condition the main structure of the property, including all foundations forming part of the estate (including all roofs and chimneys). This could be found in the ninth schedule of the lease.
The resident sent the landlord a stage 1 formal complaint letter dated 1 August 2021, which the landlord received on 6 August 2021. She said she first reported damp coming through the bathroom wall to the landlord on 17 February 2020. She made several further reports of leaks and damp between 20 February 2020 and 18 February 2021, however, the situation had still not been resolved.
The landlord sent the resident a stage 1 complaint response on 8 September 2021. It said:
1. It was satisfied that the complaint should be upheld.
2. The damp was first reported on 20 February 2020. The resident had been contacted on the same day to confirm that the job had been reported and would be dealt with accordingly. Typically, that meant a surveyor would attend to visually assess the situation and did not always mean that access to the property was required.
3. An operative attended on 26 February 2020. It was at that visit that it identified that further work was required to the roof, and this was passed to the surveyors’ team to progress.
4. Unfortunately, due to the introduction of the national lockdown on 26 March 2020, its repairs systems were scaled back to emergencies only and it was unable to use any external contractors, so the works were put on hold, which she was informed of at the time. It did understand that this was inconvenient, however the safety of its staff and residents had to be its priority.
5. It noted from her letter that it was around the time of the first national lockdown that she had completed the bathroom redecoration only to suffer another leak shortly after to which it was unable to attend due to lockdown. Over the months of lockdown, and those following, the surveyor did attend site and put together a case for executive approval for major overhaul works to the roof.
6. Under Section 20 of the Landlord and Tenant Act 1985 (amended by section 151 of the Commonhold and Leasehold Reform Act 2002), it was required to consult with leaseholders when it intended to carry out work which would cost any one leaseholder more than £250. That included repairs, maintenance and improvements to the building and estate. Although the requirement for the work had been identified, due to the high cost it was evident that a leaseholder consultation would be required before the work could commence.
7. It had called the resident to explain the works that were proposed, the legal requirements of the consultation, and the section 20 process. It was waiting for the tender results to be received, at which point the second formal notice would be issued. Works could not start until the section 20 process had been completed, however, it expected the works to resolve the issue entirely.
8. The system showed that on 28 January 2021, a further two leaks were reported, although it appeared that these were because of an open window in the void flat above.
9. It had sent the resident a copy of the building’s insurance certificate, which included details on how to claim for damages to her property, should she wish to.
10. It was obliged to insure the building, and it was entitled to recover the cost of the annual premiums from the resident through the service charge. It was usual practice to offer leaseholders the option to lodge a claim with the building insurance providers in the event of loss/damage.
11. It could clearly see that the time taken for it to act upon, and resolve, the issue with the roof had been severely delayed. This was in part because of the Coronavirus pandemic and the associated national lockdowns, but also due to its internal processes and procedures. The section 20 process was underway, and it hoped to be able to carry out the required roof works and resolve the leaks as soon as possible.
The resident responded to the landlord by email on 22 September 2021, which the landlord logged as a stage 2 escalation request. She said:
1. She had not been contacted by anyone who was in a position to assist her.
2. The outcome she was seeking from her complaint was for her property to be returned to the condition it was in following the re-decoration, and before the leaks occurred. She also wanted to be reimbursed for the loss of rent due to not being able to rent the property out.
3. The first report of damp was made on 17 February 2020. She could not understand how the surveyor knew how badly her flat was affected as he only inspected the outside of the property. She wanted to know how he knew what had caused the leak.
4. She was not told that an operative would be visiting on 26 February 2020 and it was only by chance that she visited the flat on that day.
5. No one officially told her what works were on hold due to the national lockdown. Her bathroom was first decorated before 17 February 2020 and the further leak was reported on 28 April 2020.
6. On 15 December 2020, she reported two leaks coming through the hallway, in the middle of the property. A workman came out and said it was from the roof and someone would come out in the next two days, but nobody came. On 20 December 2020, she reported the open window in the void flat above and she failed to understand how an open window would affect her ceiling in the middle of her flat.
7. She was told that the insurance company would not consider a claim due to the age of the roof. There was also an excess of £100 which she presumed she would be liable for.
The landlord sent the resident a stage 2 complaint response on 20 October 2021. It partially upheld the resident’s complaint for the following reasons:
1. The resident reported issues related to the leaks in February 2021, and these had yet to be resolved.
2. There were a number of factors which contributed to the delay, including the impact of the coronavirus pandemic and its requirement to consult with leaseholders before ordering and completing major works. However, it had identified ways in which its own working practices also contributed to the delay, and it apologised.
3. It was reviewing its systems and processes for dealing with repairs to help improve how it would deal with such cases in the future.
4. The necessary work to the roof of the building had been prepared for tender and it hoped to be able to provide a start date for the work by 17 November 2021. It would contact the resident on or before then, with an update on the situation.
5. To help return the resident’s property to its prior condition, it offered £200 in compensation.
6. It was not able to offer any compensation for loss of rental income under its compensation policy. However, it provided its insurers details so that the resident could make a claim for loss or damage.
The resident sent the landlord an email on 13 November 2021 following the stage 2 response. She said:
1. The landlord had never taken any action to resolve the leaks.
2. The property had been decorated throughout ready to rent out and the offer of £200 felt like a gross insult. After speaking to her decorator, she was concerned that it was too early to treat and paint the areas affected by the problem as the source of the damp had not been rectified. The plaster was becoming more porous and could need to be replastered.
3. She wanted to make a claim for rent loss, as she was losing money every month that the landlord delayed attending to the problem. She did not understand why no one ever attended to inspect the damage or see where the problem was coming from.
The landlord sent the resident a further response on 17 November 2021. It said in the normal course of a complaint investigation it would generally speak to the complainant to discuss the matter and attempt to agree an appropriate remedy. As this was not possible in this instance, it reached a decision based on the information available. If there was an alternative figure of compensation that she would be willing to accept, it asked her to let it know and it would consider this in line with its compensation policy.
The landlord sent the resident a section 20 ‘notice of estimates’ letter dated 7 February 2022, as a follow up to its previous letter sent on 10 May 2021. It said:
1. Under section 20 of the Landlord and Tenant Act 1985 (amended by section 151 of the Commonhold and Leasehold Reform Act 2002), it was required to consult with the resident leaseholder about some of the work and services that a leaseholder must pay for. It was now in a position to commence the section 20 consultation for works intended for the block in which she owned a property.
2. Following on from the notice of intention, included with the letter was the statutory notice of estimates, details of all the estimates received, an example notice of estimates with guidance notes, and an observation form.
The resident contacted the landlord on 22 March 2022 to request an extension of the response date in relation to the tenders for the roof work, as she had contacted this service. The landlord responded on 30 March 2022 and said it was unable to extend or delay the section 20 process, and it was expected to continue its normal processes to resolve any outstanding issues whilst the Housing Ombudsman carried out its investigations.
The roof works were completed on 20 May 2022.

Assessment and findings

The landlord’s handling of remedial works to the roof following reports of damp and mould.

Following the inspection of the roof the landlord concluded on 3 March 2020 that a full roof overhaul was required, which meant that the section 20 process would have to be followed. From the information provided, the landlord considered whether temporary repairs would be an option, but did little more than conclude that the temporary repairs would likely be over the threshold of £250 per unit, and therefore could not be completed without following the section 20 process.
There is no evidence to suggest that the landlord inspected the resident’s property to see how severe the damage was, or that it sought to obtain estimates for temporary repairs. There is also no evidence that the landlord considered an application to the First Tier Tribunal (FTT) to dispense with the section 20 process given the circumstances, potential further damage, and the likely timeframe of the section 20 process. It was unreasonable of the landlord not to at least attempt temporary repairs to prevent the condition of the resident’s flat from deteriorating further.
It was unfortunate that the national lockdown, in response to Covid-19, impacted the landlord’s repairs service around the time of the resident’s reports. It is acknowledged that landlords faced an unprecedented challenge in responding to the pandemic and managing their repairing responsibilities in accordance with the relevant government guidance at the time.
However, it is of concern that there is no documentary evidence from the landlord to show that it considered whether the works were in fact urgent so as to fall under the exception in the government’s guidance. The guidance was clear that visits could still be made, and work could still be carried out, for urgent health and safety issues. The Ombudsman would expect to see some evidence of the landlord assessing or deciding whether this was the case at the time.
Even though the resident continued to report further leaks and damp and mould forming in her flat, the landlord did not start the section 20 process until it sent the ‘notice of intention’ on 10 May 2021, which was over 12 months from her first report. The landlord did not send the section 20 ‘notice of estimates’ letter to the resident until 7 February 2022, which was 9 months from the ‘notice of intention’, and almost 2 years from her first report.
The landlord has not provided any evidence to show that there was any reason for the delay, or that the delay was warranted. Therefore, this service can only conclude that the landlord behaved unfairly, was at fault for severe and unreasonable delays in dealing with the matter, and dealt with the section 20 process incompetently.
The landlord’s overall communication with the resident was poor. The resident was not kept up to date with any progress, and there was a period of 4 months over summer 2020 where the evidence suggests that the landlord did not contact her at all. The resident had to consistently chase the landlord for information and updates, which likely led to her feeling frustrated, distressed and unclear as to how the landlord intended to resolve her concerns. Overall, the landlord failed to show empathy towards the resident and the circumstances she had found herself in.
The landlord did provide the resident with details of the buildings insurance policy on 30 April 2020 so that she could make a claim for her loss/damage. The landlord continued to advise the resident to make a claim throughout the complaint process. This was reasonable in the circumstances.
The landlord upheld the resident’s stage 1 complaint and accepted that the time taken for it to act and resolve the issue with the roof had been severely delayed. The landlord said that this was in part because of the pandemic and the associated national lockdowns, but also due to its internal processes and procedures. Though the landlord concluded that the delays could be attributed to its own failings, it failed to provide any redress to the resident, which was unreasonable.
In its stage 2 response, the landlord offered the resident compensation of £200, which was insufficient considering the significant impact the delays had on the resident and her property. This showed a lack of understanding of the resident’s complaint, the significant impact that the leak and resulting damage had on her property and the time and trouble she went to in pursuing an outcome.
In summary, the landlord delayed unreasonably in repairing the roof to the resident’s block. It did not sufficiently consider whether temporary repairs were feasible or whether it could apply to the FTT to dispense with the section 20 process. This service recognises that there would have been times in 2020 and 2021 when the government’s restrictions meant that some of the works may have been subject to a delay, but this only accounts for a relatively short period of time.

Determination (decision)

In accordance with paragraph 52 of the Scheme, there was maladministration by the landlord in relation to its handling of remedial works to the roof following reports of damp and mould.

Reasons

The landlord did not attend to the roof repairs of the resident’s block within a timely manner. There were significant delays which caused further damage to the property and meant that the resident was unable to let the property out to tenants.
The landlord failed to assess whether the works were urgent and delayed unreasonably in commencing the section 20 process. The landlord failed to adequately consider whether temporary repairs were feasible in the circumstances and whether an application to the FTT to dispense with the section 20 process was appropriate.
Although the landlord accepted that some of the delays could be attributed to its own internal procedures and processes, it failed to offer sufficient redress to the resident.

Orders and recommendations

Orders

Within four weeks from the date of this report, the landlord must:
1. Apologise to the resident for the failures highlighted in this report.
2. Pay the resident compensation of £1,250 for the distress, inconvenience and time and trouble caused to her by the delays in completing the repairs to the roof.
Within six weeks from the date of this report, the landlord is ordered to provide this service with evidence of the review of its systems and processes for dealing with repairs that was referred to in the stage 2 complaint response. It is expected that this should include actions it has taken, or will take, to ensure that:
1. Repairs subject to section 20 consultation are progressed in a timely manner.
2. It has procedures in place to assess the need for temporary repairs when extensive works are subject to the section 20 consultation process.
3. Leaseholders are regularly updated on progress during the section 20 consultation process.
The landlord should reply to this Service with evidence of compliance within the timescales set out above.