Basildon Borough Council (202108992)

REPORT

COMPLAINT 202108992

Basildon Borough Council

7 January 2022

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 response to the resident’s reports of a water leak affecting her property.

Background and summary of events

2. The resident is a tenant, and her home (the property) is a ground-floor flat.
3. On 24 December 2020 the landlord raised an emergency repair for a leak which the resident reported to be coming through her bathroom ceiling. An operative attended on the same day and reported “Spoke to office and advised that the ceiling is asbestos and will need contractors to come out and remove. Leak coming through wet room ceiling, knocked on flat above no answer”. The landlord subsequently raised for a specialist asbestos contractor to attend, who attended on the same day.
4. On 31 December 2020 the landlord raised an emergency repair in relation to the leak, and the operative’s notes from the same day say that he located the leak and capped the pipe work to “make safe only”. The operative confirmed repairs were required to the resident’s ceiling.
5. The landlord raised an inspection on 18 January 2021 to determine what works were required. The landlord’s contractor reported back that the “ceiling to wet room has brown like mould to it due from previous leak from upstairs which has been done, tenant does not want it patched in she will take it further if we don’t do whole ceiling, I did explain we would only do what needs doing and patches in. Presumed asbestos textured ceiling. Also mould treatment to cupboard ceiling to hallway. I would suggest to get the whole ceiling scraped back then plastered”.
6. On 23 March 2021 the landlord logged on its system that the resident called to complain about its handling of the leak. The resident was unhappy that:
   1. When an operative attended, he advised that he was not a plumber, but dealt with asbestos and was unable to gain access to the flat above hers. When the operative was able to gain access, he could find the source of the leak and was going to attend again on 26 December 2020 but did not turn up. The above flat was checked again but the contractors were still were not aware as to where the leak was coming from.
   2. She was cleaning up two buckets of water per day and had to call twice on 1 January 2021 to pursue the repair. A plumber then turned up and found where the leak was coming from and eventually turned the water off.
7. The resident asked for an explanation as to why the leak went on for eight days and explained that she believed that she needed a new ceiling due to the extent of the damage.
8. During the landlord’s investigation of the complaint, its contractor informed it that a cause of delay may have been that it could not gain access to the flat above on 24 December 2020; however, its plumber should have attempted a “make safe” but did not reattend until 31 December 2020, likely when the resident pursued the repair, causing a seven-day period of delay. At this time the landlord located the leak and “made safe”. The contractor confirmed its supervisor visited on 18 January 2021 and recommended that it scrape back and plaster the bathroom ceiling, complete a mould wash to the cupboard ceiling and paint both ceilings. It could not schedule the works until 19 and 20 April 2021 due to availability and it first needing a contractor to ensure the property’s asbestos was removed as its plasterer would expose this, if not.
9. In the landlord’s stage one complaint response, dated 9 April 2021, it confirmed the actions taken thus far. It explained that it was unable to find evidence of an appointment for 26 December 2021 and apologised for any confusion regarding this. The landlord acknowledged that its contractor attended on 18 January 2021 and recommended follow-on works, but this was not picked up until the resident complained. It confirmed it had booked the follow-on works for 19 and 20 April 2021 and apologised for the delay in the work being booked in.
10. During a telephone call between the resident and landlord on 15 April 2021, the resident said she sent the landlord a letter and it had not answered all comments in her letter in its complaint response. The landlord advised the resident, that it did not receive the letter the tenant referred to. On 16 April 2021 the landlord received the resident’s letter, which detailed a timeline of calls and appointments.
11. The landlord internal records say that on 23 April 2021 the resident asked to escalate her complaint because it had not responded to her letter within its stage one complaint response. The landlord noted that the resident was aware it did not receive her letter until after the complaint response was sent.
12. On 5 May 2021 the landlord raised the follow-on works to the resident’s bathroom and cupboard ceiling.
13. In the landlord’s stage two complaint response, dated 7 May 2021 it said that the delay in finding and resolving the leak was due to difficulties accessing the property above the resident’s home, and difficulties in finding the cause of the leak once access was given. It apologised for the delay. The landlord also noted that it had checked its records and could find no record of a call from the resident on 1 January 2021, requesting that a plumber attend.
14. The landlord confirmed its contractor had inspected the bathroom ceiling and advised that it did not need replacing. It reiterated the works recommended and confirmed it would carry them out on 7 June 2021.
15. On 13 May 2021 the landlord internally advised that it had spoken with the resident, who asked it to escalate her complaint. It said that the resident advised that the date of 1 January 2021 referred to in its last response was incorrect, and she did not say this date (the landlord said it apologised to her and said this date was referred to because this was included in the stage two complaint). The landlord said the resident asked for compensation for the distress and inconvenience caused between 24 and 31 December 2020, when the water was shut off. The resident expressed that she was concerned about using electrics during this time in case they were unsafe and she was also concerned about the safety of the bathroom ceiling. The resident also said that she had a chest infection soon after the leak, which she attributed to the situation within her flat. The landlord advised it had offered the resident £200 for the distress and inconvenience, which the resident declined and said she sought much higher compensation.
16. In the landlord’s final complaint response, dated 6 July 2021, it apologised for the inconvenience caused by the delays in it completing the repair. It said it discussed its failings and would ensure it learned from them by putting extra measures in place to ensure this (it did not clarify what these were). The landlord offered the resident £300 compensation, including the £200 previously offered, for the inconvenience and damage caused to the resident’s bathroom as a result of the delay in turning off the water and repairing the ceiling.
17. It confirmed it was attempting to reschedule an appointment to visit the property to carry out follow on works and reminded the resident that it was required to give her reasonable notice to carry out repairs, and the resident was required to give the landlord reasonable access for inspection and repair in accordance with her tenancy agreement. The landlord asked the resident to make contact to arrange this appointment.

Assessment and findings

The landlord’s repair obligations

18. In line with the tenancy agreement, the landlord must maintain the structure and outside of the property (and building if it owns it). It also must give the resident reasonable notice before it enters her home to inspect the property or carry out repairs to the resident’s or a neighbour’s home. However, in an emergency it may have to enter the resident’s home straight away without prior notice.
19. The tenant’s handbook confirms that the landlord is responsible for repairs to internal walls, major plaster work, and textured coatings to walls and ceilings.
20. The landlord prioritises repairs as follows in the tenant’s handbook:
    1. Priority 1 (emergency – attend within 2 hours): When the repair poses a danger to people or property, such as: burst pipes, total loss of an electricity supply, or overflowing sewage.
    2. Priority 1 (emergency gas repairs – attend within 24 hours): For gas heating or hot water breakdowns.
    3. Priority 2 (at the resident’s convenience): For all non-emergency responsive repairs. Appointments will be booked at the convenience of the resident, but work should be completed within 28 days. The first appointment may be for an inspection only and not to carry out the work.
21. The tenant’s handbook explains that it is the landlord’s job to deal with any leaks to the water supply in the property. Leaks outside the resident’s property may have to be repaired either by the landlord or by the water supplier. 
22. In the landlord’s compensation policy and procedure, there is a matrix for the landlord to calculate compensation for service failures. The matrix recommends compensation of up to £200 where there is full responsibility by the landlord and a medium impact on the resident. It recommends compensation of up to £500 where there is full responsibility by the landlord and major impact on the resident.
23. The compensation policy and procedure defines medium impact as where “the compensation event is clearly an injustice to the resident and the landlord has markedly failed to meet the required standards. A repeated failure of the landlord to address the shortcoming, even of a low impact event, could give rise to consideration of medium impact of compensation”.
24. It defines major impact as:” related to a serious failure in service standards. It could either be the severity of the event or a persistent failure over a protracted time or an unacceptable number of attempts to resolve and address the complaint.”

Assessment

25. There were clear failings in the landlord’s handling of the leak. In particular, there was a seven-day delay (in line with the timeframes set out in the landlord’s tenant’s handbook) in the landlord accessing the neighbour’s property to shut off the water and identify the cause of the leak. There was also a seven-day delay in the landlord confirming what follow-on works were required to the resident’s property.
26. Although there is no evidence to suggest that temporary repairs were required to make safe the ceiling, or electrics during the delays between 24 and 3 December 2020, the uncertainty of whether the ceiling and electrics were unsafe caused understandable distress to the resident. Therefore, once the landlord resolved the substantiative issue and acknowledged its failing, it was necessary for the landlord to pay compensation for the avoidable distress and inconvenience caused to the resident by this service failure.
27. The landlord offered to pay the resident £300 for the service failures identified but the resident has explained that she is seeking a much higher figure and has referred to the impact that the leak had on her health and wellbeing.
28. The Ombudsman’s own awards of compensation are not intended to be punitive and do not offer damages in the way that a court might. Furthermore, the Ombudsman’s awards are generally moderate, taking into account the landlord’s need to make the most effective use of its limited resources as a social landlord. Whilst we do not doubt the resident’s comments about her health, this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Such matters may be better suited to be pursued as a claim for personal injury through court. This is a legal process, and the resident should seek independent legal advice if she wants to pursue this aspect of her complaint. However, consideration has been given to the general distress and inconvenience which the situation has caused the resident.
29. In offering compensation for service failures, landlords should consider the severity of the situation and the length of time involved as well as any other relevant factors.  The Ombudsman’s remedies guidance (published on our website) recommends compensation of £250-£750 for cases where there was considerable service failure or maladministration, but there may be no permanent impact on the complainant. Examples could include: a resident repeatedly having to chase responses and seek correction of mistakes, necessitating unreasonable level of involvement by the resident; and failure over a considerable period of time to act in accordance with policy – for example to address repairs. The landlord’s offer of £300 is in line with what the Ombudsman would order the landlord to pay if it had not already made an offer.
30. In identifying whether there has been service failure or maladministration, the Ombudsman considers both the events that initially prompted a complaint and the landlord’s response to those events through the operation of its complaints procedure. The extent to which a landlord has recognised and addressed any shortcomings and the appropriateness of any steps taken to offer redress are therefore as relevant as the original mistake or service failure. The Ombudsman will not make a finding of maladministration where the landlord has fully acknowledged any failings and taken reasonable steps to put things right for the resident.
31. Whilst it is acknowledged that the resident has found the situation distressing, the evidence demonstrates that the landlord ultimately took reasonable steps to meet its obligations to her and to undertake repairs which fell within its remit to complete. There were delays in the landlord attending to make safe and confirm what follow-on works were required, which constituted a failure in service. However, the landlord subsequently took the opportunity of the formal complaints process to fully investigate the reports, formally confirm its position, and adequately redress those failings by completing the repairs and offering appropriate compensation.

Determination (decision)

32. In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to our investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Reasons

33. There were delays in the landlord attending to make the leak safe and confirm what follow-on works were required, which was a failure in service. However, the landlord took the opportunity of its complaints process to investigate the reports, confirm its position, and address those failings by completing the repairs and offering appropriate compensation.

Recommendation

34. It is noted that the landlord was attempting to arrange an appointment with the resident to complete follow-on works to her ceiling at the time of its final complaint response. If the repairs have not yet been done it is recommended that the landlord arranges to complete the works as soon as possible.