Camden Council (202115129)

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REPORT

COMPLAINT 202115129

Camden Council

12 October 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 response to the resident’s concerns regarding:
1. Service charges.
2. The upkeep and maintenance of the building.
3. The communal water tank.
4. Fire safety.
5. Refuse collectors.
The Ombudsman has also considered the landlord’s complaint handling as part of the assessment.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint, or aspects of a complaint, will not be investigated.
Paragraph 42(e) of the Housing Ombudsman Scheme sets out that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, concern the level of rent of service charge, or the amount of rent or service charge increase
Paragraph 42(g) of the Housing Ombudsman Scheme sets out that the Ombudsman may not consider complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure.
As part of the resident’s complaint she raised concerns concerning the level and reasonableness of the service charge bill for the Better Homes Programme. The resident suggested that, as a result of the landlord’s failure to maintain the building over many years, the service charge for the Better Homes Programme had significantly increased which was unfair. The resident also raised concerns that the service charge for the district heating system was excessive.
The First Tier Tribunal Property Chamber (the FTT) deals with residential leasehold disputes between leaseholders and their landlords. The FTT can make determinations on all aspects of liability to pay a service charge, including how much and when a service charge is payable. In order to decide liability the FTT also decides whether service charge costs have been reasonably incurred and if so whether the standard of any service or works for which the costs are charges is reasonable.
In accordance with paragraphs 42(e) and 42(g) of the Housing Ombudsman Scheme the Ombudsman will not consider the resident’s concerns regarding the fairness of the service charge for the Better Homes Programme or district heating system, as these concerns are about the level of service charges and, in the Ombudsman’s opinion, it would be more effective for the FTT to consider this aspect of the complaint.

Background and summary of events

Background

The resident was the leaseholder of the property (the property) subject of the complaint. The landlord is the freeholder.
The resident purchased the property in September 2012. The resident sold the property in March 2023.
The property is a flat situated on the top floor of a purpose built building (the building).
The Better Homes Programme (BHP) will be referred to throughout this report. The BHP is a programme of major works. Major works are defined as decoration, repairs, improvements or refurbishments that are necessary to keep a residential building in a satisfactory state of repair.

Summary of events

On 1 March 2021 the resident submitted a complaint to her MP about the landlord in relation to the upkeep and condition of the building. The resident stated that due to neglect by the landlord over many years the building was “deteriorating”.
Following her complaint on 1 March 2021 the resident submitted two addendums (16 March and 5 May 2021) to her MP providing updates and additional information to support the complaint. Within her three pieces of correspondence the resident provided a comprehensive breakdown of her concerns. In summary the resident said:
1. In respect of the BHP:
  1. She brought the property in 2012 “with the understanding that the BHP was to take place the year or two following” to improve the condition of the building. She noted that that the building had been in a state of disrepair “long before” she became the leaseholder of the property. She stated that she was informed in 2012 that the cost of the BHP would be approximately £15,000 per leaseholder. She stated that the most recent estimate for the BHP had increased to £32,000 per leaseholder.
  2. No works to improve the condition of the building had taken place under the BHP despite several consultations. She stated that while the BHP was outstanding the building had deteriorated as a result of the landlord’s “lack of investment”. She stated that the landlord had therefore breached the terms and conditions of the property’s lease to repair and maintain the building.
  3. Despite repeated requests to the landlord for updates including timescales and the scope of works proposed under the BHP clarity had not been provided.
  4. On 13 April 2021 she met the landlord, along with other leaseholders, to discuss the BHP. She stated that during the meeting the landlord acknowledged that the building had a “historical lack of financial investment” due to its decisions. She stated that the landlord therefore confirmed that it would take “into account [leaseholders’] position on the fairness of increased sums due to neglect”.
  5. She believed that the BHP for the building had been delayed as the landlord had at one time considered redevelopment.
  6. She had been unable to complete internal renovations in the property due to the outstanding BHP.
  7. The landlord had failed to understand that the condition of the building impacted on her ability to sell or rent the property and its failure to swiftly progress the BHP had resulted in “mounting costs” to remedy the issues.
2. In respect of the communal water tank (the tank):
  1. On inspecting the roof on 22 February 2021 she discovered that the tank situated on the building’s roof was not shut and as a result had become contaminated by pigeon “faeces and feathers”. She stated that she reported the issue to the landlord “immediately”.
  1. On 23 February 2021 the landlord’s contractor disinfected the tank but found it could not be cleaned properly due to its age and condition. She confirmed that a new tank was therefore ordered. She stated that that contractor reported that there was “no evidence that [the tank] had been maintained” and deposit which she had noticed in the property’s water supply could be “rust and eroded metal” from the tank.
  2. On 1 March 2021 she inspected the water tank, which was waiting to be replaced, and found feathers and faeces “floating on the surface” suggesting that it had not been properly disinfected on 23 February 2021.
  3. Residents were not given prior notice regarding the work to replace the tank which commenced in mid-March 2021 which was unsatisfactory as the building’s water supply had to be turned off during the works.
  4. During work to replace the tank the landlord’s contractor did not take care to remove insulation material. She stated that she was concerned that the insulation may contain asbestos. She also noted that the contractor did not close the window to the tank room which had allowed pigeons to re-enter the room.
  5. The landlord had not been in attendance during the works to replace the tank.
  6. The landlord had failed to take samples from the contaminated tank prior to undertaking the works to remedy the issue.
  7. The landlord had failed to take water samples from all properties following the replacement of the tank to provide reassurances that the building’s water was safe. She stated that three properties had had testing, including her own, with one showing signs of on-going contamination.
  8. Since late 2019 many residents within the building had been poorly including with stomach issues, nausea, fatigue and dizziness which appeared to be as a result of the contaminated tank. She noted that she was undergoing testing with her GP.
  9. She had reviewed the maintenance logbook for the tank which showed that it had not been inspected since January 2020. She stated that prior to this the most recent entry was dated 2017.
  10. The landlord had not provided the building’s leaseholders with any information regarding a contribution they may be required to pay towards the replacement of the tank. She stated that leaseholders should not been charged as the tank only required replacement as it had not been maintained historically by the landlord.
  11. The landlord had failed to take “accountability” for the contamination of the tank. She stated that the landlord had failed to report the contamination to Environmental Health or Public Health England.
3. In respect of fire safety:
  1. Despite reporting to the landlord “three years ago” that she had identified that there were no fire breaks in the building’s service vents it had failed to take action to address the issue.
  2. Despite the landlord being aware that the gas meter was not boxed in, it had failed to take action to address the issue.
4. In respect of the building’s windows and other repairs:
  1. Windows and “decorative window box tiles” had fallen from the building onto the street. She added that the windows were “rotten through”. She stated that despite the landlord being aware of the issue for many years it had not taken action to replace the windows. She noted that she was aware that one leaseholder had screwed shut the windows in their property for safety reasons.
  2. Repairs to the building had been completed to a poor standard or not at all. She cited a repair to the car park gate as an example. She stated that this was in part because the landlord did not oversee the work of its contractors and its record keeping for repairs was unsatisfactory as follow on jobs were recorded as new work orders instead of related jobs.
  3. The landlord had not responded to her recent contact reporting that the property had experienced internal damage due to “water from the roof/ rotten window entering the cavity wall”.
  4. During the work to replace the tank she learnt that the water pipes servicing the properties within the building were out of date and in poor condition and appeared to have never been inspected or serviced.
5. In respect of other issues:
  1. Despite evidence being provided to the landlord, by a neighbouring leaseholder and the building’s caretaker, showing refuse collectors urinating in the building’s bin store it had failed to address the situation. She also noted that the refuse collectors had made a threat towards the building’s caretaker.
  2. The Housing Officer gave the impression that she was “incompetent at best and divisive at worst”. She stated that the HO failed to attend to important issues and comprehend the poor condition of the building. She noted that she had also learnt that the HO had breached data protection by sharing confidential information about residents to other residents. She also stated that the HO had handled the installation of gym equipment by residents in the communal area during the Covid-19 pandemic poorly.
  3. The landlord had never replied to her concerns regarding the property’s service charge portion for the district heating system which she believed was excessive.
  4. The landlord had failed to be flexible in respect of the payment of her service charge. She confirmed that the landlord had declined her request to make payment over a period of 12 months rather than nine.
The Ombudsman understands that the resident’s MP shared the resident’s complaint correspondence with the landlord who provided a formal response on 17 May 2021. In summary the landlord said:
1. It understood that the resident’s complaint concerned four areas, namely:
  1. “Property service queries about repairs and planned works”, which included the tank, fire safety, windows, general condition of the building and the BHP.
  2. Refuse collectors.
  3. “Housing officer support [for] the [building]”.
  4. “Payment options for leaseholders”.
2. In relation to the tank:
  1. The tank was disinfected on 23 February 2021 It confirmed that samples were taken once the tank had been disinfected which showed that the water was safe.
  1. On 8 March 2021 the contractor informed it that the tank required replacement.
  2. Temporary tanks were connected on 15 March 2021 with the installation of the new tank completed on 22 March 2021.
  3. Samples were taken from three properties in early April 2021 to ensure the water was safe. It confirmed that this action was agreed following a meeting with residents.
  4. Results from the water samples showed that the water from two of the properties was “clean and wholesome” however the results from the third property came back with “low levels of coliform”. It confirmed that the issue was a “localised one and not a systemic one as the other two properties came back clean and the [tank] was clean”.
  5. On 16 April 2021 it retested the water from the third property following cleaning and disinfecting of the property’s tap and the result came back confirming that the water was “clean and fit for use”.
  6. It had carried out a repair to the tank room window to ensure that it stayed shut to prevent birds entering.
  7. On 23 April 2021 it was contacted by Public Health England regarding the tank and it provided information confirming the “measures that had been taken” to address the issue. It confirmed that Public Health England were “thankful” for the update.
  8. Its contractor had “inspected the tank every six months, in line with their contract” and had “fulfilled all water tank service orders at [the] site with the last being completed in January 2021”. It confirmed that the condition of the tanks should however have been identified and escalated by the contractor for which it apologised.
  9. The contractor had provided the sample results from their attendance in July 2020 and the results were “clear”. It noted that samples were taken “annually” in line with its water hygiene policy.
  10. It had issued instructions to the contractor to ensure that the tank lid was sealed tight, the log books remained up to date at all time and instances of poor conditions were always escalated.
3. In respect of fire safety:
  1. The “matters” raised by the resident would be addressed by the scope of works for the planned BHP.
4. In respect of windows:
  1. There was no evidence to suggest that it had screwed the windows shut in a leasehold property in the building.
  2. The windows in the building would be replaced through the BHP.
5. In respect of the general condition of the building:
  1. The resident’s concerns regarding the repairs service had been fed back to its management team.
  2. It was not possible for it to arrange one of its own officers to attend all repairs. It confirmed that “trust” was put into tradespeople to carry out a work order and “there could be a number of reasons for a second repair order”.
6. In respect of the BHP:
  1. It was addressing the concerns raised over the condition of the building with the planned BHP.
  2. Consultation with residents started in 2019 regarding the scope of work. It confirmed that “further consultation [would] take place”. It noted that it had received “positive” feedback regarding how it had handled the consultations so far.
  3. The initial scope of work was to replace the windows, to carry out roof works and decorate the common parts. It confirmed that the scope had expanded following leaseholders requesting “more extensive consultation on other areas of concern”. It confirmed that this included the way properties were provided with heating and hot water and concerns about fire safety.
  4. The scope of work now included replacement of the heating system from a district system to flat specific systems and fire compartmentation.
  5. It had undertaken a full measured survey of the residential and commercial parts of the building to ensure that service charge apportionment was appropriate.
1. In respect of refuse collectors:
  1. It had investigated a report from October 2020 alleging that refuse collectors were urinating in the bin store which had included contact with the local authority. It confirmed that the investigation was unable to identify anyone responsible for such behaviour.
1. In respect of housing officer support:
  1. It was sorry that the resident was unhappy with the service provided by the HO.
  2. The HO had been working from home due to the pandemic and therefore would not have been visible to residents. It confirmed that the HO had however been responding to concerns raised by residents which included the tank.
  3. It was appropriate that the HO had raised concerns regarding the make shift gym which had been constructed in the communal areas of the building as it was a health and safety issue.
  4. The HO had denied breaching data protection by inappropriately sharing information about residents.
1. In respect of payment options for leaseholders:
  1. It recognised that some leaseholders may find it difficult to meet the costs of a major works bill. It confirmed that it therefore offered a number of different payment options, in addition to what was specified in a property’s lease.
  2. The options included “interest free periods up to five years” and “interest bearing loans up to 25 years” along with “a hardship scheme” which would allow a leaseholder to defer payment in certain circumstances. It noted that the payment schemes were only available if the leaseholder occupied their property as their only or principal home.
On 6 June 2021 the resident responded to the landlord’s stage one response via her MP. The resident stated that the response was “unsatisfactory” and failed to address all the issues which she had raised across her three complaint documents. In summary the resident said:
1. In respect of the tank:
  1. The landlord had underplayed the situation. She stated that, had she not identified the pigeon contamination in February 2021, the problem would not have been rectified for at least another six months.
  2. She disputed that the tank was maintained and serviced appropriately as the tank logbook did not document that this had occurred.
  3. The landlord had not addressed that the contractor had failed to take a water sample prior to undertaking work to decontaminate the tank.
  4. Water samples were only taken following the tank replacement as leaseholders had made the request and not because of the landlord’s own initiative.
  5. The landlord had failed to provide assurances that all properties within the building had a clean water supply by refusing to take a sample from each property.
  6. The landlord had failed to address potential asbestos exposure during the works to replace the tank.
  7. There was no fault with the tank room window staying closed, instead the window was open because of the actions of the contractor.
  8. The landlord had put a “positive spin” on its contact with Public Health England regarding the contamination.
2. The landlord’s response that the fire safety works and window replacements would be covered in the BHP was unsatisfactory, including as no reassurances had been given and the matters had been outstanding for a significant period of time without action.
3. The landlord had acknowledged historically that its repairs service had been poor however its response had not demonstrated any improvement. She stated systems needed to be implemented by the landlord so that checks were undertaken to ensure its contractors were completing repairs to an appropriate standard.
4. In respect of the BHP:
  1. The BHP should have been concluded for the building by 2017 as documented in the paperwork for the sale of the property.
  2. The scope of works to be included in the BHP had grown due to the failings of the landlord to take “action on repairs and works that needed to be done” and not due to requests by residents.
1. She disagreed with the landlord’s conclusion regarding the refuse collectors urinating in the bin store. She stated that CCTV was available at the time however it appeared that it had “been removed from the public record”.
2. She maintained that the HO’s attitude in respect of the condition of the building was unsatisfactory as she had failed to acknowledge that the building was in a state of disrepair, including by making “flippant” comments that it only needed a lick of paint.
3. It was unfair that the landlord had attached conditions to the payment plans it was able to offer in respect of a leaseholder’s contribution towards major works. She stated that it was also unclear whether the landlord was able to grant a loan under current financial regulations.
On 3 November 2021 the resident wrote to the landlord to escalate the complaint. The resident opened by stating that it was unsatisfactory that she had not had a response to her correspondence dated 6 June 2021. Within her escalation the resident reiterated her concerns from her previous complaint correspondence emphasising that the building was in a poor condition due to neglect by the landlord and a failure to invest any money into it. Additionally the resident noted that:
1. Pipework was in poor condition and had not been maintained.
2. She was concerned regarding the chemicals used during the process to disinfect the tank in February and March 2021, believing that they were harmful to residents’ health.
3. She had identified that the tank had previously been contaminated in 2018 following a review of records which stated the presence of “foreign bodies”. She noted that residents had not been informed of the incident.
4. She had identified that the tank which supplied the district heating system did not have a lid and therefore was open to contamination. She noted that the boiler room which housed the district heating system had a rat infestation and therefore the tank could have been contaminated. She stated that she was aware that residents had become ill following leaks from the radiators.
5. The landlord’s fire safety reports for the building were “incomplete and inaccurate”. She stated that the reports did not accurately reflect the age of the building, the location of the gas meter box or acknowledge that fire extinguishers had been removed. She also questioned the fire evacuation strategy for the building suggesting that staying put or evacuating the building both had significant risks.
6. The contractor who had been commissioned to undertake the BHP had pulled out of the contract due to delays by the landlord.
7. The landlord was yet to offer a repair to make good damage in the property following a leak from the building’s roof which was a result of neglect and a failure to repair.
8. The market value of the property had been impacted due to the condition of the building which was a direct consequence of both the landlord’s action and inaction. She stated that the landlord should consider buying back the leasehold properties.
The resident concluded by stating that the landlord’s decision to hold off works to repair the building amounted to “civil negligence” and a breach in housing and health and safety laws.
On 8 December 2021 the landlord provided its stage two, final, response. The landlord opened up by apologising for the delay in its response, explaining that this was due to the amount of information it was required to review and noting that the resident’s concerns dated back “nine years”. In summary the landlord said:
1. In respect of the tank:
  1. Its stage one response detailed how it had responded to the contamination of the tank. It reiterated its apology that pigeons had been able to access the tank and contaminate the water.
  2. Contamination of the tank must have occurred after July 2020 as the sample taken at that time was clear.
  3. The chemicals used in the tank were “compliant with industry standards” and were used appropriately. It confirmed that water samples had been taken from the tank to ensure that the water was safe and would be taken in the future also.
2. If the resident wished to bring a disrepair claim against it about its maintenance of the building she was entitled to do so. It confirmed that a disrepair claim was a legal matter which was dealt with outside of the complaint procedure.
3. It did “not agree that the [building] had been neglected”. It set out that “repair needs had occurred” but these had been addressed by its reactive repair service or were due to be addressed as part of the BHP.
4. Progress with the BHP “continued”. It apologised if the BHP was not progressing as quickly as the resident would like however it “was working to have the work done as quickly as [its] resources allowed”. It confirmed that it would ask that an update was sent to residents with “intended timeframes for remaining works”.
5. Work to replace the district heating system to a flat specific system was “commencing”.
6. The resident should report any pest control issues to it for remedial action.
7. The fire safety works were included within the scope of the BHP.
8. The windows in the building were due to be replaced within the BHP. It added that the windows were inspected in 2018 and advice was given to residents to minimise condensation and the effects this could have on a property.
9. It was understood that the resident had submitted a public claim form to progress a claim for damage to the property from a roof leak. It confirmed that this remained “a matter for consideration under [the] insurance process” and was not something that could be consider under the complaint procedure.
10. It did not agree that it was guilty of breaches to the property’s lease.
11. It was sorry if the property had lost value, however it did “not indemnify leaseholders for such losses”. It noted that it had done some “internet research” which indicated that the property had “increased in value by 41%” since 2012 however it acknowledged that this was “hypothetical”.
12. It did occasionally buy back leasehold properties however it was under no obligation to do so. It confirmed that the resident may make a formal request to buy back the property which it would consider.
The landlord concluded by confirming that it did not uphold the complaint as it felt it had acted reasonably in seeking to address and process repair needs within the building. While it accepted that there had been “problems” with the building it had taken steps to address those issues as best it could. In concluding its response the landlord confirmed that issues relating to service charges, including the reasonableness of those charges, could be raised with the First Tier Tribunal property chamber (FTT).
On 9 December 2021 the resident replied to the landlord setting out that she strongly disagreed with its conclusion, including that all points raised had not been satisfactorily addressed including in respect of the use of chemicals and fire safety. She reiterated that the landlord had “left the building to rot” by failing to take action to keep it in good and proper repair. Within her correspondence the resident again reiterated her concerns from her previous correspondence adding that the landlord had acknowledge in written communication to her that the condition of the building was “dire” with maintenance issues which required addressing.
The landlord has confirmed to this Service that as of mid-2023 the BHP is underway.

Assessment and findings

Scope of investigation

The Ombudsman acknowledges that the resident sets out that elements of her complaint, including her concerns regarding the landlord’s upkeep and maintenance of the building and delay in undertaking major works, date back to 2012 when she became the leaseholder of the property. While the Ombudsman notes that the resident’s concerns are long-standing, we also note that the resident did not refer her concerns to this Service for consideration until receipt of the landlord’s final response dated December 2021.
In view of the time periods involved in this case, taking into account the availability and reliability of evidence, this assessment will only consider events from early 2020, which is approximately one year from the date of the resident’s stage one complaint which she later referred to this Service. This is because as the substantive issues become historic it is increasingly difficult for an independent body, such as the Ombudsman, to conduct an effective review of the earlier actions taken by the landlord to address those matters. This is also in accordance with paragraph 42(b) of the Housing Ombudsman Scheme which sets out that the Ombudsman may not consider complaints which in the Ombudsman’s opinion were brought to the Ombudsman’s attention normally more than 12 months after they exhausted the member’s complaints procedure.

The landlord’s response to the resident’s concerns regarding the upkeep and maintenance of the building

In determining this aspect of the complaint the Ombudsman will consider the landlord’s overall response to the upkeep and the maintenance of the building rather than looking at individual repair or maintenance issues. The Ombudsman considers that this is a proportionate approach taking into account the nature of the resident’s complaint that the building was in a poor condition due to neglect by the landlord and a failure to invest any money in addition to delays in undertaking the BHP.
While the Ombudsman will not be considering any specific events prior to the start of 2020, the Ombudsman has reviewed the historical information provided by both parties from the date the resident purchased the lease. This is because the historical information provides contextual background to the landlord’s actions in responding to the resident’s concerns since early 2020.
Following a review of the historical information the Ombudsman notes the following in relation to the complaint:
1. As part of the resident’s paperwork for the sale of the property in 2012 the landlord set out that the building was included in the BHP with works due to take place “over the next five years”. It set out that the works included “external works and redecoration” and a “cavity wall insulation programme” with an estimated cost of £15,250.
2. In April 2014 the landlord wrote to the resident to confirm that the BHP works would include works to the “roof, fabric of the building and window works”. Within its correspondence the landlord confirmed that “2017/2018” was a “reasonable” time for the works to be undertaken.
3. In correspondence to the resident dated September 2017 the landlord set out that the building had been “placed in and out of the [BHP] programme on numerous occasions based on regeneration rumours “which never [seemed] to materialise”. Within its correspondence the landlord acknowledged that pictures of the building showed it was in a “fairly dire” condition with “recurring issues for the last four or so years”. The landlord confirmed that the repair issues, including the windows and external fabric of the building, would form part of the “future works due to take place” under the BHP.
4. In November 2018 the landlord issued a Notice of Intention detailing the work it planned to carry out to the building under the BHP. The notice set out that the cost per leaseholder was approximately £32,500 with works including:
  1. Communal repairs – “single communal stairwell. Sheet vinyl to stairs and corridors. Painted walls, ceilings and balustrading to external walkways”.
  2. Estate works – “work to paving and asphalt finishes”.
  3. External repairs – “minor repairs to brickwork”.
  4. Fire risk assessment work – “legal requirement for compliance”.
  5. Roof works – “asphalt roof covering with patch repairs throughout as it [was] currently in poor condition”.
  6. Window works – “predominantly single glazed softwood casement windows. Crittall windows to the communal areas”.
5. In June 2019 the landlord commissioned a report on the condition of the building. While the purpose of the report is not clear it identified “155 issues” which required attention. The issues identified included rendering, roofing, windows, handrail, gas pipe, soffits, communal doors, intercom, fuse cupboard, asbestos, brickwork and lagging for pipework. The report contained photographs documenting the repair issues.
6. On at least two occasions, including in 2013 and 2017, windows or window elements from the building had fallen to street level.
This evidence indicates to the Ombudsman that the building did require attention from at least 2012 as repair and maintenance issues were highlighted from this time onwards. It also indicates that the landlord was aware that aspects of the building required attention as it was making plans to undertake major works and had a report confirming issues requiring action.
In May 2020 the landlord commissioned a Roof Survey Report to evaluate the condition of the roof. The report confirmed that there were issues with the roof which included that water was able to “enter and track through” the current membrane system. The report confirmed that if no intervention was taken by the landlord the roof would continue to “deteriorate”. The report also noted that a previous survey undertaken in January 2018 “identified high levels of moisture… and that the roof was beyond salvage”. The Ombudsman has not identified any immediate action in response to this report by the landlord. This is unsatisfactory as the report suggested that urgent intervention was necessary.
On 9 November 2022 the landlord issued a new, second, Notice of Intention detailing the work it planned to carry out to the building under the BHP. The second Notice of Intention set out that the cost per leaseholder was approximately £33,000 with works including:
1. Communal repairs – “the existing decoration to the walls, ceiling and flooring is aged and in poor condition. The walls and ceilings are to be decorated with Class O paint and the flooring to be deep cleaned and repaired where necessary. Overhaul external door entrance to bring it in line with the street…”
2. Energy efficiency – “install insulation into existing wall cavity within dwellings”.
3. Estate works – “The existing decoration to walls, floors, surfaces, ceiling and balustrading is aged and in poor condition so requires overhauling and or/ associated works to improve the condition of the communal areas as part of [the landlord’s] cyclical decorations programme”.
4. External repairs – “existing exterior decoration to surfaces, doors, soffits, railings, windows and metalwork is aged and in poor condition so requires repairs to the render and masonry on the exterior of the building. Repair and repaint and metalwork including gates and balustrades”.
5. Fire risk assessment work – “In order to comply with current fire regulations and legislation [the landlord] is required to attend to all items listed with the fire risk assessment to afford full protection against fire. This includes renewing front entrance doors, communal emergency lighting and fire/ smoke detection within the building”.
6. Rain water goods – “roof drainage outlets and drains need unblocking and flushing out…”
7. Roof works – “the roof has been surveyed and a moisture mapping survey has been carried out. Due to historical leaks to this building and current saturations of the roof a full replacement is required”.
8. Window works – “existing windows to flat and communal stairwell require replacing as they are in very poor condition with most of the internal windows in the flats being rotten. A few of the windows have been locked shut as they are a health and safety hazard”.
The Ombudsman notes that the works listed on the second Notice of Intention are more extensive than those listed on the original Notice of Intention. This reasonably suggests that the first Notice did not identify all issues requiring attention or that there had been a deterioration in the condition of the building between the Notices, including due to the time which had passed, a period of approximately four years.
The landlord has explained to this Service that a second Notice was required as “sometime after the first [Notice] the scope changed considerably…. [which] required [it] to restart the consultation completely”. While the evidence shows that between November 2018 and November 2022 there were discussions between the resident, other leaseholders and the landlord regarding the scope of works to be undertaken as part of the BHP it is not clear why there was a period of approximately four years between the two Notices, which is a significantly protracted period of time. Although the Ombudsman acknowledges that the Covid-19 pandemic occurred during this four year period, which will likely have impacted on timescales, the landlord has however not offered any comprehensive explanation to the resident for the unacceptably protracted delays which take into account what she was told when she brought the property in 2012 regarding the BHP. The Ombudsman suggests that revision to the original scope of works, including discussions with the resident and other leaseholders, could have been undertaken and completed within a much shorter timeframe. The landlord’s poor communication has therefore been taken into consideration in the Ombudsman’s overall finding on this part of the complaint.
In the Ombudsman’s opinion the landlord should have ensured that the BHP was progressed much more efficiently. This takes into account that the landlord had originally indicated in 2012 that the BHP would be concluded by 2017, it had stated in 2017 that the building was in a “fairly dire” condition, it had a report dated June 2019 confirming multiple issues which required attention and the roof survey dated May 2020 indicated that immediate intervention was required to the roof to prevent further deterioration. The landlord’s approach to ensuring that the building was kept in a reasonable state of repair was therefore unsatisfactory. This is because despite being aware of repairing and maintenance issues for many years the evidence does not show timely action by the landlord to remedy those matters. It is also particularly concerning as some of the repairing and maintenance issues included on the Notice of Intentions related to defects and faults which required prompt attention to avoid detriment to the building. This included the building’s roof and windows. On the landlord agreeing that major works were required to the building it should have taken steps to ensure that they were scheduled, undertaken and completed within a reasonable and timely manner which has not been the case here.
While the landlord’s repairs record for the building document that the landlord was completing responsive repairs during the period under investigation, it does not mitigate that the landlord failed to ensure that the BHP was progressed in a timely manner. This is because the purpose of responsive repairs is to address unplanned and unanticipated repair issues as they arise rather than seeking to ensure that a building is maintained and kept to an appropriate standard. The Ombudsman notes that the landlord’s repair records for the building documents responsive repairs to address roof leaks, brickwork issues, guttering problems and faults to windows and doors which were all linked to repair and maintenance issues the BHP was intended to address.
During the period under investigation the resident reported to the landlord that the property had experienced water ingress which was due to delays in it undertaking the BHP. Based on the balance of probabilities and taking into account that the second Notice of Intention highlighted that the building’s roof needed replacing due to water saturation and the windows needed replacing as they were rotten, the Ombudsman accepts the resident’s position that the property was impacted as a result of the BHP not being completed within a reasonable timeframe. This would have adversely impacted on the resident’s living conditions and enjoyment of the property. Within the evidence for review the Ombudsman has not identified a comprehensive response or action from the landlord regarding the resident’s concerns regarding water ingress into the property. This is unsatisfactory and will have resulted in uncertainty, distress and inconvenience to the resident.

The landlord’s response to the resident’s concerns regarding the communal water tank

On receipt of the resident’s report that the tank was contaminated the landlord arranged for it to be disinfected within 24 hours. This was appropriate as under the terms of the property’s lease the landlord has a responsibility for maintaining systems for the supply of hot and cold water.
As the condition of tank was identified to be in a poor condition during works to disinfect it, it was appropriate that the landlord arranged for the tank to be replaced. The tank was replaced by 22 March 2021, a period of approximately 13 working days, following the resident’s initial report concerning the tank which the Ombudsman considers to be a reasonable time period.
While the landlord acted promptly in disinfecting and replacing the water tank, in the Ombudsman’s opinion it is unsatisfactory that the landlord failed to ensure that a sample of the water from the tank was taken prior to the task of disinfecting to establish if there was any bacteria or foreign bodies which may have been harmful to residents within the building. In not doing so it was unable to provide reassurances to the resident, and other residents, that they had not been in contact with or consumed water than could have presented a health risk.
Following replacement of the tank the evidence documents that the landlord took water samples from three of the nine properties to test that the water was clear, one of which was the resident’s. In the Ombudsman’s opinion the landlord’s approach was reasonable. This is because the sample from the water tank itself had come back clear and therefore testing all properties would be disproportionate. While one of the three properties came back confirming low levels of coliform the landlord was able to demonstrate that this was a localised issued and therefore this did not warrant additional testing of further properties. The Ombudsman notes that it was open to other residents in the building to request a water sample had they remained concerned regarding the integrity of the water supply into their own property.
The landlord has provided evidence of its communication with Public Health England from April 2021 in respect of the tank contamination. On receipt of the landlord’s update on the situation and the available test results Public Health England did not direct any follow up action by it or raise concern that it had not reported the contamination to it directly. The Ombudsman further notes in correspondence from Public Health England dated June 2021, which the landlord was copied into, it confirmed that “the water tank and pipe [had] been changed and all results [were] clear” and the water company “[had] carried out testing… [and] no further testing [was] necessary as the first result came back all clear”. The Ombudsman is therefore satisfied with the landlord’s communication and engagement with Public Health England. The correspondence also demonstrates to the Ombudsman that the landlord’s response to resolve the contamination was satisfactory, apart from its omission in taking a water sample prior to starting works to remedy the contamination.
The resident has provided correspondence from the water company dated June 2021 which sets out that water from the tank was in “breach” of the current standards for those parameters in “drinking water”. The Ombudsman notes that the correspondence however goes onto state that as the water was not drinking water the “sample collected from [the property’s] tap itself showed the parameters were all within standards”. This again reiterates to the Ombudsman that the landlord’s response to resolve the contamination was satisfactory.
As part of her complaint the resident stated that she was concerned that the tank had not been maintained and serviced appropriately as the tank logbook did not document that this had occurred. While the Ombudsman notes the resident’s concerns the landlord has provided a copy of its computerised records for the tank documenting a “six month service” and an “annual service” each year from 2018 which is appropriate. The Ombudsman recognises that it was unhelpful for the landlord to keep a logbook in the tank room when it was not kept up-to-date as residents could access this information which did not provide an accurate representation of the situation.
As part of her complaint the resident raised concerns regarding a previous contamination of the tank in 2018 and failure to action a historic report that the tank was corroded. This investigation will not consider the landlord’s actions in respect of these matters for the reasons given within the scope of investigation section above. However the Ombudsman notes that within correspondence to the resident dated 4 August 2021 the landlord set out how it would continue to make sure that the resident’s water stayed safe going forwards. While the Ombudsman appreciates that it will not have lessened the resident’s concerns regarding the contamination of the tank in early 2021 it was appropriate that the landlord set out how it was “making sure [residents had] safe, clean water and a safe, clear water tank room now and in the future”.
While the landlord did not respond to the resident’s concerns regarding asbestos during works to replace the tank, the evidence shows that it did so in correspondence dated June 2021. The landlord explained that a “previous asbestos survey” carried out in the tank room confirmed that no asbestos material was present. It was appropriate that the landlord provided the resident with a reassurance that she had not been exposed to asbestos. The landlord’s repair records for the building confirm that an asbestos survey of the tank room was undertaken in 2016.
Within the landlord’s correspondence dated June 2021 it also responded to the resident’s concerns regarding the condition of the building’s pipework. In summary the landlord confirmed that the building’s pipework was “typical for a building of its age” and while it “accepted that [the pipework was] ageing they remained fit for purpose”. The landlord added that “recent water samples showed that the water supplies [had] extremely low bacterial activity and [was] clean and wholesome which [proved] that the internal condition of the pipework [was] not a cause for concern”. The landlord further explained that sections of pipework would be replaced were they were found to be in an unsafe condition. In the Ombudsman’s opinion the landlord’s reply was reasonable as it responded to the resident’s concerns regarding the age and condition of the pipework to provide reassurances. While the Ombudsman notes that the report dated June 2019 raised concerns regarding the pipework lagging the Ombudsman has not identified any repair or maintenance issues within the BHP or repairs records linked to the pipework itself.

The landlord’s response to the resident’s concerns regarding fire safety

In responding to the resident’s concerns regarding fire safety, which included the absence of fire breaks, the gas meter boxing, accuracy of fire risk assessments and evacuation strategy, the landlord set out that her concerns would be addressed through the BHP. While fire safety works were included within the scope of works for the BHP, as documented in the section 20 notices, it was unsatisfactory that the landlord failed to otherwise address the resident’s concerns as part of the complaint or other correspondence.
In responding to the resident the landlord should have set out how any specific risks were being mitigated while the fire safety works were outstanding in order to provide reassurances to the resident. In failing to do so it meant that safety questions remained outstanding which will have undoubtedly caused significant frustration and anxiety for the resident. It has also limited the Ombudsman’s ability to assess whether the landlord’s approach to addressing fire safety in the building was reasonable and appropriate.

The landlord’s response to the resident’s concerns regarding refuse collectors

The evidence shows that in response to the resident’s concerns regarding refuse collectors and their behaviour the landlord liaised with the contractor responsible for delivering the refuse collection service in both October 2020 and in March 2021. This was appropriate in order to determine whether there had been any inappropriate conduct which required attention by the contractor. From review of the landlord’s evidence its enquiry with the contractor did not return any evidence which it could take any further action upon.

The landlord’s complaint handling

It has been difficult for the Ombudsman to thoroughly assess the timeliness of the landlord’s stage one response as it is not clear how the resident’s complaint correspondence from the MP was referred to it. The Ombudsman however notes that following the resident’s final complaint addendum dated 5 May 2021 the landlord promptly provided its stage one response by 17 May 2021.
Despite the resident’s reply to the landlord’s stage one response dated 6 June 2021 the Ombudsman has not identified a specific response to the correspondence. This is unsatisfactory as the resident had clearly expressed concerns with the landlord’s response and the accuracy of its reply. The resident should therefore have received a reply from the landlord, including to try and bring the matters to a close and to inform her of her options in respect of the complaint.
On receipt of the resident’s formal request to escalate the complaint on 3 November 2021 the landlord did so, providing a response on 8 December 2021. While the landlord’s reply was provided outside of the prescribed 20 working days set out in the Ombudsman’s Complaint Handling Code this was by a period of three days only and therefore the delay will not have significantly impacted on the resident. However it was unsatisfactory that the resident was required to contact the landlord in November 2021 in order to obtain a response to her outstanding concerns following its stage one response. While her concerns went answered the resident will have felt that the landlord was not taking the complaint seriously and therefore will have experienced distress and inconvenience.
Overall the Ombudsman is satisfied with the content of the landlord’s stage one response as its response was comprehensive and did seek to address all issues subject of the complaint, despite the resident not agreeing with its position – which she was entitled to do. However in the Ombudsman’s opinion the landlord’s stage two response was not satisfactory as it failed to provide detailed and specific responses to all issues with the resident had raised. For example the landlord said that it disagreed that it neglected the building as it had offered a reactive repairs service however then did not go on to provide further information to support and demonstrate its conclusion. This was also repeated in respect of the resident’s fires safety concerns, the windows, pipework and the BHP. This is unsatisfactory as a complaint response should provide adequate reason and explanations to support its decision and actions, which the landlord did not provide in this case.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
1. Severe maladministration by the landlord in response to the resident’s concerns regarding the upkeep and maintenance of the building.
2. Maladministration by the landlord in response to the resident’s concerns regarding the communal water tank.
3. Severe maladministration by the landlord in response to the resident’s concerns regarding fire safety.
4. No maladministration by the landlord in response to the resident’s concerns regarding refuse collectors.
5. Maladministration by the landlord in respect of its complaint handling.

Reasons

The landlord’s response to the resident’s concerns regarding the upkeep and maintenance of the building

Despite the landlord being aware of repairing and maintenance issues for many years, which included to the building’s roof and windows, the evidence does not show timely action by the landlord to remedy those issues. On the landlord agreeing that major works were required to the building, it should have taken steps to ensure that they were scheduled, undertaken and completed within a reasonable and timely manner which has not been the case here. The landlord has therefore not been able to demonstrate that its approach to ensuring that the building was kept in a reasonable state of repair was satisfactory which will have resulted in uncertainty, distress, and inconvenience to the resident.

The landlord’s response to the resident’s concerns regarding the communal water tank

The landlord’s response to remedy the tank contamination was appropriate as it promptly arranged for the tank to be disinfected and replaced. It was also appropriate that the landlord took a water sample from three properties to satisfy itself that the building’s water supply from the tank was safe following its actions to remedy the contamination. However it was unsatisfactory that the landlord failed to ensure that a water sample was taken from the tank prior to the task of disinfecting to establish if there was any bacteria or foreign bodies which may been harmful to residents within the building.

The landlord’s response to the resident’s concerns regarding fire safety

In responding to the resident’s concerns regarding fire safety it is unsatisfactory that the landlord failed to provide reassurances to demonstrate how any risks would be mitigated while the fire safety works were outstanding. It was unsatisfactory that the landlord only confirmed that fire safety would be addressed through the BHP.

The landlord’s response to the resident’s concerns regarding refuse collectors

It was appropriate that the landlord liaised with the contractor responsible for delivering the refuse collection service in response to the resident’s concerns regarding the behaviour of the refuse collectors to determine whether any further action was required.

The landlord’s complaint handling

It was unsatisfactory that the landlord failed to respond to the resident’s correspondence dated 6 June 2021 in reply to its stage one response. As the resident had clearly expressed concerns with the accuracy of the landlord’s comments a reply should have been provided.
The landlord’s stage two response was unsatisfactory as it failed to provide detailed and specific responses to all issues which the resident had raised. This is unsatisfactory as a complaint response should provide adequate reason and explanation to support its decision and actions.

Orders

The landlord should, within four weeks of the date of this determination, provide a written apology to the resident from the Chief Executive Officer in respect of the failings identified by this investigation.
The landlord should pay the resident a total of £6,000 compensation within four weeks of the date of this determination. This figures comprises:
1. £3,000 in recognition that it could not demonstrate that it was seeking to keep the building in a reasonable state of repair. This figure is based on £100 per month from early 2020 to March 2023, a period of approximately 30 months; the period investigated by the Ombudsman.
2. £1,000 for the distress, inconvenience and uncertainty the resident would have experienced while the BHP was outstanding and not progressed.
3. £500 for not ensuring that a water sample was taken prior to works to remedy the tank contamination and therefore the distress and inconvenience the resident will have experienced.
4. £1,000 for not providing reassurances to demonstrate how any risk would be mitigated while the fire safety works were outstanding and therefore the distress and inconvenience the resident will have experienced.
5. £500 for poor complaint handling and therefore the distress and inconvenience the resident will have experienced.
The landlord should review complaints on its database from any other residents in the building who were also affected by the issues set out in this investigation, to ensure that all complaints have been fully resolved. The landlord should consider whether any additional redress is appropriate for those individual residents. The landlord is asked to provide the outcome of this review exercise to the Ombudsman within eight weeks.
The landlord should review the learning from this investigation and how it applies to other buildings in its BHP. In particular the landlord should give consideration to how works are prioritised under this programme and how updates are communicated to residents. The review should report to the landlord’s Chief Executive Officer and the appropriate governing body should be given the opportunity to scrutinise any recommended actions. The landlord should update the Ombudsman on the outcome of this review and any actions it has identified to improve service to its residents within 12 weeks of the date of this determination.

Recommendations

Should the landlord decide to keep a maintenance logbook for the communal water tank, in addition to electronic records, it should takes steps to ensure that it is kept up-to-date so that anyone viewing it has access to the correct information.