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Clarion Housing Association Limited (201906262)

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REPORT

COMPLAINT 201906262

Clarion Housing Association Limited

18 February 2021


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 resident complains about the landlord’s delay in resolving a leak into the property, and its subsequent offer of compensation for this.

Jurisdiction

  1. 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 will not be investigated.
  2. In her complaint to this Service the resident detailed the outcome she sought to her complaint as compensation for “psychological frustration, unhealthy living and damage caused to home materials.” The Ombudsman is aware that the resident has since made a claim against the landlord’s liability insurance. This covers the legal liability of the landlord where a resident believes a landlord has been negligent and caused damage to household contents, as in this case.
  3. If it is established that a landlord is legally liable for damage, the landlord’s liability insurer will seek to resolve the landlord’s liability by paying compensation that would otherwise have been paid through the courts. If the insurer accepts the claim it can agree a settlement with the resident that resolves all legal claims arising out of the incident. This can cover things such as quantifiable loss like the cost of replacing household contents, and unquantifiable loss such as distress and inconvenience. However, it does not cover “time and trouble”.
  4. The resident has been awarded £3,500 via the insurance claim. Both the resident and the landlord have explained that this claim was for damage to possessions. Paragraph 39 (i) of the Scheme sets out that this Service will not consider matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure. In this case, the resident has sought an alternative remedy for damage to possessions via the insurance claim and has been paid compensation. Therefore, this aspect of the complaint is not within the Ombudsman’s jurisdiction in line with paragraph (i) of the Scheme.
  5. However, the resident’s complaint about the time and trouble she experienced due to the delay in remedying the leak will be considered by this Service.

Background and summary of events

  1. The resident first reported a leak into her property in in June 2019. the landlord attended that same month and found that there was a leak coming from the soil stack of one of the properties above, and that access would need to be arranged with both these neighbours to resolve the matter. The landlord has not provided any records from June, July or August 2019 so it is not known what happened during this period. However, it is clear that the leak was not resolved.
  2. The landlord’s records show that the resident made a complaint about the matter in September 2019 (although the Ombudsman has not seen the complaint itself, there is a record dated 18 September 2019 which reads “leak in bathroom / kitchen and leak from 52 soil stack causing further problems raw sewage going into property? H&S Risk would likely need to be decanted”). A note dated 24 September 2019 reads “…discussed the matter as I feel there are multiple jobs which has caused a misunderstanding. – Needs to be reattended as the resident is adamant that raw sewage is coming through the ceiling and this all needs to be addressed.”
  3. On 30 September 2019, the records show the landlord attempting to arrange a date for works to be carried out, noting that the neighbours above needed to ensure that they did not use their bathrooms, as “…previously sewage has come through to the property due to the use of the bathrooms above and the operative stated to the tenant that he is not dealing with the issue like that. We need to get an agreement so if the resident uses the bathroom whilst the works are happening, we can take the relevant action…”
  4. Over the following weeks the landlord made efforts to arrange appointments and access for the works in the two properties above to go ahead, however this was hampered by the resident’s reluctance for this to happen without the agreement from both neighbours that they would not use their toilets on the day. This agreement was eventually provided by both neighbours on 5 December 2019.
  5. Works went ahead on 3 January 2020, but one of the neighbours did not provide access. The works did not fully resolve the problem.  Further works were booked for 17 January 2020, but access was not provided by either neighbour on the day. These works were rebooked for 1 February 2020 but were not completed as the neighbours did not provide access. The landlord noted at this time that the Housing Team needed to take the appropriate action as this was an ongoing issue and was essentially a breach of the tenancy agreement.
  6. Works were rebooked for 11 February 2020 and these finally resolved the problem. However, on this same day the resident reported another, unrelated leak at the property. The landlord attended on 18 February 2020 and inspected the property but found no leaks. The landlord attended again on 8 March 2020 to assess again and confirmed there was no further water ingress and raised a job to repair the damage caused by the original leak.
  7. The landlord responded to the formal complaint on 9 March 2020. In its letter the landlord set out that works were completed on 3 January 2020 which partially resolved the leak. Following this, it gained access into the neighbouring properties to carry out the remaining works. On 13 February 2020, the resident confirmed that these works had resolved the leak in her bathroom, however felt that there was now a separate unrelated leak into the floorboards. An inspection was arranged, and the landlord had been unable to identify any active leaks. A follow up visit also found no further signs of water ingress.
  8. The landlord recognised that the resident had experienced several delays with carrying out works to resolve the leak and therefore offered £174.93 compensation (the Ombudsman notes that there is reference to a different amount of £224.95 in the correspondence between the resident and the landlord, but as the formal complaint response letter stated £174, this Service assumes that this was the correct figure).
  9. The resident responded thanking the landlord for the offer of compensation, but asked for this to be reviewed, “…bearing in mind we have had to put up with others toilet smell and leak, all the damage caused to our property floors and furniture, also the time frame from when the problem was first reported until it had been resolved has been way outside of service level agreement.”
  10. The landlord provided a stage two response on 14 April 2020. In this it acknowledged the complaint to be about the time taken to resolve the leak, inconvenience caused, and damage to personal possessions. It noted that following the initial report of multiple leaks in June 2019, it was found that the source was from the above property and occurred whenever the neighbours were using their washroom facilities.
  11. A heating contractor attended on 3 July 2019 and confirmed that the leak was coming from pipework under the flooring, and so the job was referred to a different contractor to rectify. During investigations, another leak from a different property was identified and further inspections were required in both properties to resolve the problem.
  12. Multiple appointments were arranged throughout August 2019, but access issues prevented the landlord from being able to assess the leak. The job was then rescheduled for 27 September 2019 to visit all affected properties. The landlord said “In order to conduct this inspection, it was advised that [the two neighbouring properties] could not use their toilet facilities. While we had notified the residents of this, as we were unable to confirm a guarantee in writing that this would not happen; you had requested for the appointment to be cancelled.”
  13. The landlord said that it had adopted a new policy and procedure to tackle access issues in cases such as this, and in accordance with the policy its Housing Team were notified of the matter so that it could assist with gaining access. An appointment was then scheduled for 26 November 2019 but again due to lack of confirmation that the washroom would not be used during the appointment, the resident requested the job be cancelled.
  14. A new job to attend the resident’s property was raised for 3 January 2020 which partially resolved the leak, but access was still required to the two neighbouring properties to fully rectify this problem. The landlord said, “We acknowledge that there were additional access issues following appointments booked for 17 January 2020 and 3 February 2020 despite the involvement of our Housing Team and I am sorry for the inconvenience this caused.” Eventually works were carried out on 11 February 2020 with the Neighbourhood Response Officer attending to ensure the job went ahead as planned and the leak was resolved.
  15. There had been no further water ingress affecting the property and a job to repair the areas affected by the leak was completed on 14 March 2020. The landlord acknowledged that the matter had been disconcerting for the resident but said that its ability to resolve the problem was “…significantly impacted by the access issues we faced.” It said that it had followed its policy and procedure and that appropriate compensation had been awarded in light of the above.
  16. Finally, in relation to damaged possessions, the landlord advised on the process for making an insurance claim, and also offered an additional £50 for the delay providing its initial complaint response.
  17. The resident brought her complaint to this Service, and while waiting for this to be considered made a claim against the landlord’s liability insurance and was awarded £3,500 in compensation.               

Assessment and findings

  1. The landlord has accepted in its response to the complaint that there was a delay in the repair being carried out. The landlord’s repair policy sets out that even non-urgent repairs should be completed within 28 days: in this case the leak was first reported in June 2019 and was not resolved until February 2020. This was a significant delay that would have been distressing and unpleasant for the resident given the nature of the leak, and also meant she was caused a great deal of time and trouble pursuing the matter with the landlord, both via its repairs process and in her subsequent formal complaint. It is noted that the landlord’s liability insurer also found fault on the part of the landlord which led to damage to the resident’s belongings.
  2. In light of the above, it is clear that there was a considerable failing on the part of the landlord in remedying the leak. While it has stated that this was due to access issues, it would have been open to the landlord to take action to enforce the terms of its tenancy agreements as held by the neighbours, which would have contained an obligation to allow access to the landlord to complete repairs. Despite the repeated access issues, there is little indication of the landlord doing so.
  3. Similarly, while it has mentioned in its complaint responses that the resident had cancelled appointments in September and November 2019 as the neighbour had not guaranteed that they would not use their toilet, it was for the landlord to address this matter, for example by providing the neighbour with a decant or temporary toilet facilities if they were unable to guarantee that they would not use their toilet for the entire day.
  4. Ultimately, while the landlord clearly faced issues with the repair, it was still obliged via the resident’s tenancy agreement and its repairs policy to carry out the repair in good time. As this did not happen, a compensation payment was appropriate to “put things right” in line with the Ombudsman’s Dispute Resolution Principles.
  5. The outstanding issue then is the amount, which the resident feels does not reflect the impact that matter had on her and the time and trouble caused by the long delay in it being resolved. The Ombudsman notes that the compensation was calculated using the landlord’s discretionary compensation policy based on a seven-month delay in with the repair. This policy sets out that the landlord could make a payment to maintain good relations with a resident where any inconvenience has been caused by its actions or failure to act.
  6. While it was reasonable for the landlord to refer to is compensation policy in making the calculation, it is this Service’s view that £174 was an insufficient amount to “put right” the time and trouble caused to the resident in pursuing the matter over the course of the seven-month delay. The Ombudsman’s own compensation guidance sets out that in cases where there has been a considerable service failure but with no permanent impact on the complainant, amounts of between £250 to £700 are appropriate.
  7. Taking all of the circumstances of this case into account, including the mitigating factor of access issues, the Ombudsman finds that an award of £375 is an appropriate remedy.

Determination (decision)

  1. In accordance with section 54 of the Scheme, there was service failure on the part of the landlord in repairing the leak.

Reasons

  1. There was a clear failure to remedy the leak into the resident’s property over an extended period. The landlord’s offer of £174 in compensation was not a sufficient remedy to the matter.

Orders

  1. The Ombudsman orders the landlord to pay the resident £375 as a remedy for the time and trouble caused to her by the delay (less the £174 if this has already been paid).

Recommendation

  1. If it has not already done so, the landlord should also pay the resident the £50 offered for the delay in providing its response to the complaint, as this represented a reasonable resolution to this issue.