Clarion Housing Association Limited (202002439)

REPORT

COMPLAINT 202002439

Clarion Housing Association Limited

10 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 complaint is about:
   1. The landlord’s response to two leaks in the property including the length of time taken by it to resolve these matters.
   2. The landlord’s response to the resident’s request for compensation for the damage to his personal belongings, distress and inconvenience.
   3. The landlord’s handling of the decant and decision not to offer a second decant.

Jurisdiction

2. 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.
3. After carefully considering all the evidence, in accordance with paragraph 39(i) and (m) of the Housing Ombudsman Scheme (the Scheme), the following aspects of the complaint are outside of the Ombudsman’s jurisdiction.
4. The resident states that he is seeking compensation for the impact of the issue on his physical and mental health.  However, this Service is unable to establish a causal link between reports of the health issues experienced by complainants and the actions of landlords. The resident may wish to seek legal advice about this, as a personal injury claim may be a more appropriate way of dealing with this aspect of his complaint.
5. Our position here is in accordance with paragraph 39(i) of the Scheme which provides that: ‘The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern 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’.
6. As advised by the landlord, the resident made an insurance claim to the landlord’s insurer regarding his personal items which he states were damaged by the flooding of the property. The landlord’s insurer has responded to his claim and decided that it is liable for one of the incidents. The resident is dissatisfied with the response he has received.
7. In accordance with paragraph 39(m) of the Scheme, we will not consider complaints which fall properly within the jurisdiction of another Ombudsman, regulator, or complaints-handling body.
8. This Service will, therefore, not consider the issues that have already been dealt with by the insurer, or further claims for damaged personal items, as these should be referred to the insurers. If he remains dissatisfied with the handling of this aspect of his complaint, he may wish to seek legal advice on the matter. 
9. Any mention of this issues in the sections below would be for contextual purposes only.

Background and summary of events

10. The resident is an assured shorthold tenant of the property, a ground floor flat in a block owned by the landlord. On 6 April 2020 he reported to the landlord that there had been a leak into the property from the flat above his. 
11. In an internal email of the landlord, of 6 April 2020, a staff member reported that it spoke with the resident and understood that the leak from the flat above had blown the electrics and caused significant damage to the ceiling. The landlord had been unable to access the flat above and suspected that the ceiling contained asbestos. It had discussed the decant procedure with the resident as it would be decanting him for one week. The resident stated that he wanted this to be permanent due to ASB which he had been experiencing in the property. The landlord had also discussed with the resident that he had to make a claim for damaged personal items on his own contents insurance or, alternately, he could make a claim to the landlord’s insurance department.
12. The landlord’s internal correspondence shows that it arranged an emergency environmental cleaning of the property, including an air test for asbestos. The cleaning took place on 7 April 2020 and no asbestos was. It decided to reinstate the collapsed ceiling after the lockdown and stated that the property would be habitable as soon as the electric checks has been conducted.
13. In an email to the landlord of 10 April 2020 the resident stated that he had been to the property. Contrary to the assertions of its operatives, the carpets were not dry and there was a bad odour in every room. He was concerned that it was a health hazard. He also stated that works undertaken to the ceiling were inadequate, although the electricity was operational again. The resident refused to move back into the property due to the wetness and the landlord, on 14 April 2020, decided to inspect it. It concluded after the inspection that the carpets were still wet, but the property was habitable.
14. A second leak occurred to the property on 21 April 2020. The resident wrote to the landlord on the same day to make a complaint about its handling of the two leaks. He stated that he reported the leak of 6 April 2020, operatives attended and confirmed that it was uninhabitable, thus he was temporarily decanted. He had explained to the landlord that there was a lot of water retained in the ceiling which was infested with rats; the water was contaminated; and the ceiling could likely collapse.
15. The resident stated that the landlord insisted that he returned to the property, which was still wet, contaminated and had a bad odour from the ‘rotting carpets’, on 14 April 2020. He had been promised a dehumidifier, but the landlord took no action on its promise and his health had been put at risk. The second leak had caused further flooding of the property, damage of bulbs and the shutting down of electricity. The resident was requesting compensation for damaged personal items, which he listed, and permanent rehousing. The landlord acknowledged receipt of the formal complaint in an email of 6 May 2020 and stated that its Customer Solutions Team would contact him.
16. On 22 April 2020, the local council wrote to the landlord to enquire about the situation. They stated that they had been informed about the second flooding by the resident, who also contacted them when the first one occurred. The resident had reported that the landlord was not responding to him; the smell of the carpets had worsened; and the dehumidifier had not been provided. 
17. In its response to the council, of 22 April 2020, the landlord explained that it had attended the property within one hour of the leaks being reported on both occasions. The initial leak had been due to a faulty ball valve and it decanted the resident to enable it to make the electrics safe. The resident had been asked to return as soon as it was safe. The second leak had been due to an overflow problem with the toilet and, although the electrics had not been affected, it resulted in the carpets getting wet. It maintained that damage from both leaks had been minor.
18. The landlord stated that it had been unable to obtain a dehumidifier due to the nationwide lockdown and had informed the resident that it would send one to the property as soon as it was available. It however, clarified that the carpets should have been insured by the resident. It also refuted the resident’s assertions about communication difficulties with it as it stated that it had been speaking to him, including advising him on the previous day that the property was habitable.
19. In further correspondence, the council informed the landlord that the resident stated that the carpets were water-logged, and the landlord had called him once to state that his neighbours had called it to report the odour from the carpet. The resident stated that he was ventilating the property as requested by the landlord, but the carpets were not drying out. He had concerns about the water from the leak having been contaminated due to the mice infestation in the ceiling. He disagreed that the ceiling damage was minor. The area manager had not contacted him as had been promised by the landlord.
20. The landlord Informed the council that it had been successful in finding a humidifier and this had been sent to the property. It reiterated that it had been difficult to source one due to the situation in the country. It explained that the water had come from the clean water source and was therefore not contaminated. The resident had been advised to report the infestation to the local authority and any further works to the property would be undertaken after the lockdown. Specialists had attended the property and confirmed that the damage to the ceiling was minor. It maintained that a decant was not required as the property was habitable, and a supervisor would be visiting the resident to discuss the situation further.
21. On 12 May 2020 the landlord wrote a stage one complaint closure letter to the resident regarding his complaint, which it stated that it received on 5 May 2020. It apologised for the delays he had experienced and the inconvenience to him in its handling of the matter. It stated that it found that the property was habitable following the leaks. Alternative accommodation had been provided after the first leak, but it could not do the same on this occasion as the property was safe. It had inspected the property on 22 April 2020 and operatives agreed that the damage was minor. It had provided the dehumidifier for drying out the property but stated that it had to be well ventilated.
22. The landlord stated that the damage to the ceiling of the property was small and cosmetic. The odour was due to the damp carpet in the hallway, but it was unable to take any action to deal with this. It was the resident’s responsibility to remove the carpet to aid the drying out process. He had no flooring in the bedroom which could be affected by the flooding and the floor was dry, thus, was not at risk of mould growth. The landlord stated that there had been no service failures in its actions as it had been timely in attending to the reports. It also stated that the leaks were not related to the boiler; were not due to the same issue; had been caused by common repairs issues and could not be avoided. It again reiterated that the water was not contaminated.
23. The landlord advised the resident to make a claim to his contents insurer. If this was not possible, it advised that he could send supporting evidence to enable him to make a claim to its insurance team. It also provided details of the questions he needed to respond to in making an insurance claim to its insurer.
24. On 27 May 2020 the resident’s neighbour wrote to the landlord providing details of the flooding incidents which he stated that he had witnessed. He narrated seeing water cascading down the walls of the resident’s property on 6 April 2020. He had also witnessed another neighbour entering the flat above the resident’s property to assist the tenant in turning off the boiler from which he saw the water flowing out and unto the floor. He stated that the landlord arrived an hour later but could not gain access to this tenant’s property as he had left. The landlord returned three hours later with keys and accessed the property. The neighbour narrated witnessing the resident crying on returning to the property four days after the incident as the property was still flooded and had a very strong odour. He also discussed the problems of mice infestation in the property.
25. In its further response to the complaint, of 28 May 2020, the landlord stated that operatives visited the property following the resident’s initial reports of the first leak. It decided to decant him in order to ensure that electrics in the property were not being used, as there had been water ingress. It had undertaken an electrical safety test and, on confirming that the electricity was safe to use, decided that it was safe for the resident to return as this was the sole reason for the decant. It stated that there had been ‘minor damage to the ceiling and the wet carpet in the hallway’.
26. The landlord explained that the second leak, although occurring only two weeks later, was due to a separate issue. The first leak was from the ball valve whilst the second was from the overflow. As both sources were fed from the mains, the water was clean, and any dirty water would have been due to passage through the ceiling or settlement in the carpet. It had attended after the second leak and confirmed that the damage was minor and a decant was not required. It had found that the resident was not ventilating the property as had been advised. It stated that the promise was to ‘make every effort to obtain a dehumidifier’ but this was not initially possible due to the lockdown. When it obtained one, it delivered this to the property immediately.
27. The landlord stated that the dehumidifier was for the absorption of moisture in the hallway carpet but not for drying personal items. Due to the location of the property, in a cul-de-sac, the landlord disagreed with the resident’s assertions that it was distressing to open the windows to aid ventilation. It had been unable to assist with the removal of excess water in the hallway carpet due to equipment not being available. It stated that the resident had been asked if any other items were damaged during a visit to the property, but he had not given any details. Residents are required to insure their personal items, but he could make a claim to the landlord’s insurer if he thought that it was responsible for the damage.
28. Due to the lockdown situation the landlord stated that the outstanding repair to the ceiling in the bedroom would be arranged to take place later as it was not critical or urgent. It acknowledged that there was a problem of mice infestation in the block. This was due to a high level of waste and fly tipping and it was taking measures to eradicate the infestation in the communal areas. As this issue was not related to the leaks, no works had been raised in this regard for the property and it advised the resident to contact it to report this in the usual way. It advised the resident about escalating the matter to the next stage of its procedure if he remained dissatisfied.
29. In his response of 28 May 2020, the resident expressed his dissatisfaction with the landlord’s response to his complaint. He stated that it had minimised the situation and suggested that it was caused by poor ventilation due to his own actions. He stated that there were witnesses to his reports on the issue. He also stated that he had been decanted because of the wetness of the property and not only because of electrical issues. He requested that the landlord listen back to his telephone conversations with its staff member regarding the first flooding. The windows had been closed on one occasion when the landlord visited after he had contacted the council on the outstanding issues. He maintained that the landlord had promised to bring the humidifier to the property on the morning of 14 April 2020, when he refused to move back to the property due to the conditions and his concerns about his health.
30. The resident further stated that he had been asked to leave his doors and windows open for most of the day during the lockdown which put him at risk. The flooding had emanated from the landlord’s property above his. He had lived in appalling conditions for more than six weeks and the odour from the carpets was still prevalent. He had explained that he needed to take an inventory when the landlord requested for information on his damaged personal items. He had also been asked to keep his electricity top up receipts when he wanted to know who will bear the cost for running the dehumidifier. This was because he had been told that it needed to run for weeks to dry all the water in the walls, carpets and ceiling. 
31. In its final decision letter of 15 June 2020, the landlord stated that it was not necessarily liable for damage occurring due to leaks in its property, unless it could be shown to have resulted through the actions of its staff, operatives or contractors. It found that this was not the situation in this case, therefore, it was not responsible and would not compensate the resident. It reiterated that he was responsible for insuring his personal items. The landlord stated that it sympathised with his situation but found no evidence of service failure in its actions. It again advised him about making an insurance claim.
32. On 18 June 2020, the resident wrote to the landlord regarding the landlord being contacted by his neighbour a few times on his behalf. The neighbour had requested that the resident is moved into the neighbour’s flat as he was being relocated. The resident stated that the landlord had advised the neighbour to inform the resident about this request and ask the resident to contact the landlord to request for the neighbour’s flat directly. Thus, the resident was requesting to move to the neighbour’s property as he was offering him the carpets, linoleum burglar alarm and blinds. The property of the neighbour was dry, did not smell of rotting carpets and had no dampness.
33. The resident also stated that the odour persisted in the property, the walls and ceilings where also damp and mouldy. He stated that he had complained about ASB, racist and gang threats by the neighbour living in the property above his. He was surprised to learn that two of his neighbours were being moved because of the same ASB, but the landlord was not moving him even though he suffered the same threats. One of these neighbours being re-housed was the one who offered him his accommodation and personal items and he wanted to move to this property, while also requesting that he is moved out of the block. He attached an email to the landlord, written by the mother of this neighbour regarding the offer to him of the property and personal items.
34. On 30 July 2020 the landlord wrote to the resident to clarify the status of various issues which he had complained about. It explained that a stage one decision was sent tell him on 28 May 2020 regarding the two leaks. It attended the property and undertook repairs. It was unable to provide information on its communications with the neighbour above the property due to data protection requirements. In a letter to him, of 15 June 2020, it had clarified that it was not responsible for his damaged personal belongings which he should have insured but had also advised him on how to claim through its insurance. 
35. Regarding mice infestation in the property, the landlord repeated the information in the complaints decision of 28 May 2020 and advised that the ‘business area’ had to deal with an issue prior to it being raised as a complaint. It stated that his complaint about ASB was being dealt with under a different complaints reference number and the response would be sent to him. His request to be rehoused was also subject to the same reference number.
36. The landlord clarified that it had dealt with the initial complaint from 5 May to 12 May 2020 and then sent him the further response on 29 May 2020. A peer review took place from 27 May to 15 June 2020 and, although it was its aim to respond within its stipulated timescale, this was not always possible.

Assessment and findings

37. The assessment of this case is limited to the issues which can be considered within the complaints procedure. The resident has not disputed the landlord’s assertions that the carpets in the property belong to him. Clause 5.3 of the  landlord’s Compensation Policy states that the landlord ‘may not offer compensation payments …where the fault was caused by a third party or is something [the landlord] has no control over, [it has] acted reasonably and followed [its] policies and procedures [and] where the resident or service user could make a claim against their insurance policy.’
38. In the absence of any evidence to show that the carpets belong to the landlord this Service concludes that, in accordance with the policy provision stated in the above paragraph, the landlord correctly advised the resident to make a claim to his insurer on this issue. It was also reasonable that it advised him to, alternatively, make a claim to its insurer. It must be noted that there is no obligation on landlords to compensate residents for damage to personal items if they have not insured their belongings.  
39. The leaks to the property were caused by faults in the flat above. The resident states that the issue had occurred due to repairs which the landlords should have undertaken in the previous year. He has referred to a letter to him of 15 July 2019, in which the landlord stated that it would be undertaking works to the property, as it had found that there were overflowing pipes at the rear of the property which could be causing damage to the structure. There is no evidence that the faults in the neighbour’s property were due to the issue with the overflowing pipes regarding which the landlord wrote to the resident.
40. Both the resident and his neighbour, who wrote an email to the landlord narrating events as he witnessed them, state that the leak of 6 April 2020 was from the neighbour’s boiler. However, the landlord’s operatives have provided differing information on the source of the leaks. It is reasonable for landlords to rely on the findings of their professional personnel and contractors in the assessment of reported repairs and the appropriate measure for dealing with them. In the absence of any reliable expert report contradicting the landlord’s findings, there is no basis for this Service to conclude that the landlord’s analysis of the causes of the leaks were inaccurate.
41. As the leak emanated from property which belonged to the landlord, it was its responsibility to stop the leak and repair any damage to the property. As already discussed, this responsibility does not automatically extend to the resident’s personal items. The landlord has not disputed that it is its responsibility to undertake repairs to the structure of the property.
42. The landlord attended the property within an hour of the leak being reported by the resident on both occasions. Its Repairs Policy provides that emergency repairs would be responded to within 24 hours. Thus, the landlord was timely in its response to the issue. It is not for this Service to decide whether the second leak could have been prevented based on the repairs visit after the first leak. This is a matter which must be considered as part of the insurance claim.  
43. Copies of correspondence on the landlord’s communications on the day the first leak occurred, which have been provided to this Service, indicate that it decided to decant the resident because of its concerns about the electrics and the likelihood of asbestos in the damaged ceiling. The evidence indicates that it discussed the situation and decided that the wet carpet would not form sufficient grounds for a decant as it was the resident’s responsibility to remove the carpets if it could not be dried out.
44. It must be acknowledged that the leaks occurred at a period when an unprecedented lockdown resulted in several challenges for most sectors in the country, including landlords. The landlord’s internal correspondence indicates that it sought to provide a dehumidifier to enable drying of the property but was initially unsuccessful due to the lockdown situation. It also shows that on the day of the second leak, the landlord discussed obtaining a dehumidifier and this was not classed as a critical item in the lockdown, thus it was again unsuccessful.
45. The landlord decided that the property was habitable, and the resident could therefore return to it as soon as the electrics was deemed to be safe. It must be noted that the landlord has not provided any repairs logs completed by its operatives following visits to the property. The assessment of events in this case has been largely based on correspondence between all the parties involved, and this has provided conflicting information in some cases. For instance, the landlord’s initial email on the leak stated that there was significant damage to the ceiling but its later communications, and the complaint decisions, state that it was minor. It is expected that landlords would maintain repairs logs which are usually reliable evidence of their actions in situations like this. This would help to clarify the findings on inspections, actions taken to resolve issues and when these were completed. However, while the resident has stated that the landlord’s operatives informed him that the property was not habitable, no documentary evidence has been provided in support of his assertions.
46. The landlord has not disputed that there was a strong odour emanating from the carpets in the property. While it maintains that the resident should have kept the property ventilated, the description of the situation by both parties indicates that this would not have greatly improved the problem. It was reasonable that the landlord agreed to reimburse the resident for the costs of extra electricity usage for the duration of the running of that the humidifier.
47. The issue of the mice infestation was raised by the resident in explaining why he believed that the water which had leaked into the property was contaminated. The landlord stated that this was not the case but explained that the water would have become dirty because of the debris from the ceiling. It advised the resident about the steps it was taking to deal with the infestation as this was a communal issue. It provided a reasonable response on the issues, as separate actions would be required to deal with the infestation and the resident could make a complaint if he remained dissatisfied with its actions. It has, however, not explained whether the environmental cleaning specialists undertook the cleaning of the property, beyond gathering the debris and testing the property for asbestos.
48. The resident stated that the area manager had not visited the property and he was promised that this would occur. It may be that the landlord promised that the area manager would visit after the first leak occurred. If this was the case, then the landlord should have ensured that it kept its promise. However, there is no policy requirement for the specific officer to visit property in such situations. this Service therefore finds that there was no service failure in the visit not taking place. It is also noted that the officer visited the property after the second leak.
49. It was reasonable that the landlord provided the resident with clarifications regarding the further issues he raised after his complaint. This is with respect to the ASB complaint and his request to be rehoused – which he had linked to both the condition of the property and his experience of ASB. Landlords are not usually required to permanently rehouse residents on the basis of repairs which can be completed within a few weeks or even months. No evidence has been provided with respect to the damage to the property from the leaks to show that it was of a level to warrant permanent decant. It was appropriate that the landlord was therefore considering his request strictly with respect to his ASB reports and had explained that a separate complaint was being considered to this issue which was not linked to the leak.
50. It is within the landlord’s discretion to decide whether it is able to offer the resident the property which would be made vacant when his neighbour moved. Landlords have policies for allocating properties, thus, it is expected that the request by the resident and his neighbour would be subject to the provisions of relevant policies and the landlord’s internal deliberations on the use of its housing stock.
51. The resident’s formal complaint was made on 21 April 2020 in an email to the landlord. It is not clear why the landlord stated that the complaint was received by it on 5 May 2020. The initial response to the complaint was made outside the landlord’s requisite timescales but subsequent responses were made in a timely manner. This Service finds that the landlord acknowledged the delay in its first decision and appropriately apologised for this. Overall, while the apology was warranted, the delays to its responses were not of a level as to constitute service failure.

Determination (decision)

52. In accordance with paragraph 54 of the Scheme there was no maladministration by the landlord in respect of its handling of:
    1. Response to two leaks in the property, including the length of time taken by it to resolve these matters.
    2. Response to the resident’s request for compensation for the damage to his personal belongings, distress, and inconvenience.
    3. The decant and its decision not to offer a second decant.

Reasons

53. The landlord was timely in attending the property to deal with the leaks on each occasion. It appropriately informed the resident that he could make an insurance claim regarding his damaged personal items including the carpets. The leaks occurred doing an unprecedented lockdown in the country and the landlord has provided evidence of its inability to obtain a dehumidifier as it promised. The landlord’s operatives have maintained in their reports that the property was habitable, and it has relied on these findings in not decanting the resident further.

Recommendations

54. The landlord should consider undertaking professional cleaning of the property after the completion of any outstanding repairs to the ceiling if this was not done when the leaks occurred.
55. The landlord should consider measures to improve its record keeping by, maintaining contemporaneous repairs logs which would be utilised in its investigation of related complaints as this would ensure a thorough and fair consideration of the issues.