Dacorum Borough Council (202203963)

REPORT

COMPLAINT 202203963

Dacorum Borough Council

26 April 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

This complaint concerns:
1. The landlord’s handling of the resident’s reports of water ingress in the storage area located in the basement of the building.
2. The landlord’s handling of the resident’s reports of damage and water ingress into the property.
This report has also considered the landlord’s record keeping.

Background and summary of events

Background

The resident is a leaseholder of a two-bedroom second floor flat (the property). In addition to the flat the lease for the property also includes a storage room. The information from the landlord to this Service and on the lease plans refers to the storage room being situated on the ground floor of the building. However, the resident has confirmed that the storage rooms for the residents are actually situated underground in the basement of the building.
The lease agreement provides that the landlord is responsible for maintaining in good condition the main structure of the building. The main structure includes the roof, outside walls, structural walls inside shares areas, balcony railings, foundations, chimney stacks, gutters and rainwater and soil pipes.
The responsibility for repairs for council leaseholders policy also sets out that the landlord will “maintain the areas outside the building such as paths, shared shed blocks, drying areas and bin stores”.
The landlord operates a two-stage complaints policy. The policy notes that at stage one (the initial investigation), the landlord will acknowledge the complaint within five working days and the resident will receive a formal response within 15 working days.
If the resident remains dissatisfied, they can request a review within 28 days from receipt of the landlord’s response. If the resident is able to demonstrate why the outcome was unfair or incorrect it will be escalated to stage two. The resident will then receive a response within 20 working days.
The landlord categorises a leak from a water pipe as priority one and a non-urgent roof leak is deemed to be priority three.
The landlord’s compensation policy sets out that compensation may be paid if it “is at fault for not providing services as specified under service standards”.

Summary of events

The resident sent an email directly to the landlord’s chief executive on 7 March 2021. He explained that he had initially reported damage to his bathroom ceiling caused by a leak from the flat above 12 months earlier as well as flooding in the basement store rooms, both to the landlord and its onsite operative during a site visit. It had provided him with verbal assurances that both repairs would be implemented, yet despite this both matters remained outstanding. The resident also included an email which had been sent directly to the landlord’s onsite operative on 2 March 2021 about the issue.
The resident sent a further email to the landlord on 10 March 2021. He explained that whilst the downpipe for the flat above him had been replaced he was awaiting for progress regarding “the repair to my ceiling and repairs to the downpipe where it is still leaking into my storeroom”.
The landlord replied to the resident on 11 March 2021. It acknowledged that:
1. It could deal with the damage to the bathroom ceiling and it would pass the details over to its contractor.
2. In relation to the repair to the downpipe which leaked into the basement store it explained it would pass the matter on to the building surveyor.
The landlord sent an internal email on 18 March 2021. It explained that upon visiting the property it had noted “further damage had been found by the lounge window and the plaster is all blown”. It added that its contractor thought that “there is a defect with the window or that area and water is somehow getting in”. It asked for a surveyor to visit and investigate before the internal repairs were arranged. It added that this was “separate damage to the downpipe problems”.
The landlord’s repairs log shows that it created work orders for both the brickwork and the lounge window, however, these were cancelled on 28 May 2021 and 24 June 2021. In both cases the contractor noted “no work required”. No work order was created for the leak into the basement store room.
A local councillor emailed the landlord on 10 February 2022. He explained that he had been approached by the resident and one of his neighbours concerning the maintenance of the building. The councillor asked for an update as he described the outstanding issues as being unacceptable and needing immediate action. A description of the issues from the resident was also provided. This confirmed that the hole in the bathroom ceiling had since been repaired. The outstanding issues were:
1. The flooding to the basement storeroom.
2. The cracked brickwork.
3. Water ingress around the lounge window to the property.
In terms of the flooding to the basement store rooms the resident stated that this had been suffering from water incursion for approximately three years. Whilst various visits had taken place the incorrect conclusion reached by those attending had been that the issue was being caused by the fire doors which were installed to seal up the store rooms. The resident added that moisture was not an issue as other store rooms belonging to other residents had been unaffected and that on some days they had water pouring down the walls of the store room. The resident added that the dampness and damage was so bad he was unable to open the door to catalogue the items to make an insurance claim for them.
The landlord’s internal communication evidence from the time shows that it made enquiries about the work as well as the timescales involved. These enquiries showed that it did not believe that its preferred contractor had the ability to carry out the work and that the costs would be high since it had established that the waterproofing to the underground storage area had depleted and that once works were completed a dehumidifier would be needed to assist with the drying out. The communication also confirmed that there were delays as it was “stuck on how to progress the required works”.
The landlord’s records note that the resident made a complaint on 17 February 2022, but it has not been able to provide a copy of that complaint to the Ombudsman.
The landlord issued the stage one response to the resident on 10 March 2022. It apologised for the inconvenience caused by the matter. It explained that various investigations had been undertaken and it had identified some water leaks which required design surveys to be done before any repairs could be undertaken. It added that it had instructed its repairs contractor to do the pointing works and resealing around the window and to rectify the cracking to the brickwork above the window.
The resident contacted the landlord on 6 June 2022 to ask for an escalation to stage two of the complaints process. The landlord acknowledged this on 8 June 2022 and confirmed that it would undertake an independent review. It confirmed that it would respond to the resident within 20 working days.
The landlord issued its stage two response on 13 July 2022. It apologised for the delays which it explained had in part had been due to changes in some of the staff involved in the matter. It added that the issue with the stack (to do with the store room) had been resolved. It added that due to the fire protection this had impacted on the ventilation and the drying in the area. It also set out that as the basement was below the ground level this had led to cold bridging. As a result, it would arrange to carry out a new fire risk assessment on the area as well as looking into the issue of the storage doors. The landlord added that its contractor would liaise with the resident to confirm a suitable time to attend.
The final response did uphold the resident’s complaint but no offer of compensation was made by the landlord. The landlord stated that as the leak had been addressed the rest of the outstanding work would now be taken forward. It added that “a clear action had gone to the service lead around the need to better communicate actions and ensure it was carried out in a timely manner”.
On the same day that the landlord issued its final response it sent an internal email asking that someone inspect the fire door to the store room. This was to determine whether or not it could be repaired. The email also asked that other storage doors were checked when the contractor visited the property.
On 15 July 2022, the resident wrote to the landlord. He noted that the landlord had indicated that the leak repair had been fixed. However, he said that he had not seen any work taken place with regards to the stack. He questioned whether the store room drying was linked to the warm weather. The resident also asked about claiming for damaged possessions via the landlord’s insurance. He also queried the other outstanding work concerning the window and the brickwork repairs.
The resident contacted this Service on 12 August 2022. He explained that the response from the landlord stating that the leak from the stack causing the damp had been resolved was “either a mistaken assertion or simply not true”. He stated no works had taken place around the stack and that the dampness in his store room as well as one belonging to a neighbour was getting worse. He added that the other works in the complaint – the cracked brickwork and the water damage around the window – had been ignored by the landlord. He added that he had not been told how to claim compensation for damage to his property or for the delay in the matter.
The resident confirmed to this Service on 7 November 2022 that the leak causing the damp in the storage area had been repaired. However, he added that the water damage was still present on the walls and he had not been informed by the landlord as to how to claim via its insurance. The resident added that the work to the lintel and window had still not been resolved although he had seen that some progress had been made on those issues.
The landlord’s contractor sent an email to the landlord on 25 November 2022. It set out that it had met with the resident two days earlier and confirmed that whilst the fire door to the store room did close, it was swollen. It accepted that the top right area of the room was really wet and causing damp although it was unable to determine what was causing the issue. It explained that it would arrange a further inspection if required but it did accept that there appeared an ongoing problem with a leak. The landlord sent an email back on the same day to confirm “we don’t want to replace the door if there is still a leak/damp in the area”.
The landlord has confirmed to this Service that the issue with the resident’s brickwork and the lintel above the window have now been resolved, however the issue with the resident’s store room remains outstanding.

Assessment and findings

The landlord’s handling of the resident’s reports of water ingress into the store room.

For leasehold properties, the relationship between landlord and tenant is contractual, and the terms of the lease will determine who is responsible for what. It is not disputed that the terms of the lease agreement sets out that the landlord is responsible for repairs to the external structure and the communal parts of the building. Specified under the list of what is covered by this are the roof, rainwater and soil pipes and sewers and drains. The lease also confirms under the first schedule that the storage rooms beneath the building are considered to be part of the resident’s premises. Therefore, it was the responsibility of the landlord to carry out an investigation and upon being alerted to an issue with water ingress or dampness into the store room and complete any connected structural or communal repairs.
Under the lease the resident is responsible “to keep the interior of the Premises including interior decorations fixtures and fittings and all doors and windows which serve or lead into the Premises internal non load-bearing walls the internal faces or all wall surfaces (whether plastic or other) ceiling linings and the floor and its coverings in good order and condition”. The premises was defined as including both the property and the storage area in the basement.
The resident has stated that he had reported the issue of the damp in the storage room to the landlord prior to March 2021. In the email sent by the councillor in February 2022 the resident stated the water incursion into the basement had been occurring for three years, implying the matter had started in 2019. However, neither party has provided any evidence showing that the issue had been raised in 2019. There is a note on the landlord’s repairs log from 29 September 2020 which stated “leak in his store cupboard at the back of the property going down to the cleaners cupboard on the ground floor. Thinks may be coming from the guttering/down pipe”. It is not clear whether this relates to the issue complained about or was a separate issue.
The resident has stated that he had a number of verbal conversations with the landlord’s contractors when they visited the property concerning the outstanding issues and he was led to believe the repairs including to the store room would be progressed. These were prior to his contacting the landlord in March 2021. The landlord has not provided any notes relating to any verbal conversations which it may have held with the resident from the time. The omission of any such notes has impacted determining exactly what the resident may have been told by the landlord and is a record keeping issue.
Irrespective of what the resident may have been told by the landlord prior to March 2021, the landlord was made aware of the issue of the dampness in the store room from that time. Despite this there is an absence of emails or notes on the issue between 11 March 2021 until 11 February 2022. This was a gap of 11 months. Whilst the landlord identified that repairs were needed, the repairs were not completed, and the resident had to raise the issue again the following year. The impact of the delay on the resident was that it increased the degree of inconvenience as the ongoing issues continued to cause further damage to the store room.
The landlord’s internal email of 14 February 2022 highlighted that the cost and the nature of the work required which its contractor could not do were reasons why the work had not been progressed. Whilst the landlord may have been required to carry out a Section 20 consultation prior to undertaking the works, this and the scale of the required works in itself were not sufficient reasons for the landlord to have not progressed the matter at that time or provided any form of update to the resident. The inability to do this for such a prolonged period amounts to a significant failing by the landlord and would have contributed to an ongoing delay in trying to resolve the matter.
The resident has explained that the landlord’s operatives informed him during site visits of possible causes of the dampness including a lack of ventilation in the storage area. The landlord has not provided any notes or records to show this or what it anything else was discussed during site visits and the only reference to the lack of ventilation is detailed in the final response in July 2022.Again, this was evidence of a record keeping issue.
The resident had pointed out that he had not seen any work being carried out at the property. He questioned whether the landlord’s observations that the work had been done were down to the particularly dry weather at that time. Without demonstrating that it had arranged for work to be undertaken it was incorrect and misleading for the landlord to determine at the review stage that the issue of the damp in the storage area had been resolved.
The resident has also on multiple occasions requested that the landlord provide him with its insurer’s details to submit a claim for his damaged storage possessions. Even if the resident did have his own contents insurance, in the event of damage which was the responsibility of the landlord, or it was due to the landlord’s negligence there could be the option to submit a claim against the landlord’s insurer. The resident should have been offered this option by the landlord.
In terms of compensation the Ombudsman’s Remedies guidance suggests an amount in the range of £100 and £600 for service failure and maladministration. Examples given for these categories include the landlord failing to acknowledge its failings and/or it has made no attempt to put things right, a failure over a considerable period of time to act in accordance with policy, for example, to address repairs and resulting in unreasonable time, trouble and inconvenience to the resident.
Taking into account all the circumstances of the case, whilst there were several site visits to consider the matter it appears the landlord was still unclear after issuing the final response on what was causing the damp in the storage sheds. This has contributed to significant delays in the outstanding works being completed. The landlord has confirmed that the work is still outstanding at the present time, over two years since the resident’s email to it over the matter.
In addition, there was also the failure by the landlord to direct the resident to its own insurer’s in terms of his damaged possessions. If this was not an option, the landlord needed to inform the resident. However, it has instead simply failed to respond to this aspect of the complaint. I am satisfied that the failure by the landlord was sufficient to justify a compensation payment towards the upper end of this scale and as such, the landlord has been ordered to pay the resident £500 compensation.

The landlord’s handling of the resident’s reports of damage and water ingress into the property.

The resident had also experienced water ingress above the window of the property and damage to the brickwork. The landlord identified these issues following a site visit carried out on 9 February 2021. The landlord stated this was not related to the issue of the downpipe which had caused the leak to the bathroom ceiling. Whilst the landlord identified the issue at the time, there was a lack of progress on the matter. Whilst a work order was created for the cracked external brickwork on 9 February 2021, it was subsequently cancelled by the landlord’s contractor with no indication that any work or further site visit had been carried out.
Another works order was created on 15 June 2021 for the water ingress to the lounge window. The works order noted that window needed sealing from the outside. This work order was also cancelled by the landlord’s contractor on 24 June 2021 again with no indication that any further site visit was required.
A further follow up works order had been created for the point stepped cracking above the window of the flat on 15 June 2021. The notes show that following a visit on 14 July 2021 the landlord’s contractor noted “second story flat need tower or scaffold, cannot do this”. The next notes on this work order did not occur until 19 April 2022 which was after the resident had raised his complaint and following the landlord issuing its stage one response. No explanation has been provided by the landlord as to why there was no progress from July 2021 up to April 2022.
Although the landlord did make an apology for the delay and inconvenience in the stage one response it did not address either of these issues in its stage two response. Whilst the resident in his reasons for escalating the complaint had concentrated on the issue of the store room, no work had been progressed on the other issues by the landlord. Instead, the work to the exposed brickwork was only completed in January 2023, several months after the final response had been issued. The landlord has acknowledged that there were breaks in service “due to follow on works not being picked up on several points of the process”. It added it was working with the contractor “on this process to improve the way this is carried and checked to help with all follow on jobs from contractor’s operatives to stop these being missed”.

The landlord’s record keeping

The landlord has provided some notes in the repairs log which relate to the period between March 2021 and February 2022. These notes related to the issue of the external brickwork and the water ingress into the property but not to the dampness in the basement store room. Very little information has been provided by the landlord in conjunction with that matter. Whilst the resident has said various site visits took place by the landlord there is no indication of any notes from these including any conversations the landlord may have held with the resident. Clear record keeping and usage of held records is essential to the effective operation and delivery of landlord services. This includes the investigation of complaints received. This has not been the case in its management of the resident’s repair request.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s report of water ingress into the store room.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s report of cracked brickwork and water ingress into the property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s record keeping.

Reasons

The landlord failed to progress the issue relating to the store room for a significant period from the point the resident notified it of the matter in early 2021. Whilst it stated that site visits were required to identify the cause of the damp it failed to communicate with the resident in terms of what it was doing. In addition, the landlord also failed to respond to the resident’s repeated requests for how to submit a claim for his damaged possessions to the landlord’s insurer.
The landlord failed to actively progress the matter relating to the brickwork and water ingress into the property. There was also a lack of communication to the resident over the matter. This significant delay prolonged the resident being able to start work to the inside of his property, causing him further inconvenience and distress at this time.
The landlord failed to keep contemporaneous records which accurately noted details of meetings with the resident as well as the finding of any site visits it undertook in relation to the outstanding issues. The failure to keep accurate notes led to it missing progressing the matters in a timely manner.

Orders and recommendations

Orders

Within four weeks of the date of this determination, the landlord should:
1. Apologise to the resident for the failings identified by this Service.
2. Pay the resident a total of £900 comprising:
  1. £500 for its handling of the damp issue in the basement store room.
  2. £250 for its handling of the exposed brickwork and water ingress into the lounge.
  3. £150 for its failure in its record keeping.
3. Make arrangements for an inspection by a qualified surveyor in relation to the cause of the damp in the basement store room. Following the inspection, the resident should be provided with a written update including a clear explanation of what actions the landlord has or intends to take as a result, together with a timeframe for each action.
4. Provide to the resident the details of its insurer and how he can make a claim for damages to his personal possessions.

Recommendations

The landlord should review its record keeping processes to ensure the appropriate recording of repairs, and responses to complaints and the delivery of operational services.