Guinness Housing Association Limited (202011734)

REPORT

COMPLAINT 202011734

Guinness Housing Association Limited

24 January 2022

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about:
1. The landlord’s response to the resident’s request for repairs to be carried out to the gas supply pipe serving her property.
2. The landlord’s handling of the associated complaint.

Background and summary of events

The resident also complained about the time taken for the landlord to respond to her information request relating to previous repairs for the building. However, the Service has explained that complaints related to the compliance of data requests are better suited to the Information Commissioners Office (ICO). Thus, this complaint point has not been considered in this report.
The property is a one-bedroom flat held under a lease agreement since 2006. The leaseholder is identified as ‘the resident’ in this report.
The landlord has confirmed that the resident’s mother has previously advised that she has some vulnerabilities. However, it does not have any records to say if the resident suffers from disabilities.
The resident has explained that on 22 December 2020, she was advised that she had two gas leaks on the pipe outside her cupboard. She asserts that a gas meter engineer showed her a leak on the regulator and one of the pipework joints. The gas was capped for safety reasons.
The resident raised a complaint with the landlord regarding the gas leak on the same day. The landlord acknowledged the complaint and advised that it would send a contractor to fix the leak.
The gas provider visited the property and identified two leaks; however, it could only fix the leak on the regulator. The resident asserts that it stated it could not fix the other leak as it was not responsible for the pipework it was coming from.
The resident chased the landlord via its online chat service after its contractor failed to attend the property. The landlord explained that an engineer would not be sent out as it was not responsible for pipework. The resident called the landlord because the chat ended unexpectedly. She asserted that it should be accountable for the leak because the pipe that required repair was in the communal areas. The landlord explained that a form should have been sent internally after the resident initially contacted it about the leak. Further, this form would resolve any issues around responsibility for the leak. However, she would need to call back in the morning as the relevant team was closed.
On 23 December 2020, the gas provider sent another engineer to investigate the leak. The engineer discovered the resident was still without heating and hot water because that cap previously placed on the gas had not been removed. After the inspection, the resident signed a document confirming that the gas was tested and then recapped because of an unlocated leak. This Service has not been provided a copy of this signed document.
The resident and landlord discussed the reported leak over numerous emails on the same day. The resident asserted that she was without hot water or heating for 24 hours. The landlord’s responses were as follows:
1. After speaking with the gas provider, it was aware that heating and hot water were working.
2. The gas provider confirmed a leak on the regulator, which it fixed before turning the gas back on.
3. The gas provider would not have switched the heating back on if there was a further leak in the pipework.
4. Under the lease, it would be the resident’s responsibility to fix the pipework and as such, it would not send its engineers to the property.
5. The property was not on the gas checklist because it was held under shared ownership.
6. The resident would need to pay a gas engineer to complete an emergency fix.
7. As a gesture of goodwill, it offered to deliver temporary heaters to the resident and suggested that she contact Citizens Advice (CAB) to see if there were any grants available to help with the repair cost.
On 23 December 2020, the resident’s responses were as follows:
1. She was without hot water and heating.
2. On 22 December 2020, the gas provider turned on the gas. However, the gas supply was not tested until a second engineer visited earlier in the day and discovered that the gas was still dropping, thus confirming a second leak. Because of this, the gas was recapped.
3. The gas provider tightened the joint where the second leak was coming from and replaced the part leading into the gas meter. Further, it inspected her flat and confirmed that the second leak was not coming from within the flat.
4. She was seeking advice from a solicitor regarding the lease because she did not understand how the landlord could take 75% of the rent but have no responsibility for repairing the gas leak. The landlord was responsible for ensuring the safe installation of the gas pipes and should be responsible because the gas pipes were installed without protection in 2006.
5. She could not afford to pay a gas engineer to complete the required works.
On 24 December 2020, an emergency engineer inspected the resident’s flat and found no leak. It was unable to investigate the pipework outside her flat because it did not have access to other areas in the building. The resident asserts that the engineer pointed out that the pipe going down into the structure did not have a protective covering, which corroded the pipe.
The resident contacted the landlord and relayed the findings of the emergency engineer. In response, the landlord stated that it would send an engineer later that day. The gas provider also attended the property for the third time, on 24 December 2020, and confirmed that it was not responsible for fixing the second leak. During this visit, the resident asserts that agreed that the leak should be the landlord’s responsibility.
The landlord’s engineer arrived later in the day and, after investigating the property, confirmed that the leak was not in the resident’s flat but the structure of the building. Because of this, the engineer reportedly advised that he would need to seek further advice from his manager before deciding upon the next steps.
On 30 December 2020, the resident contacted the landlord and outlined the series of events relating to the gas leak reported on 22 December 2020. In multiple emails she also asserted the following:
1. Had the landlord sent an engineer when she first reported the leak; she would not have needed to allow access to different engineers while shielding from the coronavirus.
2. The leak had increased the cost of her gas and the cost of running the electric heaters would have increased her electricity bill.
3. She was still without gas and the landlord’s engineer had not gotten back in touch about the next steps.
4. The landlord had shown a lack of urgency while handling the ongoing situation.
The landlord acknowledged the resident’s comments on 4 January and 12 January 2021 and advised her that it was not responsible for repairing the pipe. It said it would explain this decision in writing the same day.
On 14 and 18 January 2021, the resident chased her final response letter. She advised that she had informed the Housing Ombudsman that the landlord had failed to provide a final response in writing, and she advised that she was planning to seek legal advice regarding the lease terms. She also questioned why the landlord had made access to the pipes so difficult, considering residents were responsible for maintenance.
On 20 January 2021, the landlord issued its stage one response as follows:
1. The lease was legally binding contract that stipulated the rights and responsibilities for both parties. Further, it was the resident’s responsibility to ensure she understood her responsibilities under the terms of the lease.
2. It was not responsible for the parts of the building which are included in the leaseholders’ property, and therefore not the responsibility of, the leaseholders of the flats. Its obligations included the repair and maintenance of “Service Installations”, which could include gas supply pipes. However, clause 1.2.iv of the lease made it clear that the landlord’s responsibility for any service installations excludes “such Service Installations exclusively serving the Premises.”
3. Its engineers had confirmed that the gas supply was exclusive to her premise and as the leaseholder she was responsible for the repair and maintenance of any pipes that are exclusive to her ‘Premises’.
4. Clause 3.3 of the lease makes the leaseholder responsible for keeping everything in “good and substantial repair and condition”. Further, this responsibility applied, regardless of where her gas supply pipe is located.
5. It explained that if she needed to repair a pipe that is located outside of her premises, the Third Schedule of the lease gave her the right as “the Leaseholder with workmen and others at all reasonable times on notice (except in the case of emergencies) to enter upon the other parts of the Building or the Estate… for the purpose of repairing… the Service Installations…”.
6. If the pipe was in a neighbour’s flat, then she would need to contact them directly to arrange access. If her neighbour did not cooperate, then under clause 6.6 she could instruct the landlord to enforce her rights at her expense.
7. The terminology in the lease was standard for most residential leases in the country. However, if the resident disagreed with the interpretation of the lease, then she should seek legal advice.
8. The resident was in breach of the lease because she had not carried out the required repair.
9. The complaint would be handled outside of its complaint process, so the resident could not escalate the complaint. It was a legal matter which would no longer be managed through its complaint handling process but by its Homeowner Services Officer.
10. The resident needed to remedy the breach given the health and safety risk and ensure that other leaseholders’ rights to peaceful enjoyment were not disrupted.
11. The resident had seven days from the date of the letter to admit that she was in breach of the lease and confirm when the necessary repairs would be completed. If she would not do so, it reserved the right to remedy the breach, which could include taking legal action and recovering any associated cost.
On 22 January 2021, the resident asked for her complaint to be escalated to stage 2. She also asked for more time to respond to the landlord’s breach of contract allegation. She asserted that different contractors stated that the pipes had not been covered by a yellow protective sleeve, thus, were installed negligently.
On 3 February 2021, this Service sent an email to the landlord explaining that the threat of possible legal action did not mean it could not continue to investigate the resident’s complaint. Therefore, in accordance with the Ombudsman Complaint Handling Code, the landlord should continue to investigate the complaint in line with its internal complaint’s procedure.
In March 2021, after further conversations with the landlord and her investigations with the Leaseholder Advisory Service and the Environmental Health Service, the resident accepted responsibility for repairing the pipe. Thus, she attempted to find an engineer to complete the work.
Between 29 April and 22 May 2021, the resident and Environmental Health sent emails to the landlord as follows:
1. The resident was unable to find a gas-certified engineer willing to install a new pipe because their (the engineer’s) insurance would not cover the works required in the communal areas. Thus, they asked if the resident could use the landlord’s contractor to complete the required work.
2. They asked if there was an alternative source of gas the resident could use that would mean less disruption to the communal areas during any repair or new installation. They asked if the landlord would allow the resident to change to an all-electric supply.
3. The situation was causing extreme distress as the resident had been without heating or hot water since December 2020. The resident expressed that she could not understand the landlord’s lack of response as she was asking for assistance to complete the required repairs.
There is no evidence of the landlord responding to any of these emails before issuing its final response on 18 June 2021 as follows:
1. While it was the resident’s responsibility to repair the pipe, it was not a straightforward repair due to its location. In March 2021, the landlord’s contractor confirmed that the leak was in a section of pipework within the concrete floor between the meter and where it becomes visible in the resident’s flat. It was impossible to confirm if the pipe was sleeved during this inspection. However, there was no evidence of significant installation faults.
2. Installing a new gas supply through the existing one would mean undertaking work within the neighbour’s flat, which was possible under the lease. However, this would be a substantial item of work and the resident should consider taking legal advice before taking this option.
3. Installation of a gas supply along an alternative route was not possible because under the lease, no alterations or additions could be made to the exterior of the premises or interfere with the outside of the building. Further, if any neighbours suffered any loss because of required works, they would be entitled to claim against the landlord. Thus, it would not agree with the suggestion.
4. Changing the flat to all electrical may be permissible, so the resident would need to submit her request to the landlord for consideration.
5. If the resident admitted to the breach of failing to keep the premises in repair, the landlord could enter the flat and complete the required repair under the lease. However, any expense for the repairs, including surveyor fees, would need to be repaid on demand. Admitting a breach is a serious step, so the resident should consider legal advice before deciding.

Assessment and finding

The landlord’s repairs policy categorises repairs as either ‘emergency’ or ‘routine’. Emergency repairs address an immediate health and safety risk, for example, no heating or hot water during winter’. Under its policy, the landlord will either complete a repair or carry out a temporary repair to make the situation safe within 24 hours of the repair being reported. If a temporary repair is made to make the situation safe, the landlord will return within a reasonable timeframe to complete the repair.
The landlord’s contractor attended the property 48 hours after the leak was first reported. While this was outside the timelines set in the repairs policy, the landlord asserts that it spoke to the gas supplier, who investigated the leak on 22 and 23 December 2020. During the conversation the landlord has advised that it was told the leak had been fixed and the resident’s gas had been switched on. Also, the leak was coming from a pipe that it was not responsible for; thus, it did not send its engineer. The Ombudsman cannot confirm what was discussed between the landlord and gas supplier as evidence of this correspondence has not been provided. However, it is clear that after the resident reported being without heating and hot water because the gas was still capped. The landlord acted reasonably in sending its engineers to investigate the reported second leak.
There is also no evidence of the conversations the resident had with the gas provider on 22 and 23 December 2020, or the emergency engineer on 24 December 2020. However, the landlord’s engineer found a second leak, so this Service considers it reasonable to conclude that the resident’s gas would have been capped for health and safety. Further, the landlord confirmed that the gas remained capped after its engineer investigated the second leak and confirmed it was in the structure of the building. This Service understands that the resident’s gas is remained capped while she tried to complete the required repairs. Clause 3(ii) of the landlord covenants states the ‘landlord shall use all reasonable endeavours to maintain repair improve decorate and review that responsible for the service installations (except such as service exclusively a unit and except such as belong to any public utility or supply authority’.
On 24 December 2020, the landlord’s gas engineer confirmed that the gas leak was located on the track pipe on the resident’s side of the meter which linked the meter into her flat. Further, they determined that the resident’s flat gas supply was solely affected by the leak. This is important because under the lease the landlord would have no responsibility to repair the leak. Moreover, this Service must acknowledge that the landlord would not have been responsible for this leak in any circumstance because had the leak been on the other side of the meter, it would have been the gas providers’ responsible to repair.
Based on this, the landlord correctly asserted that it was not responsible for repairing the pipe despite it running through communal areas. Once the landlord determined that it was not responsible for the leaking pipe, it no longer needed to take any further action under its repairs policy. Therefore, it acted outside the relevant policy when sending an operative to investigate the leak in March 2021. However, this does not create an obligation to continue to do so. Under the lease, the resident is responsible for repairing and maintaining the gas supply pipe.
The resident has questioned the fairness of the lease’s terms and whether she is in breach of contract. However, it must be clarified that the Ombudsman does not have authority to make decisions regarding breach of contract as the courts would properly determine this matter. Thus, this investigation does not seek to prove or disapprove a breach of contract. Additionally, the lease is a legal contract which has been signed by the resident. It is expected that she would have consulted her solicitors on the terms prior to doing so. Thus, the resident should consider referring any issues around the terms or interpretation or the lease to her solicitors.
Also, the resident asserts that the gas pipe was originally installed without the necessary protective sleeve. The Ombudsman cannot draw conclusions on negligence, causation, or liability as this would be more usually dealt with either as an insurance claim or through the courts.
In considering the resident’s request to install a new gas supply, the landlord asserted that while doing this through the same route as the existing one was possible, she should seek legal advice before taking this option. This was reasonable because this installation would mean undertaking work within the resident’s neighbour’s flat. Under the lease, she would be responsible for any loss or damage caused to the neighbour due to the installation.
With regards to running the Installation of a gas supply along an alternative route the landlord asserted that it was not possible under the lease. Clause 3.6.a of the lease states that you are “not to make any alterations or additions to the exterior of the Premises… nor in any way to interfere with the outside of the building…” Because the lease does not provide any discretion to the landlord around this clause, it cannot agree to this alternative option. Further, Clause 5.6 is the landlord’s promise to all the leaseholders in the building that it would enforce the tenants’ covenants in their respective leases. Thus, if the landlord gave consent to works that it is not allowed to, it could have breached the lease, resulting in possible legal action being taken against it by other leaseholders.
Vitally, the landlord confirmed that is may be possible for the flat to be changed to have an all-electrical supply and acted reasonably by directing the resident to the department that would decide whether this would be allowed.
There is not any evidence to suggest that the resident has chosen any of the options at this time. However, it was reasonable for the landlord to consider her request for an alternative means of getting hot water and heating. Further, it needed to explain the potential consequences under the lease depending on her choice.
While it may not have been the outcome the resident was hoping for, the Service acknowledges how difficult a time this must be for the resident. Ultimately the landlord acted in line with terms of the lease when investigating whether it has an obligation to repair the leak.

complaint handling

The landlord has a two-stage complaints procedure as follows:

Stage 1 – the landlord talks to the resident and tries to agree an effective solution (10 working days).
Stage 2 – a manager will complete a review of the case (10 working days).

The resident raised a complaint on 22 December 2020 and the landlord issued its stage one response 20 January 2021. This fell outside of the timescales set in its complaint policy. However, this Service acknowledges that the landlord had limited staff due to the time of year, which affected its response times. The landlord denied the resident’s request to escalate the complaint on 14 January 2021 because it considered the issue a legal matter. However, this Service advised the landlord to continue investigating the resident’s complaint and provide a final response within 20 days on 3 February 2021. The landlord did not issue this response until 18 June 2021.
This Service has not been provided any reason behind the failure to issue a final response. However, the landlord’s internal communication suggests that it considered its approach to ensure that it provided the resident with the correct information. While it is accepted that the complaint is complicated, there would be an expectation for the landlord to keep the resident updated with any progress and respond to any subsequent request. It is unfair that the resident was in the position of continually chasing updates and responses during the complaints process.
It was unreasonable for the landlord not to offer compensation or apologies in either of its responses, despite responding to the resident outside the timeframes set in the relevant policy. Furthermore, it was unresponsive between April and May 2021 when the resident was trying to ascertain if there was an alternative way to get her heating back on after she had been unable to find a third-party contractor willing to complete the necessary works.
The landlord made a concerted effort to acknowledge and address all the issues raised by the resident through the operation of the complaints process. However, it did not compensate the resident for the significant delays in responding to her complaint. It would have been reasonable for the landlord to have offered the resident compensation and by not doing so, the landlord failed to draw a line under the complaint where appropriate.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in respect of the landlord’s response to the resident’s request for repairs to be carried out to the gas supply pipe serving her property.
In accordance with paragraph 54 of the Scheme there was maladministration by the landlord in respect of its handling of the associated complaint.

Reasons

The landlord made reasonable attempts to investigate the reported issues and acted in line with the lease terms when declining to complete the necessary repair.
The landlord failed to apply its complaint procedures by the delay in its initial refusal to escalate the complaint to stage 2 and the subsequent delay in issuing its stage 2 response.

Orders and recommendations

Orders

Within four weeks of the date of this determination, the landlord should pay the resident £100 in compensation.