Hammersmith and Fulham Council (202008846)

REPORT

COMPLAINT 202008846

Hammersmith and Fulham Council

24 March 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

The complaint is about:
1. The landlord’s handling of repairs due to leaks which affected the leasehold property.
2. The level of redress offered by the landlord for the delay, distress and inconvenience caused.
3. The landlord’s response to the request for redress for damage to the resident and his tenant’s personal belongings.
4. The landlord’s response to the request for the loss of rental income the resident incurred during the delays.

Background and summary of events

The complaint has been made by the leaseholder of the property, who is referred to in this report as ‘the resident’. However, the resident brings the complaint on behalf of his tenant. This is as the Ombudsman is only able to consider complaints from those in a landlord and tenant relationship, with the landlord being a member of the Housing Ombudsman Scheme. The property is a ground floor flat, owned by the landlord.
The resident wrote to the landlord on 16 September 2019 regarding issues affecting the property from the flat above and mainly regarding a leak. He attached photographs and stated that he would want the matter treated as a complaint unless the landlord could resolve it urgently. In its response of 17 September 2019, the landlord stated that it had booked a repair visit to the property to take place on 18 September 2019.
The resident’s tenant wrote to him, on 13 December 2019, to report that water leaking from a pipe in the flat above had soaked through the walls and ceiling of the property. The resident sent this information to the landlord, along with a video recording of the incident, and asked for it to be rectified urgently.
In his formal complaint of 16 December 2019, the resident stated that water from the leaking pipe had soaked through the walls and ceiling of the property. He wanted the landlord to resolve the damage to the property. It had also not dealt with his request for emergency rectification works. He stated that he would want this to be treated as a complaint unless the issues could be resolved by the weekend. The landlord confirmed on 23 December 2019 that a stage one complaint had been logged and the response would be made by 8 January 2020.
On 27 December 2019, the landlord advised the resident that all the leaks from the flat above had been fixed earlier in the month and the water ingress was likely following the previous repair. It also stated that it had been informed that the waste pipe connection for the toilet in the property was damaged, however, this was his responsibility to repair.
The resident responded that the leaks had not been fixed, although there was an attendance by operatives. It had gone into the overflow pipe and leaked throughout the day. He included photographs of the damage caused and stated that the landlord would have to provide alternative accommodation for his tenants as they could no longer use the room. He also stated that the waste pipe served both properties, thus it was the landlord’s responsibility to repair it. He requested for the repair logs for the property. In a further email of 4 January 2020, the resident inquired why there was a delay of four months in logging his complaint since September 2019.
The landlord wrote to the resident on 9 January 2020 to inquire whether the leak had stopped. In his response he stated that it appeared to have stopped but there was an odour of faecal matter. He was disappointed that he had not been offered an apology, nor compensation. He also requested for the trail of emails on the issue in the landlord’s further responses as well as the repairs logs. In its response of 10 January 2020, the landlord stated that it had not received any photographs or videos. It asked for him to send these again and stated that it would deal with the issue of the foul odour. It would also provide him with the requested logs while an apology and information on compensation would be included in the complaint response.
The resident sent the information again on 10 January 2020 and chased an update on the issues on 13 January 2020. In its response of 15 January 2020, the landlord clarified that it was in the process of organising an environmental clean with respect to the faecal odour. In a further response of 17 January 2020, the landlord informed him that it had booked appointments for 22 and 23 January 2020 for repairing the damaged soil pipe and undertaking the environmental clean. The resident wrote to the landlord on 22 January 2020 to state that although the tenant waited through the day the operatives did not attend.
On 30 January 2020, the landlord confirmed that the complaint had been escalated. It stated that the contractors went to the property on 27 January 2020 but could not gain access. It had re-booked the appointment for 4 February 2020.
In its stage one decision of 31 January 2020, the landlord narrated events in the matter – as stated in the paragraphs above. It also added that it had been informed about a leak form the toilet in the flat above the property on 2 January 2020 and undertook repairs to the toilet cistern on 3 January 2020. It apologised for damage to his property due to the leak and provided the contact details of its insurer for the resident to make a claim.
In his escalation request of 3 February 2020, the resident stated that he had not been sent ‘a trail and drill’ of his previous emails. The crack to the property was at ground floor level and an environmental clean should therefore be ineffective until this was dealt with. He thought that the matter should be handled as an emergency. He also stated that an urgent evacuation of the neighbour’s flat, or ‘breaking in’ should have been undertaken when there has been no access granted on several visits. He requested a full reply of his email of 9 January 2020 and there had been no response to his query about a four-month delay in logging his complaint. He also wanted the landlord to contact his tenant prior to the works visit. The landlord had also not addressed compensation in its decision.
The landlord contacted the resident by telephone call on 19 February 2020 to re-book appointments for the works to the soil pipe. It offered him an appointment for 24 February 2020, but this was not convenient for the resident. An appointment was agreed on 28 February 2020 for works to take place on 4 March 2020.
The resident contacted the landlord, on 11 March 2020 to report that the contractor visited on 4 March 2020 but informed his tenant that the works would be partially done, and another appointment was required to complete it. The resident had arranged for independent contractors to undertake works to the property as it was damp. He expected that the landlord would reimburse him for the works which would cost £4000, as it had been caused by the landlord’s negligence.
The landlord’s repairs log shows that it was unable to gain access to fix the cracked soil pipe in the back garden during a visit of 11 March 2020. The tenant called it on 12 March 2020 and the appointment was rebooked for 13 March 2020. The landlord was informed by the neighbour that he could not grant access on 16 April 2020 and it was rebooked for 23 April 2020. Another appointment was booked for 21 May 2020. The works for the rectification of water collecting on the drains was rebooked for 29 May 2020.
In an email to the landlord of 17 March 2020 the resident reported that there had been another missed appointment for 13 March 2020, during which his tenant had waited in, but operatives had not attended. He was seeking confirmation that he would be paid £50 in compensation for each missed appointment. He was also seeking £50 regarding distress for every month in which there had been a delay. He requested £75 per hour for time expended on the matter with the landlord and £75 per hour for time spent with respect to the insurance claim. He wanted the landlord to confirm whether it would reimburse him for completing internal repairs independently whilst he sought reimbursement for loss of rent.
On 3 May 2020 the resident reported that his tenant had informed him about further leaks into the property due to the neighbour upstairs undertaking plumbing works. It was leaking from the light and he was concerned that it could start a fire. The resident requested that the landlord visits the property urgently. He also mentioned other issues of ASB by the neighbours. In its response of 7 May 2020, the landlord advised that it had sent him a section 20 notice about works to be carried out. The issue of ASB had been referred to the appropriate staff member who was attempting to contact his tenant.
The resident reported on 26 May 2020 that the contractors had visited to undertake works to the exterior pipe. An hour after this visit there was evidence of the leak still being ongoing. He requested that the landlord finds alternative accommodation for his tenant until the issue was resolved. The landlord’s records indicate that it raised a priority recall order with respect to the works and a new date was agreed for 29 May 2020. The contractor completed the works over a few visits, and it was confirmed on 10 June 2020 that there were no further leaks.
In its final decision of 19 June 2020, the landlord apologised for the delays in its rectification of the matter. It stated that the works had been completed after several attempts and this was due to internal service failings. It also acknowledged that there had been poor communication and considerable inconvenience to the resident. It offered him £750 in compensation for the poor experience in this matter.
The landlord clarified that the insurer for leasehold properties would complete repairs to interior damage of the property so as to restore it to its previous position before the leaks. It stated that the resident had been accurately advised regarding damage to any personal belongings. He could make a claim to the landlord’s insurers and his tenant should be able to claim on their contents’ insurance. The landlord would not consider any claim for loss of rental income as it was not its responsibility to guarantee rental income for leaseholders.
The resident wrote to express his dissatisfaction with the landlord’s offer of compensation and to state that he had experienced communication difficulties in making his claim to the insurance company.

Assessment and findings

The resident’s lease agreement provides in part 1, clause 1 of the sixth schedule that it is the landlord’s responsibility to repair and maintain the structure of the building including the ceilings, gutters, rainwater soil and waste pipes. The landlord’s Repairs Policy provides that it will complete repairs to leaking pipes, which is categorised as an urgent repair, within three working days.
The landlord was timely in attending to the repairs when it was reported in September 2019. No evidence has been provided of the further leaks reported in December 2019 being resolved within the requisite timescales. However, in the landlord’s responses to the matter it was consistent in acknowledging that there were delays to its completion of the repairs. The matter to be decided by this Service is, therefore, whether it has provided the appropriate response to the requests made by the resident with respect to compensation and reimbursements.
The landlord’s internal correspondence indicates that there was some confusion around access to the flats as staff members were not always clear whether access issues were in relation to the resident’s flat or the neighbour’s flat. There was also confusion around who was to be contacted, as it appeared that the landlord had not ascertained that the tenant’s contact details were in the possession of operatives who needed to confirm visits. There was also some confusion, in March and April 2020, about what had to be completed in the neighbour’s flat and how the appointments were to be arranged.
When the landlord did contact the neighbour, it experienced difficulties in agreeing an appointment for the works. The landlord would have required legal authorisation to gain forcible entry into the neighbour’s flat. It would have been unreasonable for the landlord to embark on legal process in this regard as it would have involved expending considerable time and effort and prolonged the works further. This would have been even more difficult at time as the issue because the situation was occurring during the first national lockdown. Thus, it was appropriate that the landlord continued to make effort to contact the neighbour until an appointment was agreed.
A claim for reimbursement for damaged personal items is not dealt with within a landlord’s internal complaints process. Negligence is a legal matter to be decided by the courts and residents are expected to make a claim to their insurer in such cases, alternatively, they may make a claim to the landlord’s insurer, who would consider whether the landlord is liable for the damaged items. This also means that any issues around the handling of the insurance claim is outside the complaints process and the resident may contact the insurer to request for information on how to escalate the claim. This includes any outstanding interior works to the property.
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’. It is also in accordance with clause 3.6 of the landlord’s Complaints Policy. The fact that a resident has not insured their personal items does not create an obligation on the landlord to deal with the matter outside the insurance claim. However, it is for the resident to pursue a claim via the appropriate channels.
As already stated, there is no landlord and tenant relationship between the resident’s tenant and the landlord. The resident is the tenant’s landlord and should therefore have insured undertaken a landlord’s insurance policy. The tenant should also have insured his personal items. Where the resident and his tenant have not taken the stated insurance, an obligation is not created for the landlord to take responsibility for any loss or damage experienced by the tenant.
There was no agreement between the parties that the resident could undertake the works independently and seek reimbursement from the landlord. This Service therefore concludes that the issue of reimbursement should be referred by the resident to the insurers or the courts which would decide whether the landlord is liable to make payment.
The resident’s lease agreement does not include an obligation on the landlord to ensure that he is able to make an income on the property. This Service is also not able to consider the use of property for income generating purposes, thus his assertions in this regard are outside the jurisdiction of this Service to consider. He may therefore wish to seek legal advice with respect to this aspect of his complaint as it will be considered as a claim for damages.
While the resident states that there was a delay of four months in the landlord’s consideration of the formal complaint, it must be noted that he stated in his complaint email of September 2019 that he would want a complaint to be logged unless the matter was resolved. The records show that a repairs visit occurred on the following day and there was no further report of the leak until December 2019 three months later. When the resident reported this further leak, he again stated that a complaint should be considered if the repair was not resolved.
From the foregoing, this Service finds that the issue was not ongoing in the months between September and December 2019 as there was no report to the landlord within that period. This means that it will be reasonable to consider the complaint as having been properly made in December 2019 when a leak was again reported.
In its stage one decision on the matter the landlord failed to address vital aspects of the complaint. Although, it appropriately advised the resident about making an insurance claim with respect to his damaged personal items, it did not clarify how damage to the property would be dealt with. When the resident raised these omissions in his escalation request on the complaint the landlord acknowledged that there were outstanding matters, and it would address these. The issues were dealt with in the final decision and an appropriate response provided as well as compensation for the landlord’s shortcomings.

It is good practise for landlords to provide comprehensive complaint decisions even when it is their intention to address the issues more thoroughly in follow up correspondence. It would have been more appropriate for the landlord to mention the outstanding aspects of the complaint and clarify that it was its intention to address these later. This was a particularly significant omission as the landlord had promised to address the issue of compensation in its email to the resident prior to the stage one decision. Nonetheless, as stated in the preceding paragraph, the landlord offered compensation which included its poor communication on the matter.
Overall, this Service finds that there were significant failings in the landlord’s handling of the issues. On each identified issue it has appropriately offered compensation, advised the resident of its policy, or signposted him to make an insurance claim. This report has addressed the adequacy of its responses with respect to the insurance and policy matters in the preceding paragraphs. The paragraphs below will address the issue of the amount offered him in compensation.
The Ombudsman’s remedies guidance provides that the sum of £250 to £700 is adequate compensation for cases where the resident is ‘repeatedly having to chase responses and seek correction of mistakes, necessitating unreasonable level of involvement by that complainant’. Amongst other scenarios of significant shortcomings by the landlord, it also applies where there has been ‘failure over a considerable period of time to act in accordance with policy – for example to address repairs; [and] repeated failure to meaningfully engage with the substance of the complaint, or failing to address all relevant aspects of complaint, leading to considerable delay in resolving complaint.’
The excerpts from the remedies guidance (above) describe the situation in this complaint as assessed by this Service. Thus, the amount offered in compensation by the landlord is considered by this Service as falling within the range that would adequately redress the landlord’s failings in dealing with the issues. This includes the delay gaining access into the neighbour’s property to resolve the leak; the failure to attend a pre-arranged works visit; the delays to completing the works to the soil pipe and drains; the loss of the use of part of the property; delays in responding to specific queries raised by the resident and the inconvenience to him due to the issues. While no mention was made of the insufficient stage one decision, this Service considers but the amount offered in compensation suffices to include this aspect of the matter.

Determination (decision)

In accordance with paragraph 55(b) of the Housing Ombudsman Scheme (the Scheme) the landlord has offered redress to the resident prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily with respect to:
1. Its handling of repairs due to leaks which affected the leasehold property.
2. The level of redress offered by the landlord for the delay, distress and inconvenience caused.
In accordance with paragraph 54 of the Scheme, there was no maladministration by the landlord in its handling of:
1. Its response to the request for redress for damage to the resident and his tenant’s personal belongings.
2. The resident’s request for the loss of rental income he incurred during the delays.

Reasons

The landlord acknowledged its failings with respect to the handling of the leaks and offered an amount in compensation which this Service has assessed as having adequately redressed all the issues. It accurately advised the resident to make an insurance claim for damage to his personal items. This advice applies to the resident’s claims for loss of income, reimbursement requests for any expense which he states was made in his attempt to resolve the issue and any loss or damage experienced by his tenant.

Recommendations

The landlord should consider contacting the resident to arrange for further inspection of the rainwater goods and exterior walls and agree any required repairs in accordance with its inspection report. The decision of reasonable redress by this Service is partly based on its conclusion that the landlord has taken responsibility for rectification of the exterior source of leaks to the property.