Hyde Housing Association Limited (202012954)

REPORT

COMPLAINT 202012954

Hyde Housing Association Limited

5 October 2021

Our approach

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

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

The complaint

1. The resident complains about the landlord’s handling of cracks and structural issues at the property, and its response to her subsequent formal complaints.

Background

2. The resident holds a periodic tenancy for the semi-detached property.
3. The landlord’s complaint policy in place during the period covered by this report set out a two-stage process. At stage one complaints would be responded to by the team providing the service to which the complaint related. It would aim to respond as soon as reasonably possible and not later than twenty working days. Stage two was a Senior Management Review, with an aim to respond as soon as possible and not later than twenty working days from the complaint escalation date.
4. The compensation policy in place at the time set out that compensation could be paid for ‘Delay and Distress’ as follows:
   1. Low Impact – up to £100: The complainant has just cause but has not suffered significant inconvenience or distress as a result of the events. 
   2. Medium Impact – £250: The events are clearly an injustice to the complainant and the service has failed to meet the required standards. This includes a repeated failure to address the shortcoming:
   3. Major Impact – £500: When a serious failure in service standards occurs. It could either be the severity of the event, persistent failure   over a protracted time period, or an unacceptable number of attempts to resolve and address the complaint.

Summary of events

1. It is not clear exactly when the issues with cracks and subsidence were first made known to the landlord, but a surveyor report dated 4 May 2016 noted that there were significant cracks in the property which were ‘possibly indicative of slight subsidence’. A number of recommendations were made to investigate this further, and for a tree to be removed.
2. Some works were carried out in 2016, such as the removal of a tree and drain and soil investigations. There was also a period of crack monitoring around this time.

3. The resident made a formal complaint on 23 October 2018 about ongoing issues with cracks at the property, some of which she could see daylight through, and said that scaffolding that had been put up in July had not been taken down. The resident stated that she had made a formal complaint in September 2018 but this had not been responded to. The resident was very upset that the matter had been ongoing for five years, and that the landlord’s communication had been poor.
4. A repair order was raised for the cracks at the property to be investigated, and the landlord’s Property Services Resolution Officer sent an acknowledgment on 6 November 2018 stating that they aimed to have a response by 20 November 2018.
5. A number of holding letters were then sent, during which time the landlord attempted to address the issue of cracks at the property, for example by carrying out a survey.
6. A stage one response was provided on 26 February 2019 (signed by the Property Services Resolution Officer). In this the landlord noted that while the issue of cracks was first raised in 2014, only events 12 months prior to the formal complaint could be considered, and so the investigation had focused on the period November 2017 onwards.
7. The letter set out that in 2016 an inspection was carried out by its contractor (contractor one), and following this, trees were removed and a survey of the drains was carried out. There was then a period during which monitoring took place, to determine whether the cracks continued to grow or further cracks appeared. The letter said ‘Unfortunately, the end of the monitoring period was not identified and it was not until you made contact in July 2018 that the matter was raised and our surveyor…carried out an inspection in August 2018.’
8. At this point contractor one was no longer being used, and so a second contractor (contractor two) was appointed. Contractor two requested a copy of the report made by contractor one, and it took some time to obtain this. The report highlighted further testing to be carried out and contractor two was instructed to do so.
9. The landlord explained that in light of the resident’s complaint it had pushed for contractor two to attend and carry out its survey. This took place on 27 November 2018, but then a decision was made that contractor two would no longer be used.
10. A third contractor (contractor three) was therefore instructed to review the contractor two report and assess what further testing, if any, was required, and if a plan of action could be put in place to resolve the problem.
11. There were further delays in getting someone from contractor three to attend and the landlord apologised for this. A visit eventually took place on 24 January 2019 and contractor three spoke with the resident directly about what would happen next. Contractor three made a number of recommendations:
    1. A CCTV survey to check the condition of the drains.
    2. Repair cracked or leaking drains if highlighted.
    3. A trial hole to be dug in the gravel to the front of the property to both check the depth and condition of the existing footing and examine the nature of the soil.
    4. Soil investigation undertaken to involve a least one window sample borehole.
    5. Stitch repair the cracked brick work with steel ties.
12. These works were currently being organised and contractor three had promised to keep the resident informed of progress. The landlord noted that the resident had tried to raise a formal complaint in September 2018, but this was not acted upon, and apologised for this further failure in responding to her concerns. It concluded ‘As a result of my investigation it is clear that you have been subjected to unnecessary delays in trying to tackle the issues that you have within your home. There has been a breakdown in communication on several occasions, as well as…change structural surveyor twice. These failings have been exacerbated by further delays in information being passed between departments and contractors.’
13. The complaint was therefore upheld, and the resident was offered £350.00 compensation, made up of £250.00 for the delays and a further £100.00 for the inconvenience caused. The letter ended explaining that dates for the tests would be discussed with the resident directly, results monitored, and any further recommendations taken forward until such time as the subsidence had been addressed and any internal works completed. The resident’s complaint would be reviewed by the Contracts Manager to highlight the service failure she had experienced, and improvements needed by the landlord.
14. The resident replied on 10 March 2019, stating that apart from two structural surveys, a CCTV test and soil test, nothing had been solved, and no works planned to repair the many cracks within the property or the possible subsidence issues. She stated that every single room in the house had been affected as well as the paving around the outside of the property. While contractor three had carried out CCTV surveys of the drains and taken a soil sample, these tests had been previously carried out. The resident noted that she had asked for copies of the reports from contractors two and three but had not been provided with these. The resident declined the offer of £350 compensation as this was insufficient to recognise the delays, stress and works that were needed to repair her home.
15. Ten holding letters were sent to the resident over the next 13 months, during which time the landlord continued to try and address the issues at the property, with further surveys being carried out and contact made with loss adjusters and insurers.
16. A stage two response (signed by the Director of Property Services) was provided on 2 April 2020. The letter stated that works had been approved by the landlord’s insurers and it had contracted Building Consultants to complete the remedial works. The letter said ‘Having reviewed your complaint, I agree that we contributed to the delays in the repairs and should have communicated this to you better…I’m sorry it took us so long – I can understand why you feel so let down.’ The letter said that to make up for what happened an additional £150 was offered. The letter set out that this was for inconvenience caused.
17. The letter noted that following the stage one response on 26 February 2019, it was agreed that the recommendations from contractor three would be carried out. This went ahead, and reports were provided to surveyors for further actions. Sometime after this the resident contacted the landlord as she was unhappy with the progress being made, the impact this was having on her family and that the scaffolding was still up. The former Surveying Team Leader was in contact with the resident and kept her updated on developments with the loss adjuster and the insurers, who the landlord had to rely on to progress the works.
18. The letter said ‘Structural issues are often complex and not quick to resolve, and I have been assured that we tried to expedite the process wherever possible. However, I do appreciate the negative impact that would have had on you and your family.’ The resident was informed in June 2019 that a specification of works and quotes had been provided by contractor three, and this was passed to the insurance team for approval and scheduling. It was acknowledged that following a staff member leaving at that time, the resident had experienced difficulty obtaining updates. However, she was then informed that the insurer had requested a further drain survey. The landlord liaised with the loss adjuster around tree removal and drainage works to address the structural issues. There were issues progressing the drain works with the loss adjuster and engaging it to resolve this issue.
19. The letter acknowledged that the resident had become increasingly frustrated at the lack of progress and the lack of contact around the repairs and what was happening and said, ‘I assure you that work was happening behind the scenes but accept we should have kept the line of communication open, so you knew what was happening.’ The loss adjuster then requested further information about the trees that were moved over the years, and further details of the CCTV survey results, and asked the landlord to excavate the earth around the rainwater pipe to find out where this was draining too, advising that once this was inspected, it would be able to move forward with the remedial works.
20. Once all the information and findings were provided, the claim was accepted, and the landlord was able to schedule the remedial works. The Building Consultants would be contacting the resident to schedule the repairs when able to do so. The landlord explained that in cases where subsidence was suspected, it referred to its building insurers, who then arranged for a loss adjuster to monitor the property for around 12-18 months to see if there was any further movement. During the monitoring period the loss adjuster may request that the landlord complete works such as removing tress, inspecting drainage and completing ground surveys to find out why the property was moving or if it had stopped moving. In this case, the loss adjuster found that the property was no longer moving and instructed other investigations as a precautionary measure before the landlord could complete remedial works.
21. The letter concluded ‘Whilst this was outside the scope of your control, I do accept that the internal changes had an impact on the progress we made, and our communication was poor. This is why I agree with our decision and offering you some more compensation to put things right.’ The landlord offered the resident a total of £500 compensation.
22. On 9 October 2020 a pre-start meeting was held at the property, with the scope of the works detailed as internal and external reinforcement bars, repairs to cracked foundation, reinforcement straps to floor joists, render and plaster repairs, and redecoration. The proposed start date was 26 October 2020, but this did not go ahead. The Ombudsman understands that the resident and landlord are in the process of arranging a decant so that the works can begin.

Assessment and findings

Repairs

23. In her complaint to the Ombudsman, the resident explained that there had been issues with damp, cracks and roofing at her home, and said that over the years it was discovered that there was subsidence. The resident stated ‘We have had to battle every step of the way. We have continually been let down with the promise of works being completed. I have had to start on blood pressure tablets and my mental health has been seriously affected.’ She has explained that works were supposed to be completed in October 2020 but these could not go ahead as the landlord was unable to find a suitable property to decant her family to. The works were postponed until February 2021, but when the resident tried to obtain updates from the landlord she did not get put through to right staff members, got promised call backs that did not happen, and had no replies to her emails.
24. The Ombudsman has attempted to contact the resident to discuss her complaint, the current situation and the outcome sought, but has been unable to do so. Therefore, this investigation must mainly rely on the information provided by the landlord.
25. It is important to note that while the Ombudsman is aware that the issues at the property remained ongoing after the landlord’s April 2020 final response and have yet to be remedied, this investigation concentrates on the period addressed in the formal complaint (2017 to the date of the final response, April 2020). This is because paragraph 39(a) of the Scheme sets out that the Ombudsman will not investigate complaints which are made prior to having exhausted a member’s complaints procedure. As the more recent issues have not been the subject of a formal complaint, this Service is limited in the extent it can assess them. Should the resident wish for events after January 2020 to be considered by this Service it is open to her to raise them as a formal complaint with the landlord in the first instance. It is noted that she lodged a disrepair claim in April 2021.
26. When assessing a landlord’s response to reports of a problem, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes. There are only three principles driving effective dispute resolution:
    1. Be fair – treat people fairly and follow fair processes
    2. Put things right
    3. Learn from outcomes
27. In line with its repair policy and the Landlord and Tenant Act 1985, the landlord had a duty to investigate and address the cracks and structural issues at the property when these were reported. It is not clear exactly when the issues with cracks and subsidence were first made known to the landlord, but from the 4 May 2016 surveyor report it can be concluded that it was aware of problems in early 2016 at the latest, and so was obliged to act to address these.
28. The evidence available (in the form of invoices) shows that some works were carried out in 2016, such as the removal of a tree and drain and soil investigations. However, in its February 2019 stage one response to the complaint the landlord acknowledged a number of issues and errors made in its handling of the matter following on from this, such as:
    1. No action was taken by the landlord after the end of the monitoring period until the matter was raised by the resident in July 2018.
    2. There was a delay in obtaining contractor one’s report, and when this was obtained, testing that had been recommended was still required.
    3. After instructing contractor two to carry out this testing and it undertaking a the survey, the landlord then decided it would no longer use that contractor.
    4. There were delays in the third contractor appointed in attending, and this did not happen until late January 2019.
    5. There had been a breakdown in communication with the resident on several occasions
29. While it was appropriate for the landlord to acknowledge the failings here, it has not offered any explanation as to how the end of the monitoring period was missed, or why the testing recommended by contractor one was not carried out, or shown that it has ‘learned from outcomes’. This is concerning both in terms of its repairs process, which should ensure that such works are monitored and progressed, and its record keeping practices, which should ensure that a ‘paper trail’ of such matters is available to interrogate and determine the cause of the failure.
30. The April 2020 stage two response did not recognise any errors or delays in progressing the works following on from contractor three’s January 2019 survey, but did acknowledge failings in communication.
31. The information available for the 2019 period is somewhat scant, making an assessment of the landlord’s actions during this time difficult. There is some evidence of the landlord progressing the matter following contactor three’s recommendations in January 2019. The following month the landlord instructed a soil consultant to carry out investigations to provide further information on the potential causes of the cracking. The soil consultant issued its report in April 2019, making recommendations for remedial measures, such as underpinning. In the meantime, a drain survey was carried out in March 2019, which identified some remedial works required. This shows that the landlord was taking action to carry out contractor three’s recommendations and address the issue. A letter to the resident dated 14 June 2019 explained that the landlord had received the quotations for the required works, and due to cost and internal processes it was awaiting approval from its insurance team.
32. However, the evidence does not wholly support the landlord’s suggestion in its stage two response that the time taken to progress the matter at this point was due to the loss adjuster requesting further information and works. This Service has seen internal emails between the landlord and the loss adjustor from July 2019, with the loss adjuster asking for clarification in some areas, including whether the drain works had been completed. The landlord arranged a further drain survey in light of this, but the records show that the wrong drains were surveyed.
33. The loss adjuster continued to chase the landlord for information, pointing out on 8 September 2019 that the information that they had requested at the end of July 2019 was outstanding. An internal email dated 17 September 2019 shows that at this point the landlord realised that the drain works had not been carried out and was attempting to arrange this. It is not clear when it supplied the loss adjuster with the information requested.
34. The Ombudsman accepts that matters that are dealt with via loss adjusters/insurers can take time, and to a great extent this can be outside of a landlord’s control. But the evidence available shows that to some extent, further delays were caused by the landlord during this period.
35. It was not until March 2020 that a schedule of works and tender was agreed, approximately three years after the crack monitoring was completed, and over a year after contractor three’s survey. Overall, it has taken too long for the landlord to address the repair issues at the property, and there has been maladministration in its handling of the matter. Given that the resident has had to be decanted from his property for the works to take place, it would seem that the repairs required are significant.
36. The landlord has offered a total of £500 in compensation, £350 which was in recognition of the failures in the handling of the repair prior to January 2019, and £150 for communication failures after this.
37. While the £150 was reasonable, the £350 was insufficient to ‘put things right’ for the resident. While the failings could be said to fall between ‘medium impact’ and ‘major impact’ as set out in the landlord’s compensation policy, the ongoing delays exacerbated this. Further, the amount does not recognise the additional delays in the landlord’s handling of matters after January 2019, and the extra time, trouble and stress the resident experienced because of this. 

Complaint handling

38. The landlord failed to respond to the resident’s September 2018 complaint, which it acknowledged and apologised for. It then took three months to provide its stage one response, which was significantly outside of the 20 working days specified in its complaint policy. It did send a number of holding letters explaining that the delay was due to the works required not having been carried out. For example, on 29 January 2019 its holding letter referred to the structural report that would shortly be available, allowing it to provide a response. While to some extent it is not unreasonable to delay a complaint response a short period while waiting on the outcome of repair issues, three months was too long and would have added to the resident’s frustration.
39. The stage two response took 13 months to provide, which was wholly unreasonable. The landlord did send holding letters keeping the resident informed, which generally explained that it had expected to have been able to issue the final response assuming that all repairs would have been completed, but as they had not been, ‘…we need to extend your complaint closure date until such time as it can be resolved.’ This was not ‘fair’ and the landlord did not follow due process here. Given the nature of the repairs involved and the delays and difficulties in addressing these, the complaint response should not have been delayed until these were completed (and indeed they have still not been completed to date). This would have been extremely frustrating for the resident, and she would have been unable to progress her complaint while waiting for the landlord’s ‘final response’.  
40. There has been maladministration in the landlord’s handling of the formal complaints, and it has not taken any action to ‘put things right’ in relation to the complaint handling failures identified here.

Determination (decision)

41. In line with Section 54 of the Scheme, the Ombudsman finds maladministration in the landlord’s response to reports of cracks and structural issues at the property, and maladministration in its handling of the formal complaints.

Reasons

42. The issue with cracks and the possibility of subsidence was known to the landlord by early 2016 at the latest. By its own account, there were a number of errors and delays following this until January 2019. This investigation has found that there were further delays on the part of the landlord in 2019. There have also been failings and significant delays in responding to the formal complaints, which the landlord has not ‘put right’.
43. Therefore, this Service makes orders to remedy this complaint. The compensation ordered below is in recognition of the time, trouble and frustration the resident experienced due to the failings identified here.
44. It should also be noted that while the resident has referred to detrimental impact on his health, the Ombudsman Service cannot determine claims for compensation for the impact a case has had on someone’s health. A claim for compensation due to health issues requires an assessment of liability. Only the courts can provide a decision of liability following a personal injury claim by the resident against the landlord. Therefore the resident would first need to seek appropriate independent legal advice.

Orders and recommendations

45. Within one month of the date of this report, the landlord should pay the resident a total of £900, comprised of:
    1. £600 to remedy the time, trouble and stress caused by the delays in progressing the repairs.
    2. £300 to remedy the time, trouble and frustration caused by the failings and delays in the complaint handling
46. If the previously offered £500 has already been paid to the resident, this can be deducted from the above amount.