Lambeth Council (201900571)

 

 

 

 

REPORT

COMPLAINT 201900571

Lambeth Council

6 July 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 Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

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

The complaint

1. The complaint is about the landlord’s handling of:

a)     The resident’s reports of a water leak, resulting in damp and mould, in the property.

b)     The complaint made by the resident about this matter.

Jurisdiction

2. The resident’s reports relating to overflowing guttering or a leak, seemingly coming from the balcony above her property, date back to 2011.
3. In accordance with paragraph 39(e) of the Housing Ombudsman Scheme, the Ombudsman will not investigate complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising.
4. Based on the evidence provided, it appears the resident did not raise a formal complaint regarding the matter until April 2019. Therefore, this Service is unable to consider the landlord’s handling of the resident’s repair requests dating back to 2011. Instead, this investigation will focus on the recent reports dating back to late 2018, which is six months before the complaint was raised in April 2019. Any reference to historic reports of leaks are for contextual purposes only and have not formed part of the assessment.

Background and summary of events

5. The resident is a leaseholder of a maisonette, in a block of maisonettes.
6. The landlord requested a survey to the drainage affecting the resident’s flat on 12 October 2018, 13 November 2018 and on 19 December 2018. It later transpired that there were issues with the survey being carried out due to the contractor not being able to gain access to one of the neighbouring properties.
7. The landlord received a report from the contractor, dated 18 March 2019. This confirmed that the surveyor inspected the damp–affected wall and ceiling in the resident’s property on 27 February 2019. A follow–up visit was completed on 7 March 2019, to inspect two maisonettes above her property. The private balcony to the property directly above the resident’s was inspected from the neighbouring private balcony. It was not possible to inspect this balcony from inside of the property due to problems gaining access. It was commented that, if the waterproofing layer to the private balcony above the resident’s was defective, it was possible that water could penetrate the bedroom of the resident’s property.
8. It was also commented, in the report, that, if any cracks were not repaired prior to the installation of the new waterproofing layer and the tiles, it would be possible that water entrapped between the tile and the waterproofing layer could have penetrated the soffit of the bedroom slab, causing dampness to the resident’s wall and ceiling. However, based on observations, it was concluded that the water penetration to the maisonettes had stopped since the landlord installed the new waterproofing layer and tiles to the private balconies some years prior. The contractor said it was “safe to assume that black mould seen on the wall and ceiling in the upper floor bedroom to [the resident’s maisonette] was “historical”.
9. It was recommended that: any damp and mould affected paper to the wall and ceiling was removed; a damp seal was applied to the effected wall and ceiling; lining paper and decoration was reinstated; and any damp penetration or water staining was monitored. If damp persisted, it was recommended that further investigation was undertaken. This would involve removal of tiles and waterproofing layer to the private balconies to the upper maisonnettes, carrying out concrete repairs to the balcony slabs, and reinstatement of waterproofing layers and tiles.
10. On 11 April 2019 this Service advised the landlord that it received a call from the resident’s representative, wishing to raise a complaint on behalf of the resident. The complaint issues were described as leaks and water damage in the property, which was getting progressively worse. The resident said she raised repair requests and complaints multiple times but was not aware of the current state of the complaint or the repairs.
11. The landlord responded on 12 April 2019 that it could not find a record of any complaint being submitted by her, only call records to discuss issues with repairs. It confirmed that it would contact the resident’s representative to discuss repair concerns, appropriate action and timescales for outstanding issues and as any other queries they may have. It confirmed that it would also advise the resident and/or her representative how a complaint could be raised if it was unable to resolve any concerns to the resident’s satisfaction.
12. The landlord wrote to the resident’s representative on 24 April 2019. It confirmed that the concerns had previously been reviewed and the cause of the initial leak was noted as resolved. It also said that, in line with the structural report, recommendations had been outlined to remedy the water damage to the walls and ceilings in the resident’s property. The landlord advised that, as a leaseholder, it was the resident’s responsibility to have these repairs carried out. Additionally, the landlord said that the resident may want to submit a claim to her leaseholder insurance or her internal contents insurers. Alternatively, if she thought that the landlord was liable, she may submit a claim for consideration to its insurers.
13. The landlord proceeded to provide information on its complaints procedure and how the resident may complain, and apologised if there was any previous misunderstanding about how to address the repairs needed or if the recommendations were not previously made clear.
14. A representative of the resident wrote to the landlord on 9 August 2019 and asked to make a formal complaint regarding its handling of water leaking into the property. They identified that the affected area had been redecorated after the initial leak in 2015. They detailed that, although an inspection was carried out, a more detailed one to find the source of the leak ought to be done.  The matter had been ongoing for some time, there was a lack of updates, and the landlord had not contacted the neighbour, who was willing to give access for further investigation into the cause of the leak.
15. The resident and/or representative contacted her local member of parliament (‘MP’) regarding the water damage. The MP wrote to the resident on 13 August 2019 to confirm that the landlord told her that it had scheduled an appointment for an inspection on 15 August 2019.
16. Following contact from the resident, this Service wrote to the landlord on 11 November 2019. It confirmed that the resident’s representative had received no response to the complaint and the resident had been told that an appointment was arranged for a surveyor to attend, yet they did not contact the resident or her neighbour.
17. On 12 November 2019 the landlord raised a formal complaint.
18. On 18 November 2019, this Service informed the landlord that the resident asked for a surveyor to attend and assess the damage following the leak.
19. The landlord responded to the complaint on 27 December 2019. It said that it previously responded to the matter in an email dated 24 April 2019 and its position remained the same. The landlord confirmed that a request for another property inspection was received in August 2019 and its area surveyor recommended that the property be ventilated to help address the current damp and mould concerns. However, the landlord noted that this advice may not have been relayed directly back to the resident and it apologised for this oversight.
20. The landlord concluded that a further inspection was not deemed necessary by the area surveyor at this time and notes had been made on the resident’s account in an effort to prevent any further orders being raised in error, like that of the repair raised on 2 December 2019. The landlord advised how the resident may request to have her complaint reviewed if she felt it had not been resolved.
21. Following further contact from the resident, this Service wrote to the landlord on 27 May 2020. It advised that the resident did not believe the landlord thoroughly investigated the gully and balcony for the source of the leaks.
22. The landlord issued its final complaint response to the resident on 30 June 2020 and maintained its earlier position regarding the complaint. The landlord advised:

a)     A further repair request was raised on 19 December 2018 for a survey to the drainage allegedly affecting the resident’s flat. There continued to be issues with the contractor gaining access. Eventually, he was able to gain access and the landlord asked for a copy of the contractor’s surveyor’s report on 6 February 2019.

b)     On 27 March 2019, the resident’s representative asked for a response from the surveyor. It was noted that there were no defects identified in the survey report and therefore no follow-on repairs required.

c)     A repair was raised on 2 December 2019 following the report of a water leak from the balcony. It was noted that this issue was resolved and that as a leaseholder, the resident would be responsible for the internal repairs to her property.

23. The landlord noted that the issue of the leak had been ongoing for a considerable length of time and officers attended to investigate this matter and various repairs were raised concerning the leak. However, the surveyor maintained that the condition of the property was due to condensation, rather than a leak from the balcony above. Humidity was found in the property when visits were carried out, fresh air was not allowed to flow into the property and there was no extraction in the bathroom. Considering the recommendation made in the report regarding this issue, the landlord concluded that it had taken the necessary actions to address this matter.
24. However, to “remove any likelihood that there is a leak from the balcony above”, the landlord raised a repair request to re-coat the balcony of another property with glass reinforced plastic. The landlord provided the resident information on how the resident may refer her complaint to this Service if she remained unhappy.

Assessment and findings

Water leak

25. The resident’s lease with the landlord explains that she is responsible for repairing the ceiling of the flat; and the interior plaster coverings and plaster work, tiling and other surfaces of floors, ceilings and internal walls of the flat. The landlord is responsible for the exterior and structure of the property and ‘all walls bounding the flat any conduits within the building which the flat forms part of and which do not exclusively serve the flat’.
26. Therefore, when a resident reports a water leak into their property, the landlord is responsible for investigating the source of this, to identify the source and confirm whether it is responsible for any repairs to remedy this.
27. The landlord conducted an inspection of the balconies of the neighbouring maisonettes in the building to identify the source of the water leak reported by the resident. In line with the findings of the report, the landlord advised the resident that the source of the initial leak was resolved when it had carried out repairs to the balconies previously. It advised that the recommendations for repairs inside the property, to address any condensation and mould, were the resident’s responsibility, and its area surveyor recommended that the property be ventilated to help address the current damp and mould concerns. In the report, it was also commented that, if the waterproofing layer to the private balcony above the resident’s was defective, it was possible that water could penetrate the bedroom. The landlord confirmed that it would arrange for the waterproofing layer to the balcony above the resident’s to be completed again, to ensure that this was not the source of the damp.
28. The landlord’s explanation to the resident mirrored the information given by the surveyor it instructed and was therefore accurate. While the resident may not agree with the surveyor’s findings, it is reasonable for a landlord to listen to the opinion of its qualified contractors and the Ombudsman has not seen evidence to confirm the surveyor’s report was inaccurate.
29. It is noted that the resident felt that the survey carried out had not been thorough enough because access had not been gained to view the balcony from the property directly above hers. However, the survey details that, due to problems obtaining access to this property, this balcony was inspected from the neighbouring private balcony. Nevertheless, the surveyor was able to make their observations and conclude that the water penetration to the maisonettes had stopped since the landlord had installed the new waterproofing layer and tiles to the private balconies some years prior. It found that the black mould seen on the wall and ceiling in the upper–floor bedroom of the resident’s maisonette was historical. Because of this, it would not be necessary for the landlord to undertake a further inspection to address the reported water leak. Therefore, the landlord’s response to the substantiative issue was reasonable.
30. The survey report produced in March 2019 did though make a recommendation about monitoring and potential further investigations/works. The landlord did not make clear if it accepted this recommendation (and if so what monitoring arrangements would be put in place) or if it was rejecting this recommendation and the reasons why. There is no clear evidence that the landlord inspected the property between the survey report being produced and the landlord’s final complaint response in June 2020. The landlord did state in its complaint response in December 2019 that it did not believe that a further inspection was necessary as the issue related to the property requiring ventilation. It was though reasonable to expect a more direct response to the survey recommendation and that the resident was appropriately informed.
31. The resident has expressed her dissatisfaction with the landlord’s overall communication and lack of updates on the matter. The resident did not refer to a specific period of time where she did not receive sufficient updates and, as the issue has been ongoing for some years, it may be difficult for the landlord to provide evidence that it kept the resident updated the entire time. However, while the landlord gave a timeline of events in its complaint response, it has provided limited evidence of its correspondence with the resident regarding the reports. Therefore, this Service cannot determine that in the months leading up to the complaint (as per paragraph 4 of this report) that the resident was kept updated.
32. As it cannot be determined whether the resident was kept updated on her repair reports, and some communication issues are identified above, the Ombudsman finds that there was service failure in the landlord’s record keeping and communication. Landlords should keep a robust record of correspondence with its residents to ensure that they are keeping up with service standards and to enable complaints to be investigated effectively, both internally and by the Ombudsman. This lack of information has caused inconvenience to the resident as it has impeded the Ombudsman’s investigation into her complaint. The landlord should pay compensation view of this.

 Communication and complaint handling

33. The landlord’s Complaints Policy confirms that it has an informal, ‘early resolution’ stage. At this stage the resident will not receive a written response but if they wish for a written response or remain dissatisfied, the complaint will be escalated to the next stage. This stage is called the ‘local resolution’ stage of the landlord’s complaints procedure. The landlord will usually provide a response to local resolution complaints within 20 working days.
34. Based on the above, the landlord should have responded to the complaint, made on 9 August 2019, within 20 working days. However, despite the landlord confirming in its later complaint response that it received this letter, a ‘local resolution’ complaint was not logged until November 2019, following this Service’s involvement. The landlord did not provide a reason for or address this service failure in its complaint response.
35. The landlord unreasonably delayed in raising the resident’s complaint, which was a service failure as it had not adhered to its Complaints Policy. In not addressing this in its complaint response, the landlord failed to put matters right. In acknowledgement of the delays and inconvenience caused to the resident, it would have been reasonable for the landlord to offer its apologies and compensation.

Determination (decision)

36.  In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s reports of water leak, resulting in damp and mould, in the property.
37. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the complaint.

Reasons

38. The landlord’s response to the substantiative issue of the water leak was reasonable and based on surveyor advice. However, the landlord unreasonably delayed in raising a formal complaint and has not evidenced that it communicated effectively and kept the resident updated in its investigations of the reported water leak. The landlord should pay the resident compensation, in line with its Compensation Policy, as redress for the distress and inconvenience caused.

Order

39. In light of the findings of this investigation, the landlord is ordered to:

Pay the resident £225 within four weeks of the date of this determination for the distress and inconvenience caused to her by the service failures identified.

Recommendation

40. It is recommended that:

a)     The landlord reviews its record keeping, to consider whether any changes are necessary to ensure that it has a clear audit trail of contact from residents.

b)     The landlord considers staff training to ensure that its Complaints Policy is being followed correctly.