Lewisham Council (202217117)

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REPORT

COMPLAINT 202217117

Lewisham Council

5 September 2024

 

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 complaint is about the landlord’s handling of the resident’s reports of a leak.
  2. The Ombudsman has also considered the landlord’s complaint handling.

Background

  1. The resident has been a leaseholder of the landlord since 13 November 2019 and lives in a 3 bedroom maisonette in a block. The landlord is a local authority. An arms-length management organisation (ALMO) provided housing management services until 1 October 2023 when these functions were taken over by the local authority. In this report the ALMO is referred to as the landlord.
  2. The resident contacted the landlord on 14 December 2021 saying he had been chasing the landlord to fix a leak since 2020. It appeared to be coming from the roof, water was getting into his bedroom through the windows and he had to keep a towel on the windowsill to soak it up. He said the landlord had attended on 5 October 2021 and he had been chasing it for an outcome since then. The landlord said it would get back to the resident with an update.
  3. The resident chased again on 3 February 2022 as he had not heard anything. He asked when the landlord would fix the leak as well as the damage it had caused to his internal wall. The landlord said he would need to make an insurance claim for the internal damage and would attend again to resolve the leak but did not follow up with an appointment.
  4. The resident made a stage 1 complaint on 25 March 2022. He said the landlord had attended several times in the previous 2 years to try and resolve the leak but it remained an issue and the landlord had not given him the outcome of a previous visit, despite his chasing. He stated that the previous fixes were not effective as the leak persisted with heavy rainfall. His bedroom walls were damaged and he could not repair them until the leak was permanently fixed.
  5. The landlord responded on 28 April 2022. It said that it was satisfied that it had responded to all the resident’s emails and that it would attend that same day to investigate and resolve the leak. It also told the resident that it was the council’s responsibility to carry out repairs and maintenance to the structure and shared parts of the building, rather than the landlord’s. The response said that if the resident remained dissatisfied he could escalate the complaint to an independent adjudicator to consider at stage 2 of the complaints procedure.
  6. The resident escalated the complaint to stage 2 on 15 June 2022 saying that despite reporting the issue for 2.5 years, the leak had still not been resolved and his bedroom wall was now damaged and peeling. He expressed that no solution had been offered.
  7. The independent adjudicator responded on 20 June 2022. The response advised that the landlord’s leaseholder handbook says that residents should make a buildings insurance claim in the first instance if they have been impacted by a roof leak, and sets out how the landlord would be held accountable if it was found to have been negligent. It also said that the resident could seek legal advice about applying for a court order to compel the landlord to resolve the leak within a set timeframe.
  8. The resident made a new stage 1 complaint in September 2023 as the issue remained outstanding and the landlord responded in October 2023. The resident told us that the landlord attended around 6 weeks ago and repaired the leak. As a resolution to the complaint, he would like the landlord to provide surveyor’s reports showing the findings of inspections and outcomes of work for his records. He would also like the landlord to pay compensation for the delays, the time and trouble he has spent trying to resolve the issue and the effect on his wellbeing.

Assessment and findings

Scope of investigation

  1. Paragraph 42.c. of the Scheme states that the Ombudsman may not consider complaints which were not brought to the landlord’s attention as a formal complaint within a reasonable period, which would normally be within 12 months of the matters arising. This is because residents are expected to raise complaints with their landlords in a timely manner so that the landlord has a reasonable opportunity to consider the issues whilst they are still ‘live’ and while sufficient evidence is available for it to reach an informed conclusion. It is more difficult for landlords to investigate less recent matters as, over time, records are less likely to be available, witness statements and testimonies become less reliable, and it becomes more difficult to verify accounts.
  2. The resident told us that he first reported the leak in March 2020 and had been trying to get it resolved since then. Considering paragraph 42.c. as well as the availability and reliability of evidence, this investigation is only able to consider events from 25 March 2021 which was 12 months prior to the resident’s stage 1 complaint. Any mention of events before that date is for context only.
  3. Paragraph 42.a. of the Scheme states that the Ombudsman may not consider complaints which are made prior to having exhausted a member’s complaints procedure unless there is evidence of a complaint-handling failure. This means that our investigations can only consider events up until the landlord’s final response under its complaints procedure. This can include events related to any follow-up actions the landlord has promised and we will also consider whether the issues complained about have been resolved at the time of our determination.
  4. The resident continued to experience issues getting the leak resolved following the stage 2 response. In accordance with paragraph 42.a. this investigation is not able to consider these issues. The resident has made a new stage 1 complaint and can follow the landlord’s complaints procedure again. If he remains dissatisfied with its final response he can escalate that complaint to the Ombudsman.

The landlord’s handling of the resident’s reports of a leak

  1. For context, this Service notes that the resident first reported a leak in March 2020 which is confirmed by a letter the landlord sent to his MP. In May 2021 the resident reported the leak again. The landlord told the MP it attended in July and October 2021 to trace and remedy the leak. It said it carried out repairs to the tiles, flashing and lead and cleaned and resealed the windows. The Ombudsman asked the landlord to provide all repair records related to the leak but none of these reports or visits were evidenced by repair logs or reports.
  2. The Ombudsman expects landlords to maintain comprehensive records of all contact with residents, repair requests and services provided. This should include details of all appointments, any pre- and post-inspections, surveyors’ reports, work carried out and completion dates. This is because clear, accurate, and easily accessible records provide an audit trail and enhance landlords’ ability to identify and respond to problems when they arise. The lack of comprehensive record-keeping in this case was inappropriate.
  3. The landlord’s repairs policy states that it will respond to routine repairs within 20 working days. Without knowing the exact date in May 2021 that the resident reported the leak we cannot calculate exactly how long it took the landlord to respond. However, the landlord did not attend until July 2021 which was longer than 20 working days. Clearly, the leak was not fully resolved at that visit yet it took the landlord a similar timeframe to attend again for follow-up works in October 2021. The landlord did not follow its repair policy at this time, which was inappropriate.
  4. The resident contacted the landlord on 14 December 2021 to ask for the outcome of the last visit. He said the operative had gone up on scaffolding to investigate but had not told him whether they had fixed the leak or not. The Ombudsman expects landlords to share the outcomes of inspections and repairs with residents. Our October 2021 Spotlight report on damp and mould, ‘It’s not lifestyle’ (the Spotlight report), explains that it is important for the landlord to clearly communicate its diagnosis with the resident, to ensure the resident has confidence in it and understands the next steps. The landlord failed to do this throughout this case.
  5. The resident chased the landlord for a response on 3 February 2022. The scaffolding was still in place but he had had no further contact from either the landlord or the contractor. He also raised the fact that the leaking water was damaging his bedroom wall. The landlord responded and asked the resident what times he was available so it could attend again, recognising that the leak and still not been addressed. There are no records to indicate that it took any action at all following its visit in October 2021. This was inappropriate. It had been 4 months since the last visit, the resident had been chasing and the leak was causing damage to the inside of his property. The landlord should have been proactive and arranged follow on works unprompted after it failed to resolve the leak in October 2021.
  6. In addition, the Ombudsman’s call for evidence for the Spotlight report found that leaks were the second most common cause of damp and mould. Our report made a number of recommendations to landlords on how to manage damp and mould, including that landlords should adopt a zero-tolerance approach to damp and mould interventions. While the resident had not reported damp and mould at that time, the landlord should have been aware that the leak could eventually cause that to happen and ensured early intervention to prevent it.
  7. The landlord also told the resident he would need to make an insurance claim for the internal damage. This was appropriate advice.
  8. The resident gave his availability but the landlord did not respond. He chased the landlord again on 23 February 2022 and it still did not reply. The resident had been waiting for an outcome of the October 2021 visit for over 4 months and had been chasing the landlord for over 2 months. The landlord’s complete failure to communicate was likely frustrating for the resident and prompted his subsequent complaint.
  9. The resident made a stage 1 complaint on 25 March 2022 about the leak and some unrelated communal repair issues. The landlord responded on 28 April 2022. The response said the landlord was attending that same day to resolve the leak however it did not provide any explanation for why it had taken so long to resolve.
  10. The Ombudsman’s Complaint Handling Code (the Code) states that landlords must address all points raised in the complaint. The landlord made no attempt to address the resident’s points about the length of time the leak had been present and the number of times the landlord had attempted to repair it. From the response, it seems that the landlord did not investigate the matter fully and that it merely booked an appointment. This was not appropriate and made the landlord appear dismissive of the matter. It also meant the landlord did not determine why the matter had not previously been progressed.
  11. The response also said that the landlord had told the resident in 2020 that it was the council’s responsibility to carry out day-to-day repairs and maintenance to the structure and shared parts of the building, rather than the landlord’s. It is unclear why the landlord said this and whether it was in relation to the leak, the communal repairs, or both. Ultimately, while the freeholder is responsible for the structural and communal repairs, it was for the landlord to pursue and arrange this. The resident would not have been expected to report repairs to the freeholder directly if the landlord held management responsibility for the property.
  12. The response also said that the homeownership team had responded to all the resident’s queries and asked him to provide email proof that they had not. It is unclear if this was in reference to the resident’s emails about the communal repairs, the leak, or both. Either way, it was inappropriate for the landlord to ask the resident to prove it had not responded. Aside from one-way emails not being conclusive evidence, the onus should have been on the landlord to prove it had responded, rather than the resident to prove it had not.
  13. The visit to resolve the leak that should have taken place on 28 April 2022 was not recorded in the evidence the landlord provided us. This is another instance of poor record keeping.
  14. The resident responded and asked the landlord to clarify the point about the repairs being the council’s responsibility but it did not reply. This was another instance of poor communication which is especially concerning since it happened immediately after a formal complaint about communication. The landlord did not demonstrate that it had learned any lessons from the complaint and the resident was understandably frustrated by this. He escalated the complaint to stage 2 on 15 June 2022 saying the leak was still an issue despite the landlord attempting to fix it several times, his bedroom wall was damaged and peeling, and that the landlord never followed up with him or offered any solutions.
  15. The independent adjudicator sent its stage 2 response on 20 June 2022. The response said that the resident could seek legal advice about applying for a court order to compel the landlord to fix the leak. While this was reasonable advice, the response did not show any willingness to try and resolve the issue. It gave no indication if and when the landlord would follow up with the resident to actually resolve the leak. It should have detailed what solutions the landlord could provide rather than placing the onus on the resident to force it to take action. This meant the resident was no further forward in getting the problem resolved which led him to escalate the complaint to the Ombudsman.
  16. The resident told us that the landlord attended approximately 6 weeks ago and repaired the leak. This may have been prompted by the resident’s further complaint. He is now waiting for heavy rainfall to be able to confirm that the matter has been resolved. He is aware that he needs to pursue his claim for internal damage via the insurer and the landlord has provided him with the necessary details.
  17. There was maladministration in this case due to the unreasonable delays in fixing the leak and the landlord’s poor communication. Considering the period this investigation is focused on, the landlord took over 3 years to resolve the leak, starting from the resident’s report in May 2021.
  18. The Ombudsman recognises that complicated repairs cannot always be resolved on the first visit, but the landlord did not afford the case the appropriate priority and failed to be proactive in arranging follow-up inspections and works. Although it did try to resolve the leak several times there were long delays in between visits and a total lack of communication with the resident about the diagnosis, what the landlord was going to do about it and when.  While the initial issue was not necessarily caused by the landlord’s actions or inaction, its failure to put an appropriate fix in place over a significant period of time would have worsened the structural interior of the resident’s home.
  19. The resident spent time and trouble chasing the landlord and progressing his complaint. He has also had to deal with water leaking into his bedroom whenever it rained heavily which caused distress and inconvenience. It also caused him to worry about his health when the wall became damp and generally affected his wellbeing. To reflect this, and considering the length of the delay, the landlord should pay him £1000 compensation. This is in line with the Ombudsman’s remedies guidance which recommends compensation up to this amount for maladministration which has a significant impact on the resident.

Review of policies and practice

  1. In this investigation, failures have been identified in the landlord’s handling of its repairs and record keeping which are similar to those identified in case 202124577. We have not, however, made any further orders for the landlord to improve this. This is because a wider order was made as part of case 202124577 which the landlord has now complied with. We expect the landlord to take forward the lessons and improvements it shared with this Service following the wider order and will monitor the progress of this. Additionally, the Ombudsman is currently undertaking a special investigation into the landlord. This is conducted under paragraph 49 of the Scheme and allows the Ombudsman to investigate beyond an individual complaint to establish whether there is evidence of systemic failings. The findings of this report will therefore contribute to the outcome and action needed following the completion of the investigation

Complaint handling

  1. The landlord’s complaints policy at the time included timescales that exceeded those in the Code due to the pressures of the COVID-19 pandemic.  This was reasonable in the circumstances and amending the policy so residents would be aware was appropriate action. The policy included 3 stages. Stage 1 and stage 2 complaints were handled by the landlord and stage 3 complaints were handled by an external independent adjudicator.
  2. The policy stated that the landlord will acknowledge all complaints within 2 working days. The response times for each stage were:
    1. 20 working days for stage 1 complaints.
    2. 25 working days for stage 2 complaints.
    3. 35 working days for stage 3 complaints.
  3. The resident made a stage 1 complaint on 25 March 2022 which the landlord did not acknowledge until 11 April 2022, 11 working days after it was logged. As there was subsequently no complaint response, the resident chased the landlord on 27 April 2024. It then responded on 28 April 2022.While the response was only 3 days overdue, given that the resident was already frustrated by the landlord’s poor communication, it would have added to his dissatisfaction and distrust that the landlord was taking the issue seriously.
  4. It also failed to address all points in the complaint. The resident had complained that he had been living with the leak for 2 years and that despite attending several times, the landlord had not managed to permanently resolve it. He also said that the landlord had not given him the outcome of the visit on 5 October 2021. The landlord’s response failed to address any of these points which would have caused the resident to further distrust the landlord’s commitment and ability to resolve the issue.
  5. The stage 1 response advised the resident that he could escalate his complaint to the independent adjudicator at stage 2, which he did on 15 June 2022. The landlord failed to follow its complaints policy which stated that the stage 2 review would be carried out by the landlord before being reviewed by the independent adjudicator at stage 3.
  6. The Code at the time did not recommend that landlords operate a 3 stage complaints procedure and encouraged landlords to stick to 2 stages unless absolutely necessary. That said, the landlord should still have followed the policy it had in place at the time as this is process that the resident would have expected.
  7. The Code states that a complaint should be resolved at the earliest possible opportunity, having assessed what evidence is needed to fully consider the issues, what outcome would resolve the matter for the resident and whether there are any urgent actions required. As mentioned in paragraph 29, although the leak remained unresolved at the time, the stage 2 response did not offer the resident any solutions. This was a failure to uphold the principles of the Code and prolonged the issue even further.
  8. This amounts to maladministration. The landlord should pay the resident £100 compensation which is in line with the Ombudsman’s remedies guidance for complaint handling failures.

Determination

  1. In accordance with paragraph 52 of the Scheme:
    1. There was maladministration in relation to the landlord’s handling of the resident’s reports of a leak.
    2. There was maladministration in relation to the landlord’s complaint handling.

Orders

  1. Within 4 weeks of the date of this report the landlord is ordered to:
    1. Apologise to the resident in writing for the failures in relation to the leak. The apology should come from a senior member of staff.
    2. Pay the resident £1100 compensation broken down as follows:
      1. £1000 for the failures in relation to the leak.
      2. £100 for the complaint handling failures.
    3. Provide the resident with a report confirming the diagnosis and the work that was done to resolve the leak.
  2. The landlord must provide the Ombudsman with evidence it has complied with these orders within 4 weeks of the date of this report.