Lewisham Council (202227774)

REPORT

COMPLAINT 202227774

Lewisham Council

24 April 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

The complaint is about the landlord’s:
1. handling of a flood from a neighbouring property;
2. response to the resident’s reports of antisocial behaviour (ASB).
The Ombudsman has also considered the landlord’s complaint handling.

Background and summary of events

Background

The resident has been a leaseholder of the landlord since 1990. Her property (‘Property A’) is a 2-bedroom ground-floor flat in a purpose-built block. The resident does not reside in the property but lets it to her tenant (‘Tenant A’).
The events of this investigation involve the flat above the resident’s property (‘Property B’). The occupant of Property B is a tenant of the landlord and is referred to in this report as ‘Tenant B’.
The lease sets out the covenants of the lessor (the landlord) and lessee (the resident). The lessor covenants that the lessee “shall peaceably hold and enjoy the demised premises”, ie the property, subject to the lessee paying rent and fulfilling their obligations. The lessor also covenants to require every person to whom it grants a lease to fulfil similar obligations. Under the fifth schedule of the lease, which refers to rights and easements in favour of the lessee, the lessee is entitled to “the right of support and shelter as far as may be necessary to the demised premises as the same is at present enjoyed from the adjoining flat/maisonette or flats/maisonettes and any part of the building or the estate which may be respectively below or beside or above the demised premises and the right to the protection afforded to the demised premises by the roof of the building”. The lessor must insure the premises against damage from perils such as fire and flood.
The lessee’s covenants include “to keep in good and substantial repair and condition … all cisterns, tanks, sewers, drains, gutters, pipes, wires, cables, ducts, shafts, conduits and any other things installed for the purpose of supplying hot water, central heating … or for the purpose of draining away water”. They also include allowing the lessor access at reasonable times and with prior written notice (except in case of emergency). The lessee is required “to take all reasonable and proper action to prevent the overflow of any of the water pipes or cisterns of the demised premises, and in the event of such happening immediately to rectify and make good all damage and injury thereby caused”. They are additionally required “not to permit or suffer to be done any act or thing which may be or become a nuisance or inconvenience to the lessor or any other lessee or occupier”.
The landlord’s repairs policy states that, where the landlord has a repair responsibility, it will log and order reported works promptly. When working on an individual property it will provide an appointment, although there may be exceptions to this for emergency access. Target repair timeframes range from 24 hours (for emergency repairs such as flooding) to 20 working days (for routine repairs). According to the repairs policy, tenants of the landlord must keep their home in good condition and take reasonable steps to prevent damage. They must also give the landlord and its agents reasonable access to inspect or carry out work. Tenants are required to report repairs and defects promptly. They are responsible for any replacements or repairs necessary due to damage caused by themselves, whether the damage was caused deliberately or by negligence; tenants may be required to pay for damage caused to another property by their own conduct, appliances, or equipment. Leaseholders are expected to have adequate contents and buildings insurance and the landlord will not generally compensate them for losses, unless these are the direct result of its negligence.
The landlord’s ASB policy adopts the definition of ASB used by the ASB, Crime & Policing Act 2014: either “conduct that has caused, or is likely to cause, harassment, alarm or distress to any person”, “conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises”, or “conduct capable of causing housing-related nuisance or annoyance to any person”. The policy divides ASB into 2 categories. The landlord will respond to reports of ‘Category A’ ASB within 24 hours, and to ‘Category B’ reports within 3 working days. A table containing examples of each category does not include damage to property, although the list is not exhaustive. The policy notes that other issues which may constitute a breach of tenancy or lease (such as overgrown gardens) are dealt with separately, and not as ASB.
The landlord operates a 3-stage complaints process. It will acknowledge complaints and stage 2 escalation requests within 5 working days. It then aims to respond within 10 working days at stage 1 and 20 working days at stage 2. If it is unable to respond within these timeframes, it will let the complainant know the reason for the delay and provide a revised response date. At stage 3, an independent adjudicator will acknowledge an escalation request within 2 working days and issue a final decision within 20 working days.
The landlord’s compensation, reimbursements and remedies procedure states that the landlord may award 4 types of financial compensation where service failure has occurred. These are: goodwill payments (where the landlord agrees a mistake has been made and is trying to prevent a complaint); discretionary payments (where there is no legal obligation for the landlord to make a payment, but it does so in order to restore the person to the position they were in before the issue occurred); payments for time and trouble, ranging from £10 to £50; and payments for inconvenience and distress, up to £1,000. The procedure notes that, where a case is more complex and a resident is making a medical claim, it is usually more appropriate to direct them to the landlord’s legal services or insurance team. The procedure does not cover provisions for compensation or reimbursement where loss or damage is due to acts or negligence by a third party, including other residents.
The Ombudsman has also inspected the landlord’s secure tenancy agreement (available on its website).

Summary of events

Between December 2017 and June 2022, the resident made 5 claims to the landlord and/or its insurers in relation to water penetration from Property B. The causes of the water penetration were documented to be leaks from the boiler, a disconnected waste pipe from the bathroom sink and a blocked stack causing the toilet to upsurge, and a possible corroded pipe. Of the 5 claims, 1 (made in November 2020) was repudiated and 4 were settled. The landlord’s records note that some claims incorporated multiple incidents which were dealt with together to reduce administration costs. They also note that 3 incidents were dealt with by the resident’s own insurers, and 3 other incidents of water penetration did not result in a claim.
On the date of the last insurance claim, 5 June 2022 (a Sunday), the resident called the landlord’s out-of-hours contact centre to report a leak from Property B. She was advised to contact the fire brigade, which attended and shut down the electrics to prevent risk of fire from the falling water. The resident then contacted the landlord’s repair team on 6 June 2022, and the leak was subsequently stopped. The resident noted that Tenant B initially refused access to their property for repairs.
On 24 June 2022, the resident complained to the landlord using its online enquiry form. In her complaint she stated that:
1. She had complained about damage to her property caused by a flood from Property B on 14 June 2022, and had received no acknowledgement or response.
2. She had also made a complaint about ASB, and although this was acknowledged, she had not yet spoken to anyone about it.
3. She would like her complaint to be escalated. She asked for someone to be allocated to speak to her with a view to resolving the issue of continuous flooding from Property B and a lack of repairs by the landlord, despite its previous commitment.
The landlord acknowledged the resident’s complaint on 5 July 2022. It apologised for its delay in doing so, explaining that this was due to “a backlog caused by staff absence”. It said it was unable to locate a previous complaint, but confirmed that it had now logged a complaint at stage 1. Its repair team would investigate this and respond by 19 July 2022. It asked the resident to let it know if this did not happen.
The landlord then issued its stage 1 response on 20 July 2022. This stated that:
1. It was sorry to hear that the resident was experiencing a leak from above.
2. To investigate her complaint, it had checked its repair records and liaised with its housing management and heating teams.
3. The resident had advised that her neighbour above had flooded her property 6 times in the past year. She said the neighbour refused to report the leak to its repair team and refused to give access when staff attended.
4. It had contacted her on 8 July 2022 to discuss her reports of ASB.
5. Following the leak on 5 and 6 June 2022, it had also attempted to speak to Tenant B on 11 July 2022 but was unable to get through. It left a voicemail.
6. It would request confirmation from its repair team regarding how many attempts had been made to gain access to Property B and whether the leaks were considered to be caused “out of negligence or malice”. If there was evidence to support malicious intent, it would issue a written warning to Tenant B. It would update the resident regarding this by 27 July 2022.
7. Its records showed that operatives had attended Property B over the past year, and on each occasion had gained access to resolve a plumbing issue. Its most recent attendance was on 6 June 2022.
8. It was keen to resolve the matter, and following receipt of the resident’s complaint, it had arranged a joint inspection with its gas safe contractors on 26 July 2022. During the inspection, it aimed to trace and remedy any further leaks affecting the resident’s property.
9. Its technical officer would also be on site on the date of its response (20 July 2022) to see if they could identify any source of leaks without the need for a joint inspection. They would report back on their findings and advise on any further repairs required or recommended.
10. It had already apologised for its delay in acknowledging the resident’s complaint. It apologised again for any delays and failures in service, and for its delay in providing its stage 1 response. It appreciated the inconvenience and distress the issues had caused.
The following day (21 July 2022), the resident requested to escalate her complaint. She said that:
1. She did not feel the stage 1 response was sufficient and would like her complaint to be investigated further.
2. The landlord had stated it would obtain confirmation regarding how many attempts were made to gain access to Property B and whether the leaks were caused out of negligence. However, it already had evidence that access was prevented on 5 and 6 June 2022. She felt the landlord would be able to verify that its repair team was ignored by Tenant B until the fire brigade arrived.
3. The stage 1 response also overlooked occasions in November 2020, January 2021 and April 2021 when Tenant B ignored calls from the landlord to arrange access, and refused access when plumbers attended.
4. The landlord’s insurers had previously written to her advising that Tenant B had refused access. They also suggested that she raise the issue with the landlord’s ASB team, which she did at the time. On this basis, she believed Tenant B should already have been given a warning, and the recent incident should have moved the matter to the next stage. She felt there was evidence that Tenant B had breached their tenancy agreement several times.
5. She was also unhappy with the landlord’s repairs service. Its head of service had promised on several occasions to call her back to arrange a visit, but went on leave for a week “with no notification or update”. Despite their commitment of ownership of the problem, they had done nothing. She had had to continually call and chase them. She had heard nothing since 11 July 2022 when she last called, and the officer promised a call back which they did not fulfil. She now wished the matter to be escalated to their senior.
6. The landlord’s technical officer had been very responsive and called to advise of a site visit on 20 July 2022. They were unable to attend themselves, but the gas contractor attended. They inspected Properties A and B and found a pool of water in the bathroom of Property B, which they suspected was being caused by the toilet. She questioned why Tenant B did not report this. The gas contractor asked Tenant B to report the issue, but she doubted they had.
7. The issues were ongoing with no prospect of resolution. She asked for a new point of contact with sufficient authority, who would do as they promised, and for Tenant B to be issued with a warning.
On 29 July 2022, the landlord sent the resident a letter from its stage 1 responder titled “stage 1 complaint response follow on”. This stated:
1. It thanked the resident for her “further complaint following [its] stage 1 response”, and appreciated her giving it the opportunity to look into the matter for a second time.
2. Its repair records confirmed that each time a leak from Property B had been reported as affecting Property A, there had been a fault that required repair. There was no evidence to support the resident’s belief that the leaks had been caused due to negligence.
3. It had looked at the repairs history and in general, on occasions where no access was granted, these were emergency repairs not reported by Tenant B. It had gained access to carry out repairs when it had been able to notify Tenant B in advance of its attendance. This was its usual and preferred way of carrying out repairs, which prevented aborted appointments due to a lack of access.
4. It could not support the resident’s allegation that leaks from above had been caused deliberately or through negligence. It also could not support her belief that Tenant B had purposefully ignored calls for access. For this reason, it would not be able to serve any warning or notice or breach of tenancy, as there was no evidence to support this action.
5. It was sorry the resident was not kept updated by its head of service. At the resident’s request, this matter had been escalated to its director of repairs to address directly.
6. Its contractor attended Property B on 27 July 2022 and remedied a small leak. No other issues were identified.
On 3 August 2022 the landlord replied to the resident’s email of 21 July 2022 and asked if she still wished to escalate her complaint following its follow-up response on 29 July 2022. The resident confirmed on 4 August 2022 that she still wanted her complaint to be escalated. She said that the stage 1 responder had “neglected to obtain the full facts” and that their response contradicted what she had previously been told by the landlord and its repair team.
On 8 August 2022 the landlord acknowledged the escalated complaint and said its repair team would contact the resident by 6 September 2022. It then spoke to her on the phone on 14 September 2022. It went on to issue its stage 2 response (dated 14 September 2022) on 15 September 2022, stating that:
1. It was sorry the resident felt her complaint was not resolved at stage 1, and appreciated her giving it another opportunity to put things right.
2. To investigate the escalated complaint, it had spoken with its housing management and repair team as well as its head of service.
3. Its records indicated that Tenant B did not refuse it access on any occasion.
4. There was a joint appointment for a plumber and gas contractor to attend on 26 July 2022. At this time, it was advised that an appointment had been booked for the following day to rectify an issue with a leaking toilet. Its plumber attended on 27 July 2022 and rectified the issue.
5. On the 1 occasion it recorded no access, this was an emergency job not raised by Tenant B. Tenant B was therefore unaware of the appointment, but they did not refuse access.
6. There was no evidence to support the resident’s claim that leaks affecting her home were caused due to negligence. Due to this, it would not be able to serve any warning letters or notice for breach of tenancy.
7. The resident’s concerns about its head of service’s communication were passed on to its director of repairs, as stated at stage 1. During its conversation with the resident on 14 September 2022, she said the head of service should still have called her. It had addressed this with the head of service and they sincerely apologised for not responding to her. The head of service tried to call the resident 3 times on 14 September 2022 to apologise personally, but was unable to get through. They left a voicemail.
8. It reiterated its apology for its delays in responding to her queries, and thanked her for her patience. As a result of her complaint, it had been better able to understand the need to communicate clearly with its residents.
The resident contacted the landlord in reply to its stage 2 response on 20 September 2022. She said that date references and details contained within the response were incorrect. She therefore told the landlord that she considered her complaint “unresolved and open”, and asked the landlord to advise of the next escalation stage. She noted that despite the landlord’s assurances that all plumbing and fixtures in Property B had been checked and repaired, she experienced another incident of flooding on 17 September 2022 which was not reported by Tenant B. She had therefore reported it herself.
On 21 September 2022, the landlord confirmed that it had received a report of a leak from the washing machine valve in Property B which caused water ingress to Property A. It also asked the resident to advise whether there was anything more it could do to resolve her complaint before proceeding to stage 3. It advised that, at stage 3, complaints were reviewed by an independent adjudicator, and the resident could begin the process within 6 months of its stage 2 response. It provided contact details for the independent adjudicator.
On 26 October 2022 and 24 November 2022, the resident made further insurance claims regarding water penetration from Property B. These were attributed either to the bathing habits of Tenant B, or to an outlet pipe to a washing machine that was not plumbed in. The landlord treated the 2 incidents as a single claim and initially repudiated it, on the basis that it was not responsible for Tenant B’s behaviour. However, it later settled the claim, as “despite 2 full plumbing checks there was a leak from the boiler, so claim was paid as we could not tell which incident caused the damage to [Property A]”.
While the Ombudsman has not had the opportunity to inspect any further escalation request, it is assumed that the resident confirmed she wanted her complaint to be escalated to the independent adjudicator, as they issued a stage 3 response on 29 November 2022 (re-sent on 5 December 2022). This stated that:
1. It was sorry it had not met the usual timescale for stage 3 adjudication.
2. In reaching its view it had taken account of the information available on the resident’s complaint file. It had also spoken to the landlord’s ASB team.
3. There was not a great deal it could add to the stage 2 response. It accepted that this did not refer to incidents in 2020 and 2021, which the resident mentioned in her escalation request. However, the last of those incidents was in April 2021, over a year before the resident’s complaint about a leak in June 2022. Therefore, too much time had passed for the landlord to take these incidents into account now.
4. The ASB team did not itself investigate all reports of ASB made to it. Often, it passed a case to the relevant housing officer. The landlord told the resident in its stage 1 response that it had passed her ASB report to her housing officer to consider. The outcome of this was expressed in the stage 2 response: that there was no evidence to support the service of warning letters to Tenant B. Action in respect of ASB was not possible without evidence, so the adjudicator could not criticise this outcome.
5. If the resident believed the landlord had failed to comply with the terms of the lease by not protecting her property from leaks, it advised her to seek legal advice on this. It believed the courts were best placed to test the resident’s lawful rights and deal with the complicated question of liability.
6. Overall, it did not uphold the complaint. It found that the landlord dealt appropriately with the resident’s report of ASB, and it would be reasonable for her to follow a legal route to enforce the terms of her lease.

Post complaint

On 17 February 2023 the landlord arranged for a specialist water quality contractor to attend Property A and Property B and investigate any leaks. No current leak was found, but the cold water supply to the washing machine in Property B was found to be installed incorrectly. The contractor documented that this may cause intermittent leaks affecting Property A. It recommended renewal of mastic sealant.
On 11 March 2023 the resident wrote to the landlord’s chief executive. She said that over the past 2 years she had suffered more than 10 incidents of water ingress, some so severe that they had resulted in a collapsed ceiling. Others had affected the electrics in her property and caused a safety issue. She noted that the incidents had resulted in damp to every room of her property. She said that, during this period, she had contacted “just about every department” to try to resolve the flooding issue. While the landlord had visited Property B numerous times to address the source of the leaks – which had previously been “old irreparable plumbing” or a faulty boiler – she now understood Tenant B was believed to be flooding Property B, either intentionally or carelessly. She felt the landlord did not want to take ownership of the problem and had suggested no action needed to be taken against Tenant B. She disagreed with this. She also said the landlord’s insurers had declined reimbursement of her repair costs on the basis that no further repairs had been identified and that nothing could be done if the behaviour was intentional.
On 16 March 2023 the landlord replied that the resident’s complaint had exhausted its complaints process, and advised that the next step would be a referral to this Service. The resident referred her complaint to the Ombudsman the same day.
On 13 April 2023 the landlord attended a report of a leak affecting the resident’s property. It traced the fault to the expansion vessel and pressure relief valve (PRV), and ordered the necessary replacement parts. It then returned and replaced the parts on 18 April 2023.
On 19 May 2023 the landlord discussed the resident’s case internally. It reviewed a list of visits provided by its heating contractor. This contained details of attendances in 2021 and 2023, but none in 2022. It noted that “there are no leaks present at the moment that we are aware of”.
On 28 May 2023, the resident made an insurance claim following an incident of water penetration apparently resulting from Tenant B allowing their bath to overflow. This was repudiated on the basis that the landlord was not responsible for the tenant’s behaviour. However, at the time the landlord provided records to this Service (in November 2023), an aspect of the claim relating to the boiler remained open.
An update sent by the resident to this Service on 30 May 2023 stated that her property had been flooded over 7 times in the past year, with the fire brigade and police intervening on the 4 most recent occasions and finding “huge amounts of water” on the bathroom and hallway floors in Property B. The police had told her if the issue continued she may have a case for criminal damage. However, she said the landlord had not taken any action, despite her property being “damp and saturated with water”. She therefore faced continuous costs associated with drying out the property and continually redecorating.
On 24 July 2023, the resident further advised that Tenant A had suffered health issues as a result of the damp conditions in Property A. She said she felt the landlord had been dismissive and complacent towards the issues in her property. By way of resolution, she wanted the landlord to monitor Tenant B’s behaviour, make them aware of the damage being caused to Property A, and issue a warning. She also wanted it to provide assurance that the boiler and all plumbing in Property A had been repaired or replaced, and that any membrane or flooring between the properties had been secured so that she did not experience further leaks.
On 23 August 2023 the resident made an insurance claim following an incident of water penetration caused by a faulty stopcock in Property B. This was settled by the landlord.
On 2 November 2023 there was a further incident of water penetration from Property B into Property A. The landlord made 3 visits to Property B in early November 2023, but was unable to gain access and each job was abandoned. Its internal correspondence on 12 December 2023 noted that vulnerability may be a factor, and it visited Tenant B in connection with this on 14 December 2023. On 12 February 2024 the resident made a further insurance claim relating to the damage caused. The landlord advised in April 2024 that it had asked its repairs team not to close off the job, but that it was unsure whether any further investigation was being carried out into the cause. It told this Service “it seems clear that [Tenant B] is not reporting problems and is not cooperating with repairs”. It said it had sent letters on 22 December 2023 and 20 March 2024, visited on 11 January 2024 (with no access given), and would chase the matter further on 15 April 2024.

Assessment and findings

Flood from neighbouring property

It is important to note at the outset that, while the Ombudsman appreciates that the resident has reported water penetration from Property B since at least 2017 (with the source of water penetration previously reported in 2006 not being confirmed), the focus of this investigation is on the issues reported by the resident in June 2022. This aligns with the period addressed by the landlord in its complaint responses, which in turn is in line with its complaints policy. However, the background and full circumstances of the case – including more recent developments – have been taken into account.
When the resident reported flooding on 5 and 6 June 2022, the landlord acted appropriately by signposting her to relevant emergency services and attending within 24 hours. Its stage 1 complaint response confirmed that the necessary repair was completed on 6 June 2022. This was a satisfactory response.
Following receipt of the resident’s complaint, the landlord took the further proactive steps of arranging a visit by its technical officer on 20 July 2022 and an inspection on 26 July 2022. Following this, it carried out a pre-arranged leak repair on 27 July 2022. The visits on 20 and 26 July 2022 demonstrated a solution-focused approach and concerted effort to address the root cause of the recurring leak issue.
The importance of effective communication between landlords and residents cannot be understated, and the Ombudsman appreciates that missed callbacks by the landlord’s head of service would have been frustrating and distressing for the resident. However, in the Ombudsman’s opinion, the actions taken by the landlord in response to this aspect of the resident’s complaint constituted sufficient redress. It correctly acknowledged its failure, apologised, escalated the issue to the relevant officer’s manager at the resident’s request, and arranged for the officer in question to apologise personally. These actions showed an understanding of the impact on the resident and a genuine desire to make amends.
Further reports of water penetration made by the resident between September 2022 and November 2023 postdate the focal period of this investigation, as the landlord did not have the opportunity to address them within its complaints procedure. It is noted that the landlord took action in response to each report, both through carrying out investigations and repairs and through the insurance claim process. Therefore, no failure has been found in relation to these events.
An overall finding of no maladministration has been made in relation to the landlord’s handling of a flood from Property B. This is because, while the impact of repeated water penetration on the resident and Tenant A is not underestimated, the landlord acted in accordance with its responsibilities and took reasonable steps both to address reported leaks and to identify any wider or underlying causes. It is unfortunate that the action it took in July 2022 did not prevent further leaks from occurring; however, this is not considered to be something it could reasonably have foreseen at the time. In February 2023, it carried out appropriate investigation of the ongoing issue by arranging an inspection by a specialist. When new information became available from November 2023 onwards, there is evidence that the landlord acted on this and has continued to work to resolve the issue. The recommendation that has been made is intended to support this work.

ASB reports

By way of context, the Ombudsman notes that the landlord previously investigated a report of ASB involving the resident’s former tenant in 2017. This resulted in the resident being contacted in June and August 2017, and in warnings being issued to the (then) tenant of Property A in June and July 2017. In total, the landlord attempted to contact the resident and/or her tenant on at least 7 occasions in connection with the reported issues. While these events fall outside the scope of the current investigation, it is appreciated that the resident may have drawn comparisons between the landlord’s handling of the ASB reports it received in 2017 and its handling of her ASB reports in 2022-23. In assessing the landlord’s response to reports of ASB by Tenant B, the Ombudsman has considered its adherence to this Service’s dispute resolution principles: be fair, put things right, and learn from outcomes.
According to the resident, the landlord’s insurer initially advised her to report Tenant B’s behaviour to the landlord as ASB. This Service has not had sight of any documentary evidence confirming this. However, the insurer’s advice does not appear to be disputed by the landlord. It was also appropriate for the insurer to recommend that the option of dealing with suspected intentional flooding as ASB was explored. The recommendation did not constitute confirmation that the reported behaviour met the landlord’s definition of ASB.
It appears that the landlord acknowledged a report of ASB that the resident made on or around 14 June 2022, but did not otherwise progress its ASB investigation until after she complained on 24 June 2022. The information provided indicates that the landlord did not contact the resident to discuss her ASB report until 8 July 2022. This was 10 working days after she complained and up to 18 working days after she first reported the issue. Its delay therefore exceeded the maximum response timeframe of 3 working days set out in the landlord’s ASB policy, which was unsatisfactory. It is also unclear what action the landlord would have taken, if any, if the resident had not complained. If it decided on its initial review of the report that Tenant B’s alleged behaviour did not constitute ASB, it should have informed the resident of this at the earliest opportunity. Its failure to do so created unrealistic expectations regarding the likely outcome of its investigation.
Having spoken to the resident on 8 July 2022, it was appropriate for the landlord to attempt to speak to Tenant B on 11 July 2022 and to inform the resident of this in its stage 1 response on 20 July 2022. The aim of this contact was presumably to make Tenant B aware of the allegation against them and obtain their version of events. Since the landlord was unable to speak to Tenant B on 11 July 2022, it would have been reasonable for it to make further attempts to contact them and/or to send the relevant information in writing. This need not have taken the form of a warning, but simply an information or advice letter. This was in line with the landlord’s ASB policy and formed part of the resolution later sought by the resident, but there is no evidence that the landlord took further steps to inform Tenant B of the allegations (or, if it did, that it told the resident it had done so). This was an inadequate response, which may understandably have led the resident to conclude that the landlord was less proactive in its investigation of her reports than it had been in investigating reports involving her tenant in 2017. Furthermore, had Tenant B known the impact of water penetration on the resident and her tenant in July 2022, this may have influenced their future actions, whether or not they were intentionally causing flooding.
Separately, it was appropriate for the landlord to liaise with its repair team regarding the number of attempts made to gain access to Property B and whether (in the team’s view) the leaks were intentional. It is unclear why, given the straightforward nature of this action, it was unable to liaise with the repair team prior to issuing its stage 1 response. The landlord then committed to update the resident by 27 July 2022, but there is no evidence within the information provided that it did so. This was again unsatisfactory, and meant that the landlord missed an opportunity to reassure the resident it was taking her concerns seriously.
After consulting its repair records and speaking to relevant staff, it was reasonable for the landlord to conclude that there was insufficient evidence of leaks being caused through negligence or of any deliberate intent on the part of Tenant B. This is not to say definitively that there was no deliberate intent; merely that the landlord responded appropriately, and in accordance with its policies, to the information available. In the Ombudsman’s opinion, it explained its decision making in an acceptably detailed way, highlighting the difference between a ‘no access visit’ (including situations where a tenant cannot be contacted regarding access) and ‘refused access’ (where a tenant is contacted and does not allow access). It is accepted that there is the potential for such terminology to be used inconsistently across organisations, particularly by non-repair staff such as the landlord’s insurance team, which can be confusing.
The landlord also acted in line with its policies in declining to take account of historical events that occurred in 2020 and 2021. However, to add clarity to its response it could also have referred to relevant sections of its ASB and compensation policies. Having reached an evidence-based conclusion, it was appropriate for the landlord to maintain its position (in the absence of any new evidence) and to signpost the resident to alternative processes such as resolution through the courts. The Ombudsman agrees that legal proceedings may be the most appropriate means of assessing any liability.
A finding of maladministration has been made in relation to the landlord’s response to the resident’s ASB reports, as while its eventual conclusion was reasonable based on the available information, it delayed in progressing its ASB investigation. It also did not display sufficient sympathy, take adequate steps to discuss the repeated leaks with Tenant B, offer relevant support (such as in relation to managing damp and mould), or explore alternative solutions such as mediation. The orders that have been made take account of more recent developments since November 2023 and the current situation, reflecting new information not known to the landlord at the time it responded to the resident’s complaint.

Complaint handling

The landlord’s complaint responses were helpfully structured and detailed at all 3 stages. They engaged appropriately with the substance of the complaint and contained the required information regarding whether the complaint was upheld and next steps. However, there were a number of complaint handling failures which have led the Ombudsman to consider the landlord’s complaint handling separately.
Firstly, while the landlord acknowledged and apologised for its complaint handling delays, it did not offer any financial compensation for this service failure. At stage 1, it delayed for 2 working days in acknowledging the complaint and exceeded its anticipated response time by 1 working day (without explanation). It also put the onus on the resident to inform its complaints team if its repair team did not respond in sufficient time, whereas it should have had mechanisms in place to track this internally. At stage 2, the landlord acknowledged the escalation request promptly, but apparently did not contact the resident by 6 September 2022 as it said it would. It then exceeded its anticipated response time by 7 working days (again without explanation), with the date on the response not accurately reflecting the date of issue. It therefore disregarded its policy requirement of informing complainants in advance of any delay and providing a revised response date. At stage 3 it is unclear whether any acknowledgement was sent, and the response was sent at least 50 days after the resident first enquired about escalation. This was excessive. Given that there were delays and communication issues at all 3 stages, the Ombudsman considers that financial redress would have been appropriate in order to put things right.
Secondly, when the resident requested escalation of her complaint on 21 July 2022, the landlord responded with a “stage 1 follow on” response. This amounted to a second complaint response, and meant that the resident received 4 formal responses in total. She was therefore denied access to the 3-stage process set out in the landlord’s complaints policy, and her ability to escalate her complaint to this Service was consequently also delayed. This was unacceptable.
Finally, when the resident said she had made a previous complaint, the landlord missed an opportunity to clarify the difference between a service request (for investigation of ASB or logging of a repair) and a complaint (about the landlord’s handling of ASB or repairs). It also did not confirm which of these the resident had intended to make on 14 June 2022. Though this may seem a minor point, understanding the resident’s intentions would have assisted the landlord in setting realistic expectations, such as in relation to response times. It could also have explained the circumstances in which it will accept complaints – for example, the fact that it will usually only consider events that occurred within the past 6 months.
The above failures have resulted in a finding of service failure.

Determination (decision)

In accordance with paragraph 52 of the Scheme, there was:
1. no maladministration by the landlord in its handling of a flood from a neighbouring property;
2. maladministration by the landlord in its response to the resident’s reports of ASB;
3. service failure by the landlord in its handling of the resident’s complaint.

Reasons

The landlord responded promptly when the resident reported flooding from the flat above in June 2022. It then took further steps to investigate any underlying causes in July 2022. This response was in accordance with its repairs policy. It also took appropriate action to put things right when the resident reported concerns about communication from its head of service.
The landlord delayed in investigating ASB reported by the resident. Its efforts to speak to her neighbour about the flooding issue were limited. While the conclusion reached by the landlord was reasonable based on the information considered, its response was not sufficiently sympathetic, supportive, or thorough. It also did not explore alternative measures to address the human aspect of the reported issues, such as mediation.
The landlord delayed in acknowledging and responding to the resident’s complaint and escalation requests. While it recognised and apologised for its service failure, it did not offer financial redress in circumstances where this would have been appropriate. It departed from its complaints policy by producing 4 complaint responses, and missed an initial opportunity to clarify the difference between a complaint and service request.

Orders and recommendations

Orders

The landlord is ordered to do the following within 4 weeks of the date of this report:
1. Reiterate its apology to the resident for its delays and other failures in responding to her complaint and progressing its ASB investigation.
2. Pay the resident £500, comprising:
  1. £400 for its delay and other failures in its handling of her ASB reports;
  2. £100 for its complaint handling failures.
3. Consider whether it is now appropriate for it to take formal or informal action against Tenant B in relation to ASB and/or access for repairs. In reaching this decision it should seek advice from its legal team and/or specialist legal advice. It should also seek input from partner agencies – such as the fire brigade, police, and any involved support agencies – if necessary, and be mindful of its repair responsibilities as well as any vulnerabilities. It should then inform this Service of its decision and the reason for this. It should also inform the resident and Tenant A of any action to be taken (having regard to data protection limitations), and its plan of action in the event of any further incidents of water penetration.
4. Allocate the resident and Tenant A a single point of contact in relation to the water penetration issue, if it has not already done so. It should provide direct contact details for this point of contact. The allocated officer should contact the resident to introduce themselves and agree the method and frequency of contact, including any arrangements when they are on leave.
5. Provide evidence of compliance with the above to this Service.

Recommendations

It is recommended that, once any access issue has been addressed, the landlord carries out a further inspection of Property B and satisfies itself that the boiler and all plumbing are in working order. It should also satisfy itself, as far as reasonably practicable and in line with its repair obligations, that the flooring and/or any membrane between the properties is intact and fit for purpose. It should then provide written assurance to the resident that it has done this. The landlord should inform this Service of its intentions with regard to this recommendation within 4 weeks of the date of this report.