London Borough of Brent (202204732)

REPORT

COMPLAINT 202204732

London Borough of Brent

9 November 2023

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

This complaint is about the landlord’s:
1. Response to the resident’s reports of leaks from the roof and subsequent internal damage to his property.
2. Response to the resident’s concerns about his insurance claim for the damage to his property.

Background and summary of events

Background

The resident is a non-resident leaseholder of the landlord. The property is a second floor flat in a block of similar properties. The resident lets his property to private tenants.
During the complaints process, the resident contacted the building insurer to make a claim for internal damage to this property. The insurer refused the resident’s claim stating that there was a clause in the policy which stated that, as he was renting out the property, he could not make a claim under that policy. Following this the resident told the landlord that he did not believe that the building insurance for his block was fit for purpose. Whilst this was understandably distressing for the resident, it is beyond the remit of this Service to make a determination with regards to the actions of insurers or with regards to the content and suitability of the building insurance in place at the resident’s block. As a result, this issue will not be discussed any further in this report. The resident may wish to seek independent legal advice on these matters if he wishes to pursue these with the landlord.
Nevertheless, this investigation will consider the landlord’s communication regarding the insurance information and claims, and whether this was fair and reasonable.

Summary of events

On 9 and 10 March 2021, the resident emailed the landlord to report that although he was aware that there were damp problems in the building, he did not realise the extent of the problems until he started to repair and refurbish his flat that week. The resident went on to say that he was unable to paint or do any redecoration. The resident referred the landlord to recent major works to the building, including the roof and that his neighbours had raised similar concerns. The resident said that he expected this matter to be dealt with promptly or he would be escalating it to a formal complaint. The resident also said that a surveyor attended a few weeks previously and had confirmed that there was an issue with the roof pointing.
The resident emailed the landlord again on 12 March 2021 to say that he had been trying to speak to someone all week regarding water coming from his roof and causing ‘severe’ damp in his property.
The landlord contacted the resident on 15 March 2021 to advise that it had logged the resident’s contact as a formal service request, noting that it was aware of issues being faced by residents in the top floor of the block. The landlord went on to say that it felt that the parapet was allowing water to penetrate the walls and that the lack of drips to the head of the windows could also be contributing to the issue. The landlord went on to say that it was proposing the following action:
1. Its roofing contractor had designed a capping for the parapet, an order had been placed for the materials and a sub-contractor appointed to carry out the works, which they hoped to commence on 22 March 2021, subject to weather conditions.
2. A CCTV survey of the roof drainage would be undertaken to ensure there were no cracks/ blockages in the system which may contribute towards the issue.
3. A window contractor had been asked to see if drips could be retro fitted to the heads of the windows. The landlord noted that this work would require scaffolding or a cherry picker, and so it was obtaining costs.
4. A consultant had been appointed to carry out further investigations to ensure the issue was dealt with thoroughly and the landlord would update the resident as soon as it had a programme of works.
Inspections were carried out by the consultant on 21 April and 10 May 2021 and a ‘water ingress’ report completed on 19 May 2021. The report noted that there was no rain at the time of either inspection, however there had been rain before the inspection on 10 May 2021.The report recommended a programme of external works to the block and that patch repairs or attempting fixes on an ad-hoc basis would not solve the problems at the building. The works should include:
1. Repointing to all of the brickwork.
2. Repointing to the parapet walls
3. Repointing to the chimney stacks.
4. Replacement of the cement fillet on the step with a mental apron detail. This could be lead or zinc.
5. Replace spalled and broken bricks.
6. Hack off and replace the render, allowing the brickwork to dry before re-applying.
7. Install wider coping stones to the parapets.
8. Renew the waterproofing finish to the balconies,
9. Install head drips to all of the windows.
Between 24 and 27 May 2021 the resident was in contact with the landlord regarding making a claim for the damage to his property. The landlord initially advised the resident that, as a leaseholder, he would need to claim against the building insurance. However, the building insurer refused his claim. The resident contacted the landlord to advise it of this and that he had never received any information or explanation about the insurance the landlord had set up on his behalf. In response, the landlord said that it had spoken to its in-house loss adjuster who had advised that should the building insurer reject his claim, and if he considered the landlord to have been negligent, he could approach its own insurers to make a claim.
The landlord’s records indicate that the resident logged a formal complaint about his building insurance on 6 June 2021. A copy of this complaint has not been seen by this Service.
On 12 July 2021, the resident emailed the landlord to log a formal complaint about its response to his reports regarding the leak from the roof and internal damage to his property. In his complaint the resident said:
1. That he only became aware of the issue when his tenant left the flat at the beginning of March 2021, although he was aware after speaking to other resident’s that the issue had been reported to the landlord many times.
2. As he wanted to let the property again, he had to repaint the whole flat to remove the damp and repair the damaged walls and skirting in the living room, which were extensively damaged. The paint came off again in the living room and he could see the spots of water coming through the wall again.
3. His new tenant had complained about the same issue and so he had to hire a damp removal machine and repaint the living room again at his own expense. The resident said that this was despite having spent thousands of pounds repainting the flat just 3 months previously.
4. The consultant’s water ingress inspection report from May 2021 had not been sent to him and nobody from the landlord had visited his flat to check it the problem had been resolved.
The landlord issued a stage 1 response to the resident’s complaint, about its response to his reports of leaks and damp, on 14 September 2021. The landlord offered the resident £3,500 compensation made up of £2,500 towards the costs of the works and £1,000 for the distress and time spent in seeking a resolution to the complaint. The landlord also noted that the resident had now been provided with a copy of the water ingress report.
The resident contacted the landlord again on 29 November 2021 asking that his complaint be re-opened as he had accepted compensation on the basis that the issue of the water leak had been resolved, but it had not. On the same day the resident also submitted a claim form to the landlord’s insurer referring to damage to walls, bonding, paint and laminate flooring in living room/lounge and damp and damage to paint in main bedroom.
The landlord provided a stage 1 response following the resident’s contact on 29 November 2021, the letter provided to this Service is undated. The landlord said:
1. A survey had highlighted that the block was suffering from severe damp caused by the failure of the external brickwork, this issue was also preventing the drying out of some of the areas that were previously reported, and cold bridging.
2. It needed to allow the damp area to dry out as all areas were ‘‘very slow’’ due to the high moisture content. The landlord suggested that a dehumidifier may assist, which it could arrange if this was acceptable.
3. If there was a physical leak to the roof it could instruct repairs to urgently assist in the repair again.
4. It would only recommend any further internal decorations when all areas were dried.
5. With reference to long term resolution there was a recommendation to install external wall installation or extensive pointing, this was currently being considered as this would resolve the ongoing issues of the block.
The resident requested an escalation of his complaint regarding the leak and internal damage to his property on 7 February 2022, in which he said that:
1. He had not received any communication written or otherwise about the issue or the actions the landlord had taken to remedy the problem, the response was very vague, and apart from offering a dehumidifier, did not say much. The resident said that the landlord’s response was inadequate and not fit for purpose.
2. There was a major leak from the roof, water was dripping from above, it was not just a damp issue but there was a brown liquid with a chemical smell and the walls had been repaired only a few months previously
On 8 February 2022, the resident requested an update on his insurance complaint.
An inspection of the roof area above the resident’s property took place on 3 March 2022. The report recommended that maintenance was carried out to the complete roof area, that the render to all parapet walls be stripped and replaced where it was deteriorating, and that all external brickwork should be checked and pointed where required. The report noted that a small felt repair was carried out to corner detailing following inspection of upstands and debris buildup was moved away from corner area. It was also noted that the bedroom leak issue should be monitored internally and if it reoccurred further remedial works would be required to the detailing.
The landlord issued its final response to the resident’s complaint about the leak and internal damage to his property on 18 March 2022. The landlord apologised for the length of time this matter had been outstanding, the unnecessary time and trouble to the resident and the impact it had had on him. In its response the landlord said that:
1. Its contracts manager had contacted the resident on 7 February 2022 to advise that more extensive repairs would be needed to provide a permanent solution to the roof leak, and this would need to be discussed with his neighbours and with the consultants responsible for arranging the works. It was also noted that it was suggested that in the meantime a dehumidifier would assist in preparing the property for re-decorating.
2. Its consultant arranged for the roofing company that replaced the roof in 2018 to carry out the repairs under warranty. The works were completed on 8 March 2022 and the leak had been stopped.
3. The resident had been contacted on 17 March 2022, and that he had confirmed that the works had taken place, the landlord noting that he would not be certain that the repairs had resolved the leak until there next time there was heavy rain.
The landlord went on to acknowledged that there were a number of service failures in this case and that a number of issues with the contractor caused further delays. It would ask the Housing Management Service to ensure that they improve their communication with the resident and ensure that his queries were addressed promptly and offered the resident £200 compensation for the delays in carrying out the repairs. The landlord ended by saying that additional works of improvements would be considered in the next financial year by the asset management team and that all block residents would be contacted once a decision had been made.
On 11 April 2022, the landlord issued its final response to the resident’s complaint about the insurance, in which it:
1. Acknowledged that there were a number of service failures with regards to its response to his enquiry and complaint, some of which it said were caused by difficulties in clarifying the insurer’s position.
2. Confirmed that it was responsible for providing a building insurance policy that was fit for purpose. However, it did not have access to the specific details of the claim made to the insurer and had no control over the decision making process for individual claims.
3. Said that it was its position that although the insurer did not cover accidental damage to sublet properties under the building insurance, leaks caused by an incorrectly fitted roof should not be considered ‘accidental damage’.
4. Said that such issues were covered under its liability policy instead of the building insurance and that the resident would be contacted within a week, to assist him in completing a claim under its liability policy.
5. Said that it would be undertaking a full review of its current insurance contract and any new contracts going forward to ensure they are clearer as to what is covered under the policy.
6. Apologised and offered the resident £100 compensation for the delays in its response to his complaint.

Assessment and findings

The Ombudsman’s role is to assess whether the landlord has followed proper procedure, good practice, and behaved reasonably, taking account of all the circumstances of the case. When considering the landlord’s handling of the matter, the Ombudsman is guided by the landlord’s policies and procedures and our own Dispute Resolution Principles, which are, ‘be fair – treat people fairly and follow fair process; put things right and learn from outcomes’.
When considering how a landlord has responded to a complaint, the Ombudsman considers not just what has gone wrong, but also what the landlord has done to put things right in response to a complaint. This includes the steps the landlord has taken to address the shortcoming and prevent a reoccurrence, as well as any compensation offered.

Response to the resident’s report of leaks from the roof and subsequent internal damage to his property.

The Ombudsman expects landlord to handle repairs, for which it is responsible, appropriately by completing them in a reasonable time and providing regular communication and updates to the resident about the works.
The landlord has only provided the first two pages of the Lease. However, it is usual that a leaseholder has responsibility for repairs within the demised property, and repairs to the structure of the building would be the responsibility of the landlord. This is confirmed on the landlord’s website which states that it is responsible for repairing and maintaining “foundations, outside walls, roofs, outside doors and window frames”.
The landlord was therefore expected to investigate the resident’s reports of the leak, in a timely manner, in order to determine its responsibility for completing repairs, and the nature and extent of the repairs required. The landlord would also be expected to complete any identified repairs in a timely manner.
The resident initially reported issues with leaks and internal damage to his property on 9 and 10 March 2021, the landlord recognised its responsibility for the works to the roof and on 15 March 2021 outlined the action it was proposing to take in response to the already known issues for the resident’s on the top floor. The landlord has provided no evidence of the subcontractor carrying out the works on 22 March 2021, the CCTV survey nor any actions being taken by the window contractor.
Inspections by the consultant were carried out on 21 April and 10 May 2021, with the report following those inspections being completed on the 19 May 2021, approximately 2 months after the resident’s reports. The report recommended a number of repairs that were required, noting that patch repairs or ad-hoc attempts to fix the issue would not solve the problems at the block.
The resident raised a previous complaint with the landlord about how it had responded to the above reports of leaks and subsequent damage to his property, for which the landlord issued a stage 1 response on 14 September 2021. In that response the landlord offered the resident £3,500 compensation made up of £2,500 towards the costs of the works and £1,000 for the distress and time spent in seeking a resolution to the complaint.
This investigation has not assessed the £3,500 compensation offered by the landlord in its response to the resident’s previous complaint, as this complaint has not been bought to this Service by the resident, nor has it exhausted the landlord’s formal complaints process.
The resident sought to reopen the above complaint two months later on 29 November 2021, stating that he had accepted the compensation in the basis that the leak had been resolved, when it had not. The landlord’s complaints policy does not give a definite timescale within which complaints should be escalated, stating that ‘‘Complainants are strongly encouraged to make any escalation request within eight weeks of a first stage response being issued’’. Given 11 weeks had had passed since its stage 1 response, and there is no evidence of the resident contacting the landlord to escalate his complaint prior to this, it was not unreasonable for the landlord to open a new stage 1 complaint.
Whilst the copy of the stage 1 response letter submitted to his Service is undated, given that the resident escalated his complaint on 7 February 2022 it is reasonable to conclude that the response was likely to have been issued at some point between late January 2022 and early February 2022.
Whilst the stage 1 response explained what had been highlighted in a survey, its response was vague and gave no indication of what actions it intended to address the ‘’severe damp’’ the building was ‘’suffering’’ nor any timescales within which these would be carried out. It is also understandable, given that the landlord had acknowledged that the ‘‘severe’’ nature of the damp at the property that the resident would find its suggestion that he considers using a dehumidifier as being inadequate.
Following the resident’s escalation request of 7 February 2022, a further inspection of the roof was carried out on 3 March 2022, almost 11 months after the inspections of 21 April and 10 May the previous year. This report again confirmed the finding of the previous inspection, that maintenance was needed to the complete roof area, and again referred to the poor condition of the render and parapet.
The works were completed on 8 March 2022, the landlord consultant having arranged for the roofing company that replaced the roof in 2018 to carry out the repairs under warranty, and the leak stopped. This was almost 1 year after the resident had initially reported the leak to the landlord.
A delay in repairs is not always considered a failure, particularly if the issue is complex and it is acknowledged that leaks and subsequent damp and mould can take more than one inspection or repair attempt to resolve as there can be several potential causes. However, where repair work is overdue, residents should receive regular updates clearly explaining the reasons for delay and the expected date of completion. In this case, which the landlord did acknowledge its responsibility to repair, engaged a consultant and carried out inspections, there were both periods of inaction by the landlord and periods where it failed to communicate effectively with the resident.
Further, it is evident from the landlord’s final response that more extensive repairs would be needed to find a permanent solution to the roof leak. Given that the resident had by this time already been reporting leaks for over a year, it would have been reasonable to expect the landlord to have had a sense of urgency about completing these works, however this was not evident from its final response.
It would also be reasonable to expect the landlord to have provided the resident with an indication of timescales for these ‘more expensive repairs’ and to have come to an agreement with the resident as to how and when it would update him on the progress of these works, but there is no evidence that it did. Given this a recommendation has been made for the landlord to do so, if the works have not already been completed. If the works have been completed a further recommendation has been made for the landlord to consider whether any further compensation might be appropriate were there to have been further unreasonable delays in it completing the works following its final response to this complaint.
It is not disputed that there were failings by the landlord in its handling of the leak as in its stage two complaint response it acknowledged there had been delays and poor communication, for which it offered £200 compensation. Where there are admitted failings by a landlord, the Ombudsman’s role is to consider whether the redress offered put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman assesses whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: be fair, put things right and learn from outcomes.
Overall, given that the landlord had previously offered the resident £3,500 towards the costs of the internal works he had carried out to his property and £1,000 for the distress and time spent between March 2021 and 14 September 2021, the landlord’s offer of a further £200 compensation was proportionate to the level of its ongoing failures, in the four months between the resident raising further concerns with the landlord, on 29 November 2021, and its final response of 18 March 2022. As a result, a finding of reasonable redress has been made, this being subject to the landlord paying the resident the £200 it previously offered.
The resident’s insurance claim for internal damage to his property formed part of the second complaint considered in this report and so has not been considered any further here.
It should be noted that whilst this Service has been able to make a determination based on the available evidence, the records provided to this Service by the landlord were not comprehensive. This omissions indicates poor record keeping by the landlord in that it was not able to provide the relevant information when asked. It is vital that landlords keep clear, accurate and easily accessible records to provide an audit trail.
The Ombudsman’s investigations are based on evidence provided by the landlord and resident and in the absence of clear evidence from the landlord, we may not be able to determine whether the landlord has taken sufficient steps to fulfil its repair obligations. An further recommendation has therefore been made for the landlord to reviews its record keeping processes to ensure that it keeps clear records of all its communications, inspections and repair works, including any evidence it relied on when responding to the complaint.

The landlord’s response to the resident’s concerns about his insurance claim for the damage to his property.

As the resident is responsible for the repair and maintenance of the interior of his property, it was reasonable for the landlord to advise him, in the first instance, to make a claim against the properties building insurance with regards to the damage to his flat. The landlord also advised the resident that if he felt it was liable for the damage to his property, he could submit a claim against its insurance. This was appropriate advice by the landlord, following which the resident made a claim under the building insurance and, subsequently, the landlord’s own insurance.
It is acknowledged that building insurance claim was refused by the building insurer. This Service has also seen evidence that, subsequent to the landlord’s final response, there were also issues with the resident’s claim against the landlord’s own insurer. Whilst the upset and inconvenience to the resident as a result of the decision made by both insurers is acknowledged, as previously explained it is not within the Ombudsman’s authority to consider either the actions of insurers nor the outcome of either claim.
It is however within the Ombudsman’s authority to consider how the landlord responded to the specific concerns raised by the resident with regards to the insurance. These concerns were that:
1. He had never received any information or explanation about the insurance the landlord had set up on his behalf.
2. The building insurance for his block was not fit for purpose.
In its final response, the landlord recognised the resident’s concerns about the building insurance and said that going forward it would undertaking a full review of its current insurance contract and any new contracts going forward to ensure they are clearer as to what is covered under the policy. This was a reasonable step to take in that it both acknowledged the resident’s concerns and sought to find a way to prevent the concerns raised by him occurring in the future. The landlord also acknowledged the delay in it providing the resident with a response to the complaint for which it apologised and offered £100 compensation.
Whilst these were appropriate step for the landlord to take, there no evidence of the landlord responding to the resident’s concerns that he had never received any information or explanation about the insurance. The evidence provided by the landlord also only includes a stage 2 response and no evidence of a stage 1 response being issued. As a result, the landlord has failed to evidence that the resident had the opportunity to challenge any decision by correcting errors or sharing concerns via an appeal process, which it was required to do under this Service’s complaint handling code.
Given that this report has already identified record keeping issues by the landlord, it may well be that the stage 1 one response was issued but not included in the records provided to this Service, rather than not being issued at all. However, as both these situations would represent a failing by the landlord a finding of service failure has been made and the landlord ordered to pay the resident an additional £100, bringing the total payable to £200.

Determination (decision)

In accordance with paragraph 53(b) of the Housing Ombudsman Scheme there was reasonable redress by the landlord in respect of its response to the resident’s reports of leaks from the roof and subsequent internal damage to his property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its response to the resident’s concerns about his insurance claim for the damage to his property.

Reasons

It is not disputed that there were failings by the landlord in its handling of the leak. However, given that the landlord had previously offered the resident £3,500 towards the costs of the internal works he had carried out to his property and £1,000 for the distress and time spent between March 2021 and 14 September 2021, the landlord’s offer of a further £200 compensation was proportionate to the level of its ongoing failures in the following four months, between up 29 November 2021, when the resident raised further concerns with the landlord, and its final response of 18 March 2022.
Whilst the £100 offered by the landlord in its final response was proportionate to the delay in it providing its response, the landlord failed to evidence that it issued a stage 1 response or that it had responded to the resident’s concerns that he had never received any information or explanation about the insurance.

Orders and recommendations

Orders

That within 4 weeks of the date of this report the landlord is to:
1. Pay the resident a total of £200 compensation made up of the £100 offered in its final response, if this has not already been paid, and a further £100 for its failure to evidence that it issued a stage 1 response or responded to all the concerns raised by the resident with regards to his insurance claim.
2. Ensure that the resident is provided with the information he requested about the building insurance for his property, if it has not done so already.

Recommendations

It is recommended that the landlord:
1. Pays the resident the £200 offered in its final response for the delays and its poor communication with regards to leaks and the internal damage to his property.
2. Provides the resident with an indication of timescales for the extensive works, referred to in its final response, and to come to an agreement with the resident as to how and when it would update him on the progress of these works.
3. If the works have been completed, considers whether any further compensation might be appropriate were there to have been further unreasonable delays in it completing the works following its final response to this complaint.
4. Provide the resident with an update on the review of its current insurance contract and any new contracts going forward referred to in its final response.
5. Reviews its record keeping processes to ensure that it keeps clear records of all its communications, inspections and repair works, including any evidence it relied on when responding to the complaint.