London Borough of Hounslow (202007782)

REPORT

COMPLAINT 202007782

Hounslow Council

31 January 2022

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 concerns:
   1. The landlord’s handling of the resident’s requests to resolve a leak from a neighbouring property.
   2. The landlord’s response to the resident’s compensation request.

Background and summary of events

Background

2. The resident is a leaseholder.
3. The landlord’s Responsive Repairs policy notes it will undertake repairs to leaseholders’ properties where there is a contractual or other legal obligation that we do so. In most circumstances this means that, unlike weekly tenants, the leaseholder is responsible for repairs to internal building components (such as electrical fittings) and services inside the property, while the landlord is responsible for maintaining the structure, common parts, and supply of services to each flat.
4. The Repairs policy further notes claims for damage to possessions will only be considered where the landlord could have reasonably foreseen the need for repair and failed to take action or where there is a clear legal liability. In other circumstances it is the responsibility of the tenant to make a claim under their home contents insurance. For this and other reasons the landlord will encourage all tenants to obtain home contents insurance.
5. The Community Residential Insurance policy for leasehold and mortgaged buildings notes in the event of damage directly caused by an insured risk the insurer will pay the full cost of work for repairing or replacing as new the damaged part of the buildings provided the work is completed without delay. An insured risk includes escape of water from any fixed tank pipe, appliance, heating system or sanitary ware.

Summary of Events

6. On 23 July 2020, the resident notified the landlord that there was a leak from the overflow from the neighbouring leasehold property (leaseholder) above which was causing damage to both the internal and external part of her property.
7. It is noted that in order to remedy the issue, access was required from the leaseholder and several repair visits were made between August and October.
8. On 19 October the resident complained to the landlord that since reporting the matter in July, appointments had been made on 10, 13 and 25 August, when respectively, the plumber advised it could not consider the repair as it was the leaseholder’s responsibility and they had agreed to resolve the issue; access was refused by the leaseholder; and 2 ball valve floats were replaced which was noted as remedying the leak. However, a further appointment was made for 25 September given the leak persisted. On 12 October it was noted that the ball valve was faulty, and the resident did not understand this given they had recently been replaced. On 14, 16 and 29 October, further appointments were attended respectively noting again that the leak had been resolved and the issue was condensation accumulating; the leaseholder informed the landlord that the leak had reoccurred and therefore the issue remained; the landlord scheduled an appointment. The resident noted that she had provided videos of the leak.
9. The resident complained that 7 appointments to resolve the issue was excessive and she had been lied to after each appointment that the leak was resolved. She had requested a surveyor inspect the issue or her own plumber attend but this had been refused. She noted the leak had damaged the internal and external part of her property, the work she had commenced to the internal part following confirmation of the leak’s resolution was pointless given the leak still existed. The resident noted the landlord had agreed to repair the external wall and requested the expedition of the repair to make the wall sound so should the leak reoccur, there would be no water ingress into her property. The resident noted her daughter had moved out given the damage to her bedroom and the noise from the leak and that this was also impacting her health and her work.
10. The resident: requested that the landlord repair the external part of the property and communal tank as a mater of urgency; queried what action would be taken at the 29 October appointment that was different to that previously taken; whether a senior engineer would attend and if she could request a private plumber attend. The resident reattached all videos and photos of the leak.
11. On 12 November, the landlord provided its stage 1 response. It acknowledged that there had been multiple call outs which resulted in multiple interpretations of the root cause, and this had caused distress and continued inconvenience. It accepted that the engineers could have remained on site for longer periods to allow for better analysis of the root cause. It noted that on 27 October, following a visit it was identified that the root cause was the leaseholder’s immersion heater tank and the leaseholder had been advised to rectify the matter. It noted there had been 9 appointments between 10 August and 10 November and of those, 5 incorrect assessments had been made as no leak was observed and 1 incorrect as the leak continued after.
12. The landlord noted it had written to the leaseholder to ask them to comply with addressing the issue with the immersion heater in line with the leasehold terms. It noted British Gas had attended but a more detailed investigation was necessary and access to both properties was required. It noted the leasehold team would be arranging the appointment and it would remain focused on the leak until its resolution. It noted it had scheduled works on 18 November to repair the external wall, but given the impact of Covid-19, it was possible the appointment could be cancelled and rescheduled.
13. It concluded that its supervisory team should have had a closer working relationship with the leasehold team to ensure the leaseholder rectified the matter sooner. It apologised for the distress and inconvenience and the time and effort put in, confirming a key contact in place until resolution.
14. On 28 November, the resident escalated her complaint to stage 2 noting the leak was still in existence and had caused further damage internally. She noted at the point in writing there had been 12 visits and one emergency visit. She noted British Gas had again attended the leaseholder property noting there was an issue with the boiler/cylinder. The resident reiterated the impact on her family and work life, health, and wellbeing. She noted that leasehold services were no longer assisting her and had become dismissive, suggestions made to investigate the matter had been ignored. She was continuously chasing updates and the leaseholder had not rectified the matter in line with the landlord’s order, however the repairs team had accepted that the leaseholder had. The resident noted she had requested that the landlord compensate her for the delay in resolving the issue, but it had only provided her with its insurance details. The resident noted she had pursued an insurance claim in August when it seemed the leak had been resolved, works had commenced to the interior of her property and then the  leak had reoccurred causing further damage.
15. The resident noted that the inspection with the surveyor on 19 November resulted in the same conclusion being reached that it was the water tank, and the ball valve was adjusted. She noted she disagreed with this, and this was proven given the leak reoccurred on 23 November and another plumber advised the issue was the leaseholder’s boiler and cylinder. She reiterated that the landlord meet the cost of repairing the internal wall and compensate her for stress and inconvenience caused. The resident noted the landlord had not taken enough action to ensure the leaseholder rectify the issue but had rather accommodated the leaseholder in delaying the repair.
16. The resident requested that the overflow pipe be rerouted to resolve the leak falling onto the wall and noted she had received 2 inexpensive quotes. She expressed dissatisfaction that the surveyor and senior operative had attended and still had not identified the issue. She confirmed she sought:
    1. Costs for the internal wall to be met by the landlord.
    2. Compensation for the distress/inconvenience caused as a direct result of the landlord’s poor management of dealing with the leak and the lack of communication from both leasehold services and repairs.
    3. A permanent solution to reroute the overflow pipe into the gutter.
17. On 24 December, the landlord provided its final response. It noted that both the landlord and leaseholders had repairing obligations. It was responsible for repairing the main structure and communal services and leaseholders were responsible for maintaining services owned by them and serving only their properties. It noted it had tried to establish the cause of the leak to determine who was responsible and whilst finding the cause had taken too long, the nuisance (damage) caused by the leak was an issue between the resident and the leaseholder.
18. The landlord noted the leasehold team had made significant efforts to assist in resolving the matter with the repairs team with videos being shared and the level of communication between the parties. It noted there was no evidence that the leaseholder had been given preferential treatment, however continuous dialogue had been had in order to seek a solution to the issue. It apologised that the resident had found some of the communication to be dismissed and advised lessons had been learnt that communication could have ben clearer regarding the respective responsibilities, however staff had not ignored her.
19. The landlord noted that whilst there had been inconvenience caused by the time to resolve the leak, it was focused on finding the root cause, which had eventually been identified as an issue with the leaseholder’s internal water system, of which the leaseholder was responsible for. It noted it had been hard to diagnose the problem given the issue often occurred as a build up of water overnight. It advised the leaseholder had been cooperative with the landlord and had allowed tradesmen access, but delays had also been caused by tradesmen not being able to attend due to the Covid-19 restrictions. It noted it had kept the resident updated but appreciated the matter had taken a significant time to resolve and whilst it was not responsible for the repair, it could have taken some actions which would have led to a resolution sooner. It advised a plumber had attended the previous week and rectified the issue within the leaseholder’s property, but it would continue monitoring the issue given its responsibility for the exterior of the property.
20. It noted in relation to insurance claims and the cost of remedial works to the internal part of the resident’s property, advice given to raise a claim via the buildings insurance was the right advice. It noted it was not involved with insurance claims and leaseholders had direct contact with the insurer so had to submit their claims directly. It noted it would have expected the insurer to wait for the issue to be resolved prior to settling a claim, and advised the resident to contact the insurer again to discuss the claim and any further damage. It noted it was not responsible for interior damage caused by a defect in another leaseholder’s property, which is that leaseholder’s responsibility to rectify and as such there was no basis for compensation being warranted.
21. The landlord advised it had expended a significant amount of resources in attempting to remedy the issue which it was not directly responsible for and had since reached a solution. It noted the tank and overflow were in the leaseholder’s property and consent would be needed to reroute this. It noted it would investigate this and if necessary, would undertake the work if consent was given by the leaseholder.
22. The landlord concluded noting emphasising with the inconvenience caused but noting it had acted in good faith to help resolve the challenging problem, for which it was not responsible. However, it advised it was possible the problem may have been able to be identified sooner and communications could have been clearer, but given it was ultimately not its responsibility, it had made strenuous efforts to resolve the matter.
23. In December 2020 the resident was advised that the tank in the leaseholder’s property was not communal and therefore solely the responsibility of the leaseholder.

Assessment and findings

24. As per the leasehold agreement, the landlord is responsible for external building works and communal repairs. Whilst the landlord has stated that the nuisance caused by the leak was a matter between the leaseholder and resident; given that it had been unable to determine the cause and who was ultimately responsible, this was not reasonable.
25. During the course of the appointments, the Ombudsman cannot see that the tank was ever referred to as the leaseholder’s responsibility, rather given that the landlord had replaced ball valves on more than one occasion, it was clear that it also believed the tank was a communal tank, for which it was responsible. As such it was reasonable for the resident to believe that the landlord would resolve the matter and heed when it advised the issues had been resolved.
26. In the landlord’s stage 2 response it noted it was not responsible, however given that the previous appointments by both its surveyor and operative concluded differing issues as the root cause, and again noting that the tank had not been deemed the responsibility of the leaseholder (and if it had been, this had not been communicated to the resident until 16 December), this was therefore somewhat confusing for the resident. As such until this conclusive decision was reached the landlord cannot assert that at all times it had no responsibility pertaining to the matter. The landlord’s failure to identify this in its stage 2 response and subsequent impact this had on the resident amounted to maladministration (service failure).
27. The Ombudsman does not accept the landlord’s position in that the resident should not have made an insurance claim until the matter had been resolved. It is clear on 25 August that the resident was advised that the replacement of the ball valves had resolved matters and as such she reasonably pursued the claim. Again, this action is tantamount to the landlord’s belief that the tank was indeed communal. Whether or not the insurance company chose to process the claim is a separate matter, but it remains that the resident acted on good faith in instigating the claim.
28. The resident reasonably commenced internal repairs to her property and 4 weeks later the leak reoccurred causing further damage. It is reasonable that the resident sought compensation from the landlord, however the landlord was correct in advising that she pursue the matter via the insurance company. However, given the time taken for the landlord to conclusively note the matter was the leaseholder’s to resolve, and the acceptance that there was the possibility this could have been identified sooner, the delay in doing so should have been seriously considered.
29. Whilst the Ombudsman agrees that the landlord is not responsible for compensating for the internal works to be completed as this can be pursued by way of an insurance claim, the Ombudsman does believe there was maladministration (service failure) in the landlord’s overall handling of the matter pertaining to the repair.
30. Additionally, given that the lease notes leaseholders have to keep in good repair internal structures, and yet there is a continued leak and an issue with the tank or boiler/cylinder, the Ombudsman cannot see that the landlord has sought to take more formal action against the leaseholder to ensure that they effect the repair.
31. Whilst it has been concluded that the matter is the leaseholder’s to resolve, given the landlord’s position that it would consider the permanent solution, the Ombudsman deems that this should be taken forward, seeing as not only does the leak affect the internal parts of the property, but external damage is also caused, for which the landlord is indeed responsible for.

Determination (decision)

32. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration (service failure) in the landlord’s handling of the resident’s reports of the leak.
33. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s response to the resident’s compensation claim.

Reasons

34. During the course of the reports the landlord attended several times assuming responsibility for the leak by carrying out certain repairs until it concluded later that it was never is responsibility. This earlier action and advice led the resident to believe that steps were being taken to resolve matters however the leaks reoccurred and the landlord’s response to this was somewhat confusing.
35. The landlord correctly advised the resident to pursue a claim via her insurers and this was reasonable in the circumstances, given that the insurance policy covers such eventualities.

Orders and recommendations

36. The Ombudsman orders that the landlord:
    1. Pays the resident £250 for the time and inconvenience caused in pursuing the matter and stress caused by the misinformation provided that the leak had been resolved when in actual fact it existed and rendered the internal repairs futile.
    2. Carries out a survey on rerouting the overflow pipe as a permanent solution to the continued leaks, sharing the findings with the resident.
    3. Should the resident have to pay an excess when making a further insurance claim, the landlord reimburse this, given the resident has relied on several statements that the issues had been resolved and rightfully pursued her claim, yet the leak persisted.
37. All orders should be complied with within 4 weeks of this report.