London & Quadrant H T (201906982)

REPORT

COMPLAINT 201906982

London & Quadrant H T

5 March 2021

Our approach

What we can and cannot consider is called the Ombudsman’s jurisdiction and is governed by the Housing Ombudsman Scheme. The Ombudsman must determine whether a complaint comes within their jurisdiction. The Ombudsman seeks to resolve disputes wherever possible but cannot investigate complaints that fall outside of this. 

In deciding whether a complaint falls within their jurisdiction, the Ombudsman will carefully consider all the evidence provided by the parties and the circumstances of the case.

The complaint

1. The complaint is about the landlord’s handling of repairs at the resident’s property. 

Determination (Jurisdictional decision)

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint, or part of a complaint, will not be investigated.
3. After carefully considering all the evidence, in relation to the complaint above, it has been determined that the complaint will not be investigated and is therefore outside of the Ombudsman’s jurisdiction. The reasons for this have been set out more clearly below.

Summary of events

Background

4. The resident has been an Assured Tenant, in respect of the property, since 2010.
5. The property is a two-bedroom, ground floor flat.
6. The resident suffers from several health conditions. The landlord is aware of these conditions.

The landlord’s handling of repairs at the resident’s property. 

7. On 19 February 2019 the resident instructed Citizens Advice Bureau (CAB) to submit a complaint on her behalf. She asserted:

1. In the past she had reported several issues regarding the condition of her property however nothing had been done to carry out the repairs effectively.
2. There was damp on the back wall co-joining her garden, in the kitchen, bathroom, and on the wall between hers and her neighbours home due to a leaking pipe. The plumbing in the kitchen was faulty and needed to be rectified.
3. The wet room drain was blocked, and no workman had been able to identify the problem. The bathroom floor plug was broken, shower cubicle rusty and the wall cracked.
4. The front door to the passage needed to be replaced.

The resident explained that these issues were impacting her health and she was additionally displeased with the lack of insulation in her property. It was requested that the landlord investigate this matter under its complaints process.

8. The resident also involved her local MP who, in turn, brought this to the landlord’s attention.
9. The landlord therefore considered the resident’s complaint within its complaints procedure. The Ombudsman can see that on 1 March 2019 the landlord responded to the resident’s complaint. In summary, the landlord explained:
   1. Internal moisture could be mitigated through good ventilation, regular use of the heaters, and extractor fans. The resident was also advised to wipe the windows down.
   2. Condensation, which was normal in most homes, was not necessarily caused by a defect. The landlord therefore relied on residents to manage this to prevent mould build up where it was not a structural defect.
   3. Reports of elevated moisture levels were made in early August 2018. On 20 August 2018 it attended the resident’s property. Following this, the landlord instructed its contractor on 21 August 2018 to locate and address leaks which were affecting the hallway and kitchen walls. This was resolved on 28 August 2018.
   4. An expert damp and moisture specialist contractor were also instructed on 6 September 2018. A survey of the property was undertaken, and findings reported on 14 September 2018. Moisture readings taking of the wall separating the kitchen and bathroom were found to be zero to minimal.
   5. The right-hand party wall had been replastered in August 2018. Installation of a new horizontal Damp Proof Course (DPC) had previously been arranged. Overall, no specialist repairs were recommended.
   6. Following contact again on 15 January 2019 in relation to dampness affecting the bathroom wall, it attended on 25 January 2019 discovering no dampness or moisture in the bathroom. It was also arranged for an inspection of the neighbour’s property to take place to assess for leak or repair issues.
   7. In relation to plumbing issues, there were no records of any recent reports of plumbing concerns in the kitchen.
   8. In relation to the residents heating and insulation concerns, it was confirmed that the property was solid wall construction which precluded any sort of wall insulation. A heat loss survey would therefore be completed by an expert consultant.

The landlord concluded that there had been no failing in handling the resident’s reports. It stated that it would discuss solutions with its team to address the wet room, shower cubicle and cracks on the bathroom wall and provide the resident with an update.

10. Equally, on 12 April 2019 the landlord wrote to the resident’s MP following further communication (in which the resident reiterated her concerns). It explained that it had further investigated the matter and stated:
    1. A supervisor attended on 9 April 2019 to carry out a full inspection of the property and found no issues with the shower plug within the wet room. There was no evidence of blockages.
    2. No evidence of damp was found in the wet room. This may have been as DPC works were completed in February 2019.
    3. No evidence of damp was found in the bedroom, however mould was found in the corner of the bedroom which it was concluded could be the result of the resident installing a patio in the back garden. The resident was advised on how to treat the mould.
    4. No issues were found with the door other than the need for paint.
    5. In March 2019 the gas contractor attended the resident’s property and replaced radiators following her complaints that the property was too cold. There were no issues with the radiators being attached.
    6. It would not inspect the cellar as this was an unusable space. This would only be if there was a leak within this area.
11. Between May and June 2019, the landlord corresponded with the resident’s (new) representative. Following questions from the representative, seeking to establish when the landlord would address the damp, the landlord explained (on 19 June 2019):
    1. A supervisor inspected the resident’s property twice within the previous 5 months in January and March 2019. No evidence of damp was found.
    2. In March when the supervisor attended, they were unable to complete the inspection of the property as the resident became angry after being informed that no damp was present.
    3. Following a request to address other outstanding repairs, a further inspection had therefore been arranged for 25 June 2019 and a review would be undertaken of the ongoing damp reported, the rusty shower cubicle, cracks on the bathroom and hallway walls, and the door.

The landlord stated that once the inspection had been completed, any necessary repairs would be carried out.

12. On 5 July 2019 the landlord contacted the resident following an update on the recent inspection. It explained:
    1. Moisture was detected in the bedroom, hallway, and bathroom. Dampness was also apparent on the rear wall adjoining the garden, kitchen, and bathroom.
    2. Air vents in the bathroom and kitchen had been covered, inhibiting airflow.
    3. A moisture specialist would inspect the patio which it was suggested could have breached the DPC.
    4. No issues were found with the draining
    5. A repair order had been raised for the gulley grate to be fixed / cracks in the bathroom wall.
13. On 9 July 2019 the resident’s representative responded to the landlord. It stated that:
    1. The resident confirmed the vent in the bathroom was covered by the landlord on a previous visit.
    2. The resident had covered the vent in the kitchen to prevent cold draughts. There were other vents in the property, but it was still damp.
    3. The resident did not accept that the patio had impacted the DPC. It had only been installed a year prior, however the property had suffered with damp since she moved in.
    4. The resident confirmed that water did not fully drain from the wet room. As a result, there was a smell from the collected water.
14. The Ombudsman notes that several inspections were undertaken in July and August 2019. No signs of a defect or a leak were identified within the cellar however recommendations were made to address the wall partition, rear elevation wall and kitchen extractor fan.
15. On 5 September 2019 the landlord explained to the resident that it would be closing her complaint, as she had physically assaulted its operative. Nonetheless the landlord issued a response to the resident’s MP, prompted by the Ombudsman Service, on 18 September 2019. It stated:
    1. A damp specialist had attempted to carry out the agreed works in the resident’s living room on 23 August 2019. While attempting to conclude this, the resident assaulted the operative and retained his tools.
    2. Prior to this, the operative did complete the damp works which involved thermal boarding to the right-hand side of the living room wall to match the left side, to eliminate mould from the external wall. The only maintenance works outstanding was to paint the right-hand side living room wall and the wall in the wet room. The landlord confirmed that an order had been raised to redecorate the affected areas.
    3. A joint inspection had since been carried out with a case manager and building surveyor and both were satisfied that the works were completed to a good standard. Once the painting had been completed, this would conclude the agreed works to address the damp and cold.
    4. During the visit the resident requested adaptations to her home and was advised to contact an occupational therapist.
16. The Ombudsman can see that on 27 September 2019 the resident acquired a solicitor who issued the landlord with a Letter of Claim for Housing Disrepair, under the Housing Disrepair Protocol. It stated that there were several outstanding issues which the resident remained dissatisfied with and requested an inspection as soon as possible, as well as disclosure of the residents works records.
17. This was acknowledged by the landlord’s legal disrepair team on 9 October 2019. The landlord requested access to the resident’s property for a pre-inspection on 17 October 2019, after which, a schedule of intended works would be provided. The Ombudsman can see that the inspection was successfully undertaken on 17 October 2019.
18. The Ombudsman notes that on 10 March 2020 the landlord wrote further to the resident’s MP in relation to its previous findings, the resident’s housing options (as she wished to move), and how she could arrange any adaptations needed to her property.
19. On 24 March 2020 the resident acquired new legal representation and again, a Letter of Claim for Housing Disrepair, under the Pre-action Protocol for Housing Condition Claims was issued. It was explained that it (the legal representative) had been instructed to act on behalf of its client in relation to a claim for housing disrepair pursuant to the landlord’s breach of the tenancy agreement, breach of common law repairing obligations and a breach of its statutory duty.
20. The landlord should have responded to this by 27 April 2020, the Ombudsman notes that it did not.
21. On 6 May 2020 the resident’s legal representatives submitted an application to County Court as there had been no response (or provision of disclosure documents).
22. The Ombudsman can see that on 19 May 2020 the court considered the application / claim for pre-action disclosure, and made orders for the landlord to provide the information and to make payment to the resident/resident’s legal representatives to account for the costs of pursuing this. 
23. Notice of a warrant of control was issued on 3 July 2020 as payment had not been made under the judgment ordered.

Reasons

24. The Ombudsman has determined that the resident’s complaint falls outside of this Service’s jurisdiction. This is as the Ombudsman notes that the resident began pursuing her dissatisfaction with the landlord’s repairs under the pre-action protocol (on two occasions) and most recently (in May/July 2020) commenced legal action in pursuit of disclosure information and legal costs.
25. While the Ombudsman has been unable to determine the stage that the pre-action protocol / legal pursuit is at, in the Ombudsman’s view, it would be more reasonable for the resident to continue to take this route in order to achieve resolution (through a more appropriate body) of the outstanding issues. The Ombudsman is of the view that as this process has been started, this would be the most effective course of action.
26. Moreover, paragraph 39(i) of the Housing Ombudsman Scheme explains that the Ombudsman will not consider complaints which, in the Ombudsman’s opinion, concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek remedy through the courts, a designated person, other tribunal or procedure. As such, and with paragraphs 24 and 25 in mind, the Ombudsman has concluded that determination of the resident’s assertions of disrepair would be better suited for the courts.
27. In arriving at this decision, the Ombudsman has also considered that several inspections were undertaken and works completed which, the evidence suggests, the resident did not believe were satisfactory in resolving her issues. The resident / landlord would therefore benefit from a technical assessment, an agreed expert inspection (and opinion), and/or expertise offered by the courts in reaching a binding decision.
28. As detailed in point 19, the Letter of Claim for Housing Disrepair initiated the pre-action protocol process and the resident’s intention to take court action where the timeframes under this process were not met. In line with the advice provided by Shelter, the next step (where a landlord has failed to respond under the pre-action protocol) would be to begin court action. The Ombudsman would therefore consider this to be the most appropriate option.