London & Quadrant Housing Trust (L&Q) (202214912)

REPORT

COMPLAINT 202214912

London & Quadrant Housing Trust (L&Q)

30 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 handling of:
1. Repairs to the balcony.
2. A complaint about the surveyor’s conduct.
3. The erection of scaffolding.
4. The associated complaint.

Background

The resident lives in a two-bedroom flat under a leasehold agreement. The lease is dated 9 June 2017. The landlord is the freeholder.
The resident’s property is on the first floor. It has a balcony with wooden decking covering the base surface. The balcony has a water pipe from above that fits into a gully on the balcony.
On 30 August 2022 the resident complained to her landlord about:
1. a cancelled appointment on 1 September 2022 that she said the landlord had not given her notice of
2. a blocked drain under her balcony which she said caused water to drain slowly and smell
3. mould growth underneath her balcony.
The landlord provided its stage 1 response on 1 September 2022. The landlord said:
1. it upheld the resident’s complaint
2. it raised a repair on 22 March 2022 and sent a roofer on 20 April 2022
3. its roofer told it that a carpenter needed to remove the decking to inspect the drain outlet
4. it apologised for the confusion and cancellation of an appointment on 1 September 2022
5. it arranged for a drainage contractor to jet the guttering and downpipes
6. it hoped the contractor could resolve the blockage without the need for a carpenter to attend
7. it re-arranged the carpenter for 7 October 2022.
On 12 October 2022 the resident escalated her complaint. She expressed dissatisfaction that the carpenter did not attend on 7 October 2022 as planned. On 21 December 2022 the resident complained again about mould and water damage caused by the balcony drainage.
The landlord provided its stage 2 response on 5 January 2023. The landlord said:
1. it was sorry it had been unable to quickly clean the balcony and find out the cause of the water pooling
2. the resident was let down by the poor attendance of contractors and poor communication
3. there had a delay in the complaint allocation because of a backlog
4. it accepted it had provided an “erratic” service with cancelled appointments
5. it should have known it was responsible for the drain
6. it had booked a carpenter for 9 January 2023 to remove the decking and replace it
7. it agreed to ask a drainage contractor to check the waterflow to the outlet
8. it would investigate the cause of the staining on the balcony above her
9. it accepted its service standards were not met
10. it awarded £700 compensation for its failures, including £540 for the resident’s time, effort and inconvenience
11. it awarded £20 in shopping vouchers previously for the missed appointment on 7 October 2022.
On 6 January 2023 the resident told the landlord that she believed there was a latent defect in the balcony design. On 8 January 2023, the resident told the landlord that:
1. the mould damage was to the underside of her balcony and not above her
2. this was caused by poor drainage
3. the balcony underside had a crack that needed fixing, and the balcony needed painting
4. the landlord needed to remove moss and mould from the floor, balcony walls and the balcony underside
5. she refused the £20 voucher for the missed appointment as it was inadequate
6. the £540 did not compensate her for the lost income following the missed appointment of 7 October 2022.
On 25 January 2023 the landlord sent a review of its stage 2 response. It said:
1. it took time to get a suitable contractor to do the investigations and work needed
2. contractors failed to attend which delayed the re-fit of the decking
3. the drainage contractor confirmed there was a defect with the balcony that led to water not draining
4. it contacted the builder and asked it to work with its maintenance team to adjust the balcony and improve drainage
5. it awarded a further £350 in compensation for the extra time, effort, and inconvenience caused.
The landlord told the resident on the same day that it was exploring:
1. asking a contractor to level the balcony after it checked this would not affect any guarantees or insurance
2. getting information to make a defect claim.
On 31 January 2023, the landlord’s surveyor inspected the property. The surveyor concluded there was no structural issue but there was a defect with the balcony. The landlord sought a second opinion. A second surveyor visited on 2 August 2023 and concluded that there was no latent defect. The landlord went ahead to erect scaffolding and paint the resident’s balcony on 24 November 2023.
The resident disputed the second surveyor’s findings and asked the Housing Ombudsman to investigate. The resident also complained to this service about the conduct of the surveyor and the landlord’s decision to erect scaffolding on 24 November 2023.

Assessment and findings

Jurisdiction

The Housing Ombudsman Scheme outlines what complaints this service can look at. This is known as the Ombudsman’s jurisdiction. Paragraph 42(a) of the Scheme provides that the Ombudsman may not consider complaints that have not exhausted the landlord’s complaint procedure. The resident’s complaint about scaffolding and the surveyor’s treatment of her have not exhausted the landlord’s complaint process. These complaints are therefore not in jurisdiction under paragraph 42(a) of the Scheme.

The landlord’s obligations

The lease states that the landlord is responsible for the structure of the resident’s property, including the gutter, drain and balcony. The agreement states the resident is responsible for the repair of balcony fittings, including the wooden decking.
The landlord’s repair policy required it to complete any repairs at the earliest appointment.
Usually with new build properties there is a two-year ‘defect period’. The builder must usually resolve defects that arise during this period. This is unless they are maintenance issues, or they are caused by the normal use of the property.
Defects that arise after this two year ‘defect period’ are known as latent defects and a warranty provider usually covers these. A latent defect is a hidden defect that is not discoverable by a reasonable inspection.
The warranty provider may put right any defects after two years and up to 10 years. This is normally where the builder did not build in line with the provider’s requirements.
A landlord is not normally responsible for a defect unless:
1. it has caused disrepair to something it is responsible for and
2. the only way to offer a full, effective, and lasting repair is to repair the defect.

The landlord’s handling of the balcony repairs

On 2 March 2022 the resident reported water pooling and disrepair of guttering. The landlord sent a roofer on 20 April 2022. This was reasonable as this was a suitable tradesperson to deal with gutters. The response was in line with the resident’s repair policy. The landlord’s repair notes do not say what the roofer found or did. This is a record-keeping failure as the landlord ought to have created and maintained adequate and clear records.
The roofer reported that the landlord needed to send a carpenter to remove the decking. This was a reasonable step to take to allow the landlord to check the balcony surface and drain outlet. However, the landlord cancelled the visit it booked for 1 September 2022. This was without notice to the resident. This was unreasonable.
The landlord told the resident that it would arrange for a drainage contractor to jet through and clear all the downpipes. The drainage contractor turned up on either 18 or 19 October 2022 without an appointment. This was not appropriate as landlords should agree appointments with residents in advance. This also meant that the landlord could not complete the job and the resident experienced frustration.
The drainage contractor attended again on either 20 or 21 October 2022 but was unable to jet the drain outlet. This was because the carpenter had not attended on 7 October 2022, so the decking concealed the balcony surface and drain. The landlord ought to have known the drainage contractor could not jet the drain without access. It is also a failure of record keeping not to maintain clear records of the exact date of attendance.
The landlord arranged for a contractor to perform a mould wash on 10 November 2022. This was a reasonable response to the resident’s report of mould.
Between October 2022 and January 2023, the landlord tried to find a drainage contractor to re-attend. It contacted different contractors, but none would commit to the work. In January 2023, the landlord secured a contractor after inviting a tender however it is unclear why this was not done earlier.
The Ombudsman also notes that between March 2022 and January 2023, the landlord was unable to send out a surveyor. This was due to an acute lack of surveyor availability. The landlord sought to obtain a contractor to deal with a blockage however it would have benefited from a surveyor looking at the balcony.
The Ombudsman recognises that the delay in getting a drainage contractor would have caused frustration to the resident. It is the Ombudsman’s opinion there were unreasonable delays in obtaining either a surveyor or a suitable contractor to attend.

The landlord’s handling of the resident’s claim of a latent defect

The resident told the landlord on 6 January 2023 that she believed the balcony had a design fault. She reported that wooden batons supporting the decking had affected the drainage.As the property was built in 2017 and signed off on 13 August 2019 this was outside the ‘defect period’.
It was the landlord’s responsibility to consider the report and decide if there was a latent defect. If it decided there was a defect that the builder was liable for it could make a referral to its special projects team. If it believed there was no latent defect but an issue, then it could decide to refer to its major projects team.
On 6 January 2023 the landlord’s surveyor concluded the batons were to lift the decking off the balcony floor and help with drainage. However, the surveyor noted from photographs there was debris on the balcony that could restrict drainage. The surveyor recommended the clearance of the debris.
On 8 January 2023 the resident told the landlord that the underside of her balcony had a crack and mould or moss on it. The landlord told the resident the next day that it would arrange for a full inspection. This was a reasonable response to decide if this was the landlord’s responsibility to repair.
The landlord told the builder about the resident’s concerns on 9 January 2023. It was reasonable of the landlord to try and involve the builder and alert them to a potential latent defect. However, the next day the landlord accepted the builder’s opinion that there was a blockage.
On 12 January 2023 the resident sent the landlord photographs of other balconies of flats in the development. These had similar markings on the underside of the balconies to those on the resident’s balcony. The resident believed this was further evidence of a design fault.
The landlord contacted the builder again on 12 January 2023 and asked if it could send out a surveyor to investigate. This was appropriate as the landlord had considered additional evidence that highlighted a potential latent defect.
Despite this the landlord continued to deal with what it believed was a blockage. This was after the builder said on 16 January 2023 that it believed there was a blocked drain. This was reasonable as the landlord was responsible for any disrepair of drainpipes and the balcony.
The drainage contractor that attended on 18 January 2023 removed debris on the balcony and jetted the drain. It found no blockages after checking the water flow from the drain. However, the contractor noted the balcony was holding water in places. The drainage contractor suggested that this was a design fault.
The Ombudsman understands that the carpenter who attended also concluded there was a design fault. Although this service has not seen a copy of their findings, we have seen an email from 9 January 2023 referring to them. This email refers to the resident’s balcony collecting rainwater and protruding from the main building. The email also refers to the carpenter concluding the balcony had insufficient drainage.
The landlord concluded that the drainage contractor’s report and the carpenter’s findings were their opinion but not based on evidence. The landlord was entitled to take this view however it should have communicated this to the resident.

The landlord’s response to the latent defect post-complaint

On 25 January 2023 the resident reported to her landlord safety concerns about the balcony structure. The landlord arranged for a surveyor to visit on 31 January 2023. This was an appropriate step for the landlord to take. The surveyor who inspected found no structural problem. It was therefore reasonable for the landlord to have treated the resident’s safety concerns as resolved. However, there is no evidence the landlord communicated this to the resident which was a failure.
The Ombudsman notes that the surveyor who attended believed that there was a latent defect as the water did not drain properly. The landlord took no action between the surveyor’s visit and 2 August 2023. This lack of action without any explanation was unreasonable. Based on the surveyor’s findings the landlord could have:
1. made a latent defect referral to the builder via its special projects team
2. considered sending a claim to the warranty provider, as the builder had disputed there was a latent defect.
There is no evidence that the landlord took any further action until 2 August 2023. On this date, the landlord sent another surveyor who concluded there was no latent defect or problem with the drainage. The surveyor believed that the drainage issues were caused by the resident’s attachment of an acrylic sheet to her balcony railings. The surveyor also believed that the water on the balcony was normal.
The landlord was also entitled to agree with the second surveyor’s findings. However, it should have explained to the resident why it relied on this over the findings of the carpenter, drainage contractor and first surveyor. This would have shown a fair and transparent appraisal of the evidence given the conflicting findings.
The landlord told the resident on 3 August 2023 that there was no latent defect. It promised to update the resident once it had discussed the drainage report with the builder. There is no evidence the landlord did this which was a service failure.
The landlord should have also asked the resident to remove the acrylic sheet. This was because it had concluded this was the cause of the drainage issues and water damage. It should have also explained to the resident what it would do to monitor the situation once the resident removed the sheet. Specifically, to see whether the removal of this resolved the drainage issues. This would have been reasonable to allow the landlord to assess if it needed to do further work. The Ombudsman has not seen the landlord took this step.
The landlord agreed to paint and fix the rendering on the underside of the resident’s balcony. This was following the resident’s disclosure on 8 January 2023 that this needed doing. On 25 January 2023, the landlord told the resident that it would delay any paintwork until it completed any necessary repairs. In the Ombudsman’s opinion, this was a reasonable approach for the landlord to take. This is because it would not make sense to do decorative work before repair work. There was a delay in the landlord completing the painting to 24 November 2023.

The landlord’s complaint handling

The landlord has a 2-stage complaint policy. The policy states that the landlord will provide a stage 1 complaint response within 10 working days of it logging the complaint. The landlord will provide a stage 2 complaint response within 20 working days of a resident escalating a complaint.
The resident complained on 30 August 2022. The landlord provided its stage 1 complaint response on 1 September 2022, which was two working days later. This was appropriate as it was in line with the landlord’s policy.
The resident escalated her complaint on 12 October 2022. The landlord provided its stage 2 complaint response on 5 January 2023. This was 58 working days after the resident escalated her complaint. This was not appropriate as it was not in line with the landlord’s policy.
After the complaint’s process the landlord agreed to add the £20 to the compensation for the missed appointment on 7 October 2022. It also agreed to increase the compensation for a loss of use of her balcony during January 2023.
The landlord sent a review of its stage 2 response on 25 January 2023. Although this was not in line with its complaint policy the Ombudsman notes that the landlord intended to offer further redress through the review. In total, the landlord offered the resident £1,050 (£700 at stage 2 response and £350 in the review). The landlord’s responses showed a willingness to acknowledge its failures and to put things right.
The resident told the landlord on 8 January 2023 that she wanted compensation for loss of earnings from the missed appointment. However, the Ombudsman notes the landlord’s compensation policy did not allow for this. In the Ombudsman’s opinion, the increased offer made by the landlord fairly reflected any additional inconvenience caused to the resident by not having use of her balcony in January 2023.
The Ombudsman considers the compensation awarded by January 2023 (£1,050) was reflective of the award that we would have made for the failures. There is no evidence the resident lost income or holiday entitlement or provided such documentary evidence for the landlord to consider as part of the complaint. As such, it was not unreasonable that the landlord did not offer compensation for financial losses.
However, the Ombudsman is of the opinion that the landlord should pay the resident additional compensation for the period 25 January 2023 to 2 August 2023. This is on account of the landlord’s lack of action which caused the resident distress. This is because the landlord’s communication raised an expectation that the landlord would act.
While the landlord told the resident on 3 August 2023 that it had changed its position it did not adequately explain why it had. This lack of communication caused the resident frustration, disappointment and increased her distress. We have therefore made an order to reflect this. The landlord also delayed painting the balcony.

Determination

In accordance with paragraph 42(a) of the Scheme, the Ombudsman has not investigated the resident’s complaint about the scaffolding or the surveyor’s treatment of her, as these complaints have not exhausted the landlord’s complaint process.
In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s repairs to the balcony.
In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s complaint handling.

Orders

Within 28 days of the date of this determination the landlord must:
1. pay the resident directly an additional £400 compensation made up of:
  1. £300 for the distress and inconvenience caused by the landlord’s lack of action between 25 January 2023 to 2 August 2023 and the delay in painting the balcony
  2. £100 for the failures in complaint handling, for example, its failure to communicate why it had adopted the second surveyor’s findings over earlier findings which caused distress
Within 56 days of the date of this determination the landlord must:
1. conduct a drainage test of the resident’s balcony with the acrylic sheet and decking temporarily removed
2. write to the resident with the surveyor’s findings, if the survey reveals the acrylic sheet is responsible for the drainage issues the landlord should
  1. confirm this to the resident
  2. explain how the balcony meets the NHBC’s technical requirements for balcony drainage
3. if the survey and tests reveal the acrylic sheet does not affect the drainage or cause water damage the landlord must agree a written action plan with the resident which must:
  1. outline what actions it will take, including if it will refer the matter to its special projects or major projects teams
  2. what it will do to update the resident on any outstanding matters.