Norwich City Council (202115493)

REPORT

COMPLAINT 202115493

Norwich City Council

25 October 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 is about the landlord’s handling of:
   1. The leaseholder’s reports of damp at the property.
   2. The leaseholder’s complaint.

Background

2. The resident is the leaseholder of a ground floor flat in a block of six such properties. She does not live there herself – she lets the property out to tenants. In April 2019 she reported to the landlord that she had noticed “serious damp” in the bathroom and hallway and that an external drain appeared to be blocked. However, after the landlord had dealt with the drain the leaseholder reported that the damp persisted and that she considered the problem might be something more serious.
3. The landlord commenced investigations. It instigated a drains test and a water mains test. However, no defects were detected. Ultimately the landlord concluded, following the completion of the complaints process, that the problem was with the internal plumbing at the property which it asserted was the leaseholder’s responsibility under the terms of the lease. The leaseholder complained about the way the landlord handled these investigations. She raised issues centring around poor communication, delays and a failure on the landlord’s part to identify and repair the cause of the dampness.
4. In the landlord’s first complaint response it stated that it had been hampered in gaining access to the property to carry out preliminary tests and a follow up visit. It apologised for the fact it had not attempted to contact the leaseholder direct to arrange inspections when it was unable to prompt a response from her tenants. Further, the landlord confirmed that whilst its surveyor’s first conclusion was that there might be a fault with the damp proof course (DPC) at the property, his view had subsequently changed, and a water mains test was then commissioned. However, this required the occupants of all six properties in the block to offer access to their properties at the same time and this was proving difficult to arrange.
5. By the time of the landlord’s second complaint response, it stated it was looking to replace the water main and it did not accept there had been any delays of its making. It conceded, however, that it had not handled the leaseholder’s complaint within its stated time frames for which it apologised.
6. The leaseholder remains dissatisfied with these responses. She maintains the landlord caused significant delays due to its poor communication. She states it provided incorrect and inconsistent information and failed to follow its procedures when she complained. By way of remedy, the leaseholder has advised this Service that she wanted the landlord to resolve the damp issues and she wanted compensation for the delays, inconvenience, and her financial losses.

Assessment and findings

The leaseholder’s reports of damp at the property

7. The relationship between leaseholder and landlord is regulated by the terms of a lease dated 12 February 2007. Whilst this Service cannot give a binding legal opinion on the interpretation of this document, the following provisions are noted:
   1. 6.(1) The landlord promises to keep the structure and exterior of the building in repair and this includes “drains, water and other apparatus”.
   2. 4.(1) The leaseholder promises to keep the interior of the property in good repair.
8. When the leaseholder first reported the damp problem to the landlord it appeared to be an external issue and the landlord took action to unblock a drain. When this did not resolve the issue, the landlord carried out a further inspection, ordering a drain survey and a water main test. The water main test could not be completed according to the landlord because the leaseholder’s tenant failed to respond to communications and the case was effectively closed from July 2019 to March 2020.
9. The landlord has accepted that it failed to contact the leaseholder directly during this time to try to gain access to the property. Whilst the leaseholder asserts that it should have done so, it is noted that she gave the landlord her tenant’s contact details and so it is reasonable to conclude that she was aware the landlord would try to set up access via that route. However, irrespective of whether the landlord tried to make contact with the tenant or not (and there is a dispute about this), it’s acceptance that it should have contacted the leaseholder direct at this time was an appropriate admission to make. It is reasonable to conclude that this acknowledged service failure contributed to any delay in attaining access to the property and therefore identifying required works.
10. It is also significant that the landlord, who has responsibility for the building overall, let the matter drop for a period of around eight months between July 2019 and March 2020. Faced with a failure to secure access to the property, for whatever reason, the landlord could reasonably have been expected to consider what further action it could take to deal with a problem of this nature, which carried a risk of deterioration to a building it was responsible for, and which houses five other households too. There is no evidence it took any action, and it is reasonable to conclude that had the leaseholder not pursued the matter the landlord would have allowed the issue to persist and potentially become a much larger problem. 
11. There is no evidence that the leaseholder was told the matter had been closed and she states she only discovered this the following February (2020), when she chased matters up. The landlord’s surveyor attended the property again in March 2020 and it is reasonable to conclude the leaseholder’s contact took place as she has described and had the effect of provoking this action. The surveyor concluded there might be a problem with the DPC. The leaseholder says she was advised of this by the landlord on 2 April 2020, but only after she chased for an update having found out about the visit from her tenant. The landlord might reasonably have been expected to update the leaseholder at the time of the visit but has produced no evidence to show it did so.
12. No further action was then taken until July 2020 when a follow up visit took place. The landlord has explained that its activities were curtailed at this point due to the COVID-19 pandemic and associated lockdown and this is a reasonable explanation given this Service’s understanding of the adverse impact the pandemic had on the overall service delivery of member landlord’s at this time.
13. Following this visit the leaseholder confirms she spoke with the landlord on 3 August 2020 (its records show contact on this day too) and was told that its diagnosis of the problem had changed – it now suspected the damp was being caused by a leaking water main and a water main pressure test was therefore required. However, this would present a challenge as it needed all six occupiers in the building to allow access to their properties at the same time.
14. The leaseholder has complained about this change stating she was not told why the previous opinion was now considered to be inaccurate. In the Ombudsman’s view, where the cause of an issue is not immediately apparent a change of approach does not necessarily mean the previous approach was wrong.  Sometimes a process of trial and error or by way of elimination is necessary to get to the root cause of an issue.
15. The leaseholder chased the landlord for updates on 2 and 21 September and 10 and 28 October 2020, stating she (and her tenants) had heard nothing from the landlord’s contractor with a view to arranging this test. The landlord has produced no evidence to confirm any contact was made. On 29 October 2020 the leaseholder lodged her complaint about the delay. In December 2020 the leaseholder enlisted the assistance of her councillor, but it was not until the landlord’s first complaint response on 4 February 2021 that it confirmed its position.
16. The landlord stated it was still trying to arrange simultaneous access to all the properties. According to the chronology supplied to this Service by the landlord, the test was finally completed on 26 May 2021, some ten months after the landlord had decided it was necessary. In the Ombudsman’s view, this represented an excessive delay, even after giving some allowance for the landlord’s problems in arranging for full scale access to the building during a period of interrupted service delivery. By this point the leaseholder’s property was continuing to suffer with damp and now mould had developed too.
17. The landlord’s records show that following this the focus of communications with the leaseholder were on its handling of her complaint and in its second complaint response of 10 August 2021 it stated it was aiming to renew the water main completely – however it was once again waiting to hear from the leaseholder’s tenant to gain access to the property.
18. Whether the landlord (or its contractor) attempted to contact the leaseholder and her tenants at this time is very much disputed throughout this complaint, but it is noted that on 8 September 2021 the landlord emailed the resident asking for an updated telephone number and stating the one they had was not valid – but is not possible to determine, from the evidence, whether this was the fault of either party.
19. The landlord’s chronology details the conclusion of the situation as being on 14 September 2021 when its contractor attended the property and concluded the fault lay with the internal plumbing and was the leaseholder’s responsibility under the terms of the lease. The landlord has not produced any evidence to show when she was notified of this decision.
20. In conclusion, it took the landlord from April 2019 (when the issue was first reported), until September 2021 to diagnose the cause of the dampness – that is approximately 2 ½ years. This represented a significant delay even allowing for any problems in contacting tenants in the building, or because of pandemic restrictions, or because the cause was not immediately obvious. The landlord’s suggestion that it had not caused any delays was inappropriate. In the Ombudsman’s view it might have been expected to acknowledge this fact through the complaints process.
21. Further, whilst it has already been commented upon above that changes of approach might take place during investigations into an issue, it is noted that the final complaint response stated that the water main was to be replaced and presented that as the resolution to the leaseholder’s reports.
22. The Ombudsman is unable to assess the landlord’s position regarding the root cause of the damp/mould within the property, as outlined in the final complaint response, as this Service does not possess the expertise to make a decision as to the causes of repair issues within properties. Landlord’s are expected however to carry out sufficiently thorough investigations involving qualified persons into complex issues such as this within a reasonable timeframe so that any required remedial works can be identified.
23. It is also expected that landlord’s will provide customers with regular updates and clear guidance as to who is responsible and what steps will be taken to resolve an issue. In all the circumstances of this case however, the landlord has not provided evidence that its investigative process was sufficiently thorough or that it completed its investigations in a timely manner, with significant communication failures clearly contributing to these failures.
24. It is also of concern that the landlord’s position changed following the completion of the complaints process, with the leaseholder being considered responsible for works to internal plumbing, rather than the water mains. This new position was decided upon as the landlord’s subsequent investigation of the water main (14 September 2019) had not identified a leak. As this new position post-dated the complaints process under investigation, it is not something that can be assessed here and, in any case, the Ombudsman would remain unable to make a binding decision as to what had caused, or was causing the damp and mould.
25. Given the above conclusions, the Ombudsman’s view is that the landlord might reasonably have been expected to offer the leaseholder some compensation for its delays and for its admitted poor communication in recognition of the impact this has had on the leaseholder. Any calculation might reasonably have been based upon the stress and inconvenience caused to the leaseholder by the long-term uncertainty of the delays, together with an element of recognising her time and trouble in pursuing the issue.
26. In addition, all the time the landlord was dealing with this issue, the leaseholder was left under the impression that she did not need to do anything in terms of having the internal apparatus at the property looked at. Had she known this much earlier then it is reasonable to conclude that any internal damage to the property might have been minimised. No evidence has been provided to show what work the leaseholder ultimately had to have carried out, what remedial redecoration was required, what effect it had on her being able to secure tenants and so on
27. This Service offers guidance on how such remedies might be calculated, depending upon the severity of the service failings/maladministration, the time frame involved, and the extent to which the resident (leaseholder) has had to drive a response. Awards of between £250 and £700 are appropriate for prolonged failings, where the resident (leaseholder) is put to significant time and trouble in dealing with the landlord. In this case, the landlord might reasonably have offered compensation of £600, and that amount has therefore been ordered below. 

The leaseholder’s complaint

28. The landlord operates a two-stage complaints policy. It states that a full response will be provided within 15 working days from receipt of the complaint (five days for acknowledgement and a further 10 working days for a response). If the complainant is not satisfied, they have 15 working days to request an escalation to a second stage where investigations will be carried out at a more senior level.
29. Upon receipt of the escalation request, the landlord commits to acknowledging it within 5 working days. It then aims to provide a response within 15 working days thereafter – that is 20 working days in total. If further time is needed by the landlord at any point in the process, it commits to updating the complainant to this effect.
30. The resident lodged her complaint on 29 October 2020. According to the evidence, it was acknowledged by the landlord the next day and confirmation was given as to who would be dealing with it. The resident was told to expect a response within 15 working days, that is on or before 19 November 2020.
31. On 20 November 2020 the resident contacted the landlord again, stating the timeframe for this response had expired, she had heard nothing, and she wanted to therefore escalate her complaint to the next stage of the landlord’s complaints procedure. She calculated that according to the landlord’s policy she should now receive a response by 7 December 2020. In fact, the Ombudsman calculates that the time limit for response would have been 17 December 2020.
32. On 2 December 2020 the landlord emailed the resident, referring her to its complaint response of 16 November. However, this related to a separate complaint she had raised about a different property and was irrelevant to this one, as the resident pointed out by email the same day.
33. The landlord then did not provide its stage one response until 4 February 2021 some seven weeks late. The communication did not specifically state it was a “stage one complaint response” and this caused some confusion with the leaseholder as to where she was in the process. The leaseholder was dissatisfied and with the assistance of a Councillor, she learnt that she still needed to escalate to stage two, even though she thought she had already done so. Accordingly, she sent her detailed reasons to the landlord by email on 5 March 2021 and the landlord acknowledged the request, stating who was to consider it and that it would reply within 15 working days. The leaseholder was therefore entitled to expect a response by 26 March 2021.  
34. On 25 June 2021 the resident chased for a reply. The landlord responded on 14 July 2021 that it had sent the response on 12 April 2021 and attached a copy. However, once again the resident replied the same day pointing out that that was a reply to a completely different complaint on another of her properties and was not relevant to this one.
35. On 2 August 2021, in an internal email, the landlord noted that a stage two response had been drafted on 12 March 2021 but had never been approved and sent out.  A stage two response was then sent on 10 August 2021, over four months after the timeframe envisaged and which did not fully respond to the points raised by the leaseholder in her escalation request.
36. There were delays and mistakes made by the landlord in its handling of this complaint, and it failed to comply with its own policy which was inappropriate and represented a service failing on its behalf. The leaseholder was put to inconvenience in pursuing the matter. Whilst the landlord apologised for the delay, it might reasonably have been expected to offer some compensation to acknowledge the impact this had on the leaseholder. This Service’s remedies guidance sets out that awards of £50 – £250 are appropriate where there has been a failing but it is of shorter duration with no long-term consequences. An order for compensation of £200 has been made below. 

Determination

37. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its handling of the leaseholder’s reports of damp at the property.
38. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its handling of the leaseholder’s complaint.

Orders and recommendations

Orders

39. The landlord to pay compensation of £800 to the leaseholder (£600 for delays and poor communication and £200 for its complaints handling).
40. The landlord to evidence to this Service within 28 days of this report that it has complied with this order.