Notting Hill Home Ownership Limited (202001957)

REPORT

COMPLAINT 202001957

Notting Hill Home Ownership Limited

22 March 2021

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 the resident’s:
1. reports of a leak from his roof;
2. associated formal complaint.

Background and summary of events

The resident’s property is a top floor flat which he leases under a shared ownership agreement with the landlord. In turn the landlord leases the building from the freeholder under the terms of a head lease. Any obligations on the freeholder’s part contained in that head lease, are discharged, on its behalf, by a management company. That company has then contracted with a further company (the managing agent) to perform these functions on its behalf.
On 27 January 2019, the resident emailed the managing agents direct, reporting that he could hear water running on his ceiling. He explained that he had had similar issues in the past when a whole bedroom ceiling had needed to be replaced. He requested an urgent repair and it was agreed that his details would be passed to a contractor who would then contact him direct.
On 11 March 2019, the resident emailed the managing agent again, reporting that the contractor had been to his property once, but he had not heard anything further and now a new large water mark had appeared on the other side of his bedroom ceiling. He chased for a response on 15 March 2019, stating that both bedrooms were now affected. The managing agent replied, copying in a member of the landlord’s staff, saying that it had contacted the contractor who had attended previously and had been advised that the problem was thought to be a condensation issue due to lack of insulation between the resident’s ceiling and the roof. It agreed to contact a surveyor to revisit as the sound of water dripping suggested the problem might not be condensation after all.
The managing agent then reported that the surveyor did wish to look again at the property and they were supplied with the resident’s mobile number. However, on 20 and 27 March 2019 the resident emailed the managing agent again, copying in the landlord and the management company, as he had heard nothing further. The managing agent sent a reminder to the surveyor.
When the surveyor visited it was agreed that hatches would be installed in the ceiling so that observational access could be secured to the roof space. The resident reports that after much chasing by himself the hatches were eventually installed on 29 May 2019.
In early June 2019, the resident was contacted direct by a surveying firm instructed to now investigate the leak and arrangements were made for a visit on 4 July 2019. A report was prepared which stated that the surveyor had been unable to replicate the ingress of water during a flood test on the roof. The conclusion was that it was possible that water had bypassed the guttering when snow had accumulated on the roof when the initial leak occurred in January 2019 and there had been none since. A recommendation was made to monitor the situation and ensure the drainage outlets were routinely maintained and cleared of debris.
The managing agent sent a copy of the report to the resident on 24 July 2019, copying in the landlord. It indicated that it would be happy to help with the repairs to the ceiling and asked whether he wished it to obtain quotations for the work. The resident replied to both that he would be happy for the managing agent to arrange the work and queried whether any other work was required before the internal damage was repaired, particularly as the leak on the other side of the room had not been considered. The managing agent responded that the issue would be considered during the remedial work. The resident reports hearing from a different member of the landlord’s staff at this point who confirmed they were liaising with the managing agents and chasing the issue.
However, by November 2019, the resident had heard nothing further and, on 22 November 2019, he emailed the landlord, managing agent and management company asking for an update. The managing agent responded (to all) that it had been in touch with the landlord and “was under the impression that this was all in hand”. However, the landlord’s staff member had left, and the quotations had not been obtained but it offered the resident the details of three possible contractors who may be able to assist him. The resident responded that he was unhappy with the delay and its explanation and he did not consider that he should have to deal with sorting the work out when he paid a service charge for the building to be maintained.
Quotes to redecorate the ceiling were then obtained but, on 6 January 2020, the resident emailed the management company, the managing agent and the landlord to report that there were six separate sources of water seepage in the roof space and there was clearly a problem with the roof itself. He invited them to repair it “once and for all” and supplied video footage of the problem.
The managing agent replied, highlighting that it had been advised to monitor the situation and that the problem had been put down to condensation but under the circumstances it would contact a contractor to visit the property. In the meantime, it invited the resident to make an insurance claim.
Meanwhile, a further inspection was carried out that day when the dripping water was witnessed, and it was indicated to the resident that a surveyor’s inspection would be required and that should be carried out the following week. The resident requested that all involved monitor developments so that he did not have to keep chasing for progress to be made.
Having received no response, the resident emailed all concerned on 17 January 2020 indicating that he wanted their complaints procedure. The managing agent emailed straight back and provided its complaints procedure. It stated that it was waiting for the second report, but its view was that this was not a roof leak but a result of condensation arising from a design fault with the building.
On 20 January 2020, the resident emailed the managing agent, the management company, the landlord and the landlord’s complaints team. He reported that he could hear water dripping onto his ceiling constantly, it was permeating into his bedroom, the window frame was “completely soaked”, the electric radiator underneath it had stopped working, and it was now “infiltrating the walls”. He asked when the second report would be available as the issue had been ongoing for over a year.
On 22 January 2020, the managing agent emailed the resident (and all involved) to state that the work being recommended did not relate to the roof. Instead, it was suggested that a gutter needed to be installed to catch water (condensation) and channel it through an external overflow pipe. Its view was that this work related to the property itself, (rather than the fabric of the building) and under the terms of the lease, was the responsibility of the resident and the landlord. It was not, therefore, going to instruct any works to be done unless and until it was proved that the freeholder was responsible for them.
The resident therefore contacted the landlord asking it to investigate the cause of the leak(s) and noting that a similar problem had arisen in 2014/15 and had been dealt with under the building’s insurance without difficulty.
On 23 January 2020, the resident supplied the landlord with the report from July 2019 noting that he had spoken with it that day by telephone. On 31 January 2020 he chased the landlord for a response by email. He reports speaking to the landlord’s staff member on 7 February 2020, who stated they needed to consider the terms of the head lease, but that subsequent attempts to make telephone contact (via the landlord’s call centre) on 18, 20, 21, 26 February and 5, 9 and 16 March 2020 were unsuccessful, with promises of returned calls not met.
The resident emailed the managing agent, its insurance contact, the management company and the landlord (including, separately, its complaints contact) on 17 March 2020. He reported that, after twelve months, he was told the issue was with condensation rather than a roof leak and that this meant the landlord had responsibility for repair and not the managing agent. He reported extensive internal damage to his property and stated that he had been able to hear water dripping constantly on his ceiling for weeks. He reiterated that it was dripping on the carpet, infiltrating the walls, had caused his radiator to stop working and his bathroom tiles were loosening with damp behind them. His understanding was that the landlord was meant to be liaising with the managing agent but he had heard nothing from it for over four weeks even though he was chasing it two or three times a week. He asked for somebody to update him on the situation.
On 18 March 2020 the resident emailed the member of the landlord’s staff he had spoken to in February 2020, asking for an update on the leak situation and asking why his calls from the last four weeks had “been ignored”. On 28 April 2020 he sent a further email asking why he had not heard anything further. He stated that, whilst he had originally reported the matter direct to the managing agent, after twelve months they had denied responsibility for the repair. However, during this time, the landlord had been copied into communications, was aware of what was going on, but had not “bothered to get in touch with me” and that when he contacted it, he was ignored. In the interim, the damage to his property was continuing and he considered nothing was being done about it. He requested an urgent update.
On 5 and 13 May 2020 the resident reports telephoning the landlord’s call centre and being promised calls back within 24–hours but these did not materialise. On 28 May 2020, the resident completed the landlord’s online complaint form, reporting that during January 2020 he had telephoned the landlord’s offices multiple times to speak to his housing officer without success and promised call backs did not happen. Eventually, in February 2020, he managed to speak to the member of staff who said they would check the terms of the lease about repairs but, between then and now, he had heard nothing further, despite repeatedly calling and leaving messages. He stated that he had also emailed without success.
The resident confirmed that the reason he was trying to get a response from the landlord was because of a leak issue which he had been liaising with the managing agent about. He confirmed that correspondence had been copied to the landlord and it was aware of the situation. The managing agent had now concluded that the landlord had responsibility for the repair. He wanted the matter sorted out and an explanation for why the landlord had “been ignoring me for 4 months”.
On 1 June 2020, the landlord acknowledged the resident’s complaint and stated that it had been referred to the “correct team” for them to deal with. However, on 2 July 2020, the resident emailed the landlord, its complaints team, and the managing agent noting that the landlord had not responded to his complaint. He stated that it had taken twelve months for the managing agent to “pass the buck to (the landlord) who have been ignoring me for 5 months”.
The managing agent responded that it had made its position clear in its last email. It considered the problem was not with the roof but with condensation due to insufficient insulation and, under the terms of the lease, the ceiling formed part of the resident’s property and was not the freeholder’s responsibility.
The resident emailed all parties on 14 July 2020 and suggested that the roof, as a whole, needed surveying and not just the area above his flat (as his neighbour was experiencing a similar problem). The managing agent responded that, at the resident’s request, it would appoint another surveyor on the landlord’s behalf and suggested a choice of three.
On 29 July 2020 the resident replied (to all) noting that the leaks seemed to coincide with heavy rain and cold weather, and he doubted they could be solely attributed to condensation. He accepted the suggestion of a further survey to review the situation. This was arranged for 7 September 2020 and, on 14 September and 6 and 12 October 2020, the resident chased the report.
In the meantime, on 6 August 2020, this Service contacted the landlord referring to the resident’s complaint of 28 May 2020 and asking that it be addressed. The landlord responded on 7 August 2020 accepting that the complaint had not been formally responded to and stating that it would contact the resident as a matter of urgency.
In the landlord’s stage one response of 16 August 2020 (incorrectly dated 16 June 2020), it identified that the complaint concerned two key areas and confirmed its position as follows:
1. The resident had suffered a leak to his property which had not been resolved – it disagreed with the managing agent and asserted that the problem was actually with the roof so was the freeholder’s responsibility under the terms of the head lease. It committed to liaising with the managing agent to get this accepted and acted upon.
2. The landlord had taken too long to respond to him about it – It accepted that it had not responded to the resident’s emails and telephone calls in accordance with its published timescales. It was taking measures to improve its response times and offered £50 compensation by way of apology.
The resident submits that this complaint response only came to his attention after he contacted the landlord with a query about the service charge in September 2020. He remained dissatisfied following this and, on 21 September 2020, he asked for the complaint to be escalated to stage two. He said the managing agent had not been contacted by the landlord, as promised, and the landlord’s statement that it would ask it to undertake further investigations had been “a lie”. He said he had been “ignored” for six months, he doubted the complaint response had been sent at the time suggested at all, and the amount of compensation offered was “ridiculous”.
In the absence of a response, the resident chased the landlord on 6 October 2020. It responded on 12 October 2020 that it would escalate the complaint to a review and the resident would be contacted further “within a week” to discuss that in more detail.
Also on 12 October 2020 the managing agent sent to the resident the contents of a report that had been made following the most recent inspection, copying in the landlord, its complaints team, and the management company. Its conclusion was that the problem did lie with the roof, namely the guttering, and a schedule of suggested works was set out to resolve the issue. The resident responded a few minutes later, asking what would happen about the damage to the inside of his property. He reported that the ceiling needed replacing in both bedrooms, the main bedroom window frame was mouldy, “probably rotten” and this was affecting a heater and the electrics to it. These items would need replacing and there was a water mark on the bathroom ceiling and loose tiles which had been undermined by the damp.
The managing agent responded that it would need two quotes and to supply these to its insurance claims department. The resident chased the situation by email on 3 November 2020 and reported on 6 November 2020 that the leak was now affecting his living room, which was on the other side of the building. The managing agent confirmed that the works were going through a tendering process.
In the landlord’s stage two response of 16 November 2020, it confirmed its position as follows:
1. It placed responsibility for the delay in identifying and remedying the leak on the managing agents whose surveyor had now diagnosed the issue and work required. It stated that the resident had been “mistakenly pointed in the wrong direction” regarding responsibility for the situation;
2. It had contacted the managing agents on two occasions to request that the resident be updated as to what was happening with the works, particularly with regard to a timescale;
3. It offered its assistance in making an insurance claim for the “make good” work necessary to resolve the damage within the property;
4. A formal complaint was to be raised by the landlord to the managing agent in respect of its actions, with a request that it nominate a senior staff member to take ownership of the issue going forward. If this did not bring about an improvement in service, it would complain to the freeholder direct. It accepted that this was too late, however, to change the issues the resident had faced;
5. On the question of the time it had taken to correspond with the resident, it again accepted that there had been a failure to reply to emails and telephone calls. It also agreed that the resident had had to work hard to engage the managing agent in the absence of any assistance from the landlord. It accepted that it could have taken a more proactive approach to ensure the resident received the correct information about repairs responsibilities earlier then he did;
6. It apologised for its service failure regarding its communication and offered increased compensation of £250;
7. It understood that the resident was waiting for a timetable from the managing agent and was taking an insurance claim against its insurance for the internal damage to his property;
The resident then chased both the managing agent and landlord on 4 December 2020, with regard to the outstanding repairs. The managing agent responded that the works were going to cost over £13,000 and needed the approval of the company’s board of directors.
On 8 and 11 December 2020 the landlord provided further updates, concentrating on the complaint it had now made to the managing agent about its handling of the situation. It reported that if this did not prompt any progress it would consider taking legal action. It also confirmed that the freeholder and the management company were being advised of the situation. In early January 2021, the landlord chased the managing agent on progress again.
Emails then passed between the resident and the managing agent on 12 January 2021 (copied to the landlord) which debated there being two problems – the drainage system and the issue of condensation. The current works were to resolve the drainage issue but there might also be other work required to the insulation of the building to deal with condensation. The cost of the latter might fall on the individual leaseholders concerned rather than forming part of the service charge. The resident replied that he could not understand why both issues could not be considered together to come up with an overall solution. He suggested there be a further inspection with this in mind. This was agreed and arranged for 19 January 2021 to look at the inside of the flat as well as the roof.
On 22 January 2021 the managing agents confirmed to the resident that the works would be “covered” by the service charge and were due to start shortly. However, by 27 January 2021 they had not begun, and the resident chased the position, to be told the weather was delaying them. Before they could be completed, the resident reported new patches of damp in his property and non-stop dripping of water to both of his bedrooms.
Finally, the managing agent reported to the landlord that the works to the roof had been completed on 12 February 2021.

Agreements, policies and procedures

The landlord leases the estate of flats in which the property is situated from the freeholder. Their legal relationship is set out in a lease agreement dated 9 March 2006 (the head lease). It sets out as follows:
1. The landlord promises to keep the property in good repair, condition and decoration. However, the property leased to it does not include the underside of the floor, the upperside of the roof, or the exterior or loadbearing walls;
2. The landlord promises to give the freeholder written notice of any defect or want of repair in the Property which is the freeholder’s responsibility;
3. The management company promises to supply “estate services” to the landlord, including the repair and maintenance of the exterior of the roof and the structure of the building. The landlord is required to pay a service charge and insurance contribution.
The legal relationship between the resident and the landlord is set out in an lease dated 7 August 2006. It contains the following provisions:
1. The resident promises to keep the premises in good and substantial repair, condition and décor. If he fails to do so, the landlord can do the work and demand payment back from the resident;
2. The landlord promises to maintain, repair and decorate “the common parts” – which are set out as the entrance, landings, storerooms, hallways, lifts, stairs and other parts being used in common with the occupiers of other flats in the building;
3. The landlord promises to use its best endeavours to enforce the terms of the head lease against the freeholder. It also promises to pay the service charge and insurance contributions it is required to make to the freeholder under that agreement.
4. The landlord can charge the resident a service charge to include the cost to it of the service charges and insurance contributions it has to pay to the freeholder under the head lease.
The landlord’s complaints policy sets out that once a formal complaint has been made, it aims to provide a response within ten working days. If the resident remains dissatisfied, they can request a review which will be carried out by a more senior staff member. Their stated aim is to complete the review within 20 working days.
The landlord’s compensation and goodwill gesture policy states that the level of compensation for distress and inconvenience suffered as a result of a service failure can be up to £250. However, this might be exceeded where there has been “exceptional hardship” and a higher payment is appropriate.

Assessment and findings

The leak

The legal situation relating to the resident’s property is complicated by the fact the landlord is itself a tenant of the freeholder. The landlord has set the legal position out to this Service as follows: “The obligations in both (the resident’s) under lease and (the landlord’s) head lease with the Management Company delegate the management of the estate to (the Management Company) and they have in turn chosen to delegate that responsibility to (the managing agent). Due to this legal structure (the landlord) is unable to undertake any repairs and must rely on (the managing agent) …. to fulfil their repair obligation of the roof to resolve the leak.”
This Service cannot offer a legally binding decision as to how the head lease and shared ownership agreement should be interpreted. The resident is, of course, entitled to take independent legal advice in that regard should he wish to do so. This Service has noted, however, the position that if the freeholder effects repairs to the part of the building that is not leased to the landlord (effectively the structure including the roof), it is entitled to recover the costs from the landlord by way of a service charge, under the head lease. The landlord, in turn, can include that cost in its service charge to its residents under the shared ownership agreement.
What is apparent, therefore, is that the nature of the leak was the determining factor in deciding whether the cost of its repair should be borne by all of the residents of the estate the property is situated in (via the service charge) or by the resident alone. The shared lease agreement records that he is responsible for repairs to his property and that includes the ceilings. However, the nature of the leak, its timing and frequency lead the resident to the conclusion that it was a problem with the roof itself, the repair of which he expected to be covered by the service charge and organised by the managing agents/landlord. He was aware that a fellow top floor resident was experiencing the same problem which helped form his view.
The resident accepts that, initially, he reported the situation to the managing agent alone. Had matters unfolded as he expected them to, the question of whether the landlord should have been involved or taken ownership would not have arisen. The landlord has stated to this Service that it was not made aware of the situation until July 2019, some six months after the leak was first reported, but the evidence shows that it was copied in to email correspondence from March 2019. However, at that stage the managing agents appeared to be dealing with the situation and it is understandable that the landlord had not been actively involved until some months later.
By November 2019, the resident had not heard anything further about the repairs to his ceiling. The evidence shows that he was under the impression they were to be covered by the service charge. The distinction between whether this was because it was the freeholder’s job and it was entitled to pass on the cost, or because it was the landlord’s job and it was entitled to pass on the cost, was not one that he was aware of. Further, there is no evidence that the landlord had contacted him in the meantime to advise that the responsibility for internal repairs to his property was his, at his own expense.
It is reasonable to conclude that the landlord did not make this representation to the resident because, as the landlord stated later on, its view was that it was the roof that was the problem, not condensation affecting the resident’s internal ceiling. Accordingly, the landlord’s view was that the repair should have been addressed by the managing agent, and the cost of it passed on by way of service charge. It did not need to advise the resident to arrange and pay for it himself.
There is no evidence to show that the significance of what was causing the damage to the resident’s ceilings was explained to him until at least twelve months after he first reported the situation to the managing agent. Given that the landlord had formed the view the managing agent should have been dealing with the repair, it might reasonably have been expected to show some evidence of it liaising with that agent and chasing the matter up between July and November 2019. By that point, the agent thought it was just the matter of an internal repair and that the landlord was helping the resident comply with what was, in its view, his obligation. Indeed, the evidence shows some confusion on the managing agents’ part when the resident asked it to sort out the internal repairs in November 2019 when it became apparent the landlord was not doing so.
Once the situation became clear to the resident, in early 2020 he made a great deal of effort to try to engage with the landlord to enlist its help. He considered it should have been managing a roof repair. In fact, it should have been enforcing the provisions of its headlease against the freeholder. Either way, the landlord had full knowledge at this point of what the situation was and might reasonably have been expected to take ownership of resolving the matter.
It was not until a further survey report was obtained in early October 2020 that the managing agent conceded that the roof was the problem, so the repair would be managed by it and the cost included in the service charge (with the resident’s internal damage being dealt with under the buildings insurance). This only came about because of the tenacity of the resident in chasing up all concerned and insisting on further investigations.
There is little evidence of the landlord doing anything during this period. It stated that it would check the terms of its head lease in February 2020 but there is no evidence of it advising the resident of the outcome of this action. It claimed in August 2020 that it had been liaising with the managing agent but there is no evidence of this. The offer it made in its second complaint response to pursue a formal complaint against the managing agent and to offer assistance with sorting out the internal repairs to the resident’s property was made too late and did not adequately address the difficulties and delays experienced to date.
The resident was put to considerable inconvenience, distress and frustration over a prolonged period of time. Further he had to live with the consequences of the leak in his home and the situation was exacerbated by the landlord’s complaint handling (see below). The landlord has correctly accepted that the service it offered to the resident regarding this matter has fallen short and offered £250 compensation but this did not sufficiently reflect the distress and inconvenience caused (see below).

Complaints handling

The resident first copied the landlord’s complaints team into the email correspondence that was passing back and forth in January 2020. However, there is no evidence a formal complaint had been made at that time and it was reasonable that the landlord did not treat this communication as such.
Once the resident had completed and submitted the landlord’s formal online complaint form on 28 May 2020, its complaints policy should have been applied. This means a response should have been given to the resident within ten working days, even if this consisted of asking for more time to investigate. The target deadline would then have been 10 June 2020.
When the resident finally became aware of a response in September 2020, it was dated “16 June”. The landlord has accepted to this Service that it should have read “16 August”, which was still more than a week after the Ombudsman had intervened due to a lack of response to the complaint, or the resident’s chasing email of 2 July 2020. This was substantially outside the timescale within which the resident could have expected a response.
The resident did not receive the letter of 16 June/August 2020 in any event, but there is no evidence from which this Service can reasonably conclude that this was due to a failing on the landlord’s part.
The resident remained dissatisfied and made an escalation request on 21 September 2020. According to the landlord’s policy, he should have received a response within 20 working days, giving a deadline of 19 October 2020. The landlord might reasonably have been expected, however, to acknowledge the request sooner than the deadline for its full response.
Unfortunately, the request met with no response until it was chased again. Once the landlord did acknowledge it, it still did not provide its response within the 20 working days set out in its policy, either from the original escalation request, or from the time it finally noted the request.
The landlord’s handling of the resident’s complaint failed to comply with its policy and was inappropriate. The resident had difficulty getting the landlord to engage with him and, given it was that reticence which represented the nature of the complaint itself, rendered the landlord’s service failing more significant. The resident’s communications evidence his frustration and distress. He was left in the dark regarding a situation which was of substantial importance to him.

Compensation

The Ombudsman’s awards of compensation are not intended to be punitive and do not offer damages in the way that a court might. In assessing an appropriate level of compensation, this Service takes into account a range of factors including any particular distress and inconvenience caused by the issues, the amount of time and effort expended on pursuing the matter with the landlord and the level of detriment caused by the landlord’s actions. Furthermore, the Ombudsman’s awards are generally moderate, taking into account the landlord’s need to make the most effective use of its limited resources as a social landlord.
As set out above the landlord has offered compensation to the resident of £250. According to its policy, this is the maximum that it usually offered unless there has been ‘exceptional hardship’. It is this Service’s view that, given the prolonged nature of the issue, the significant impact on the resident’s home, and the time and trouble he expended on pursuing the matter, the ‘exceptional hardship’ provision should be applied in this case and that an elevated compensation award should be made.

Determination (decision)

In accordance with paragraph 54 of the Scheme there was maladministration by the landlord in respect of its handling of the resident’s:
1. report of a leak to his property;
2. associated formal complaint.

Reasons

The landlord failed to engage with the resident when he suffered a leak in his property and failed to set out for him whose responsibility it was to repair it. Its view was that the problem was with the roof and this was the freeholder’s responsibility, but it failed to pursue this with the managing agent, either by persuasion, investigation or threatened enforcement of the head lease. It failed to respond to the resident’s communications and its handling of the resident’s complaint was inappropriate and considerably delayed. The resident has had to live with increasing damage to his home for longer than might otherwise have been necessary.

Orders

The Ombudsman orders the landlord to pay the resident £500 compensation in respect of the distress and inconvenience caused (£400 for the lack of action on the repairs and £100 for its poor complaint handling).

Recommendations

The Ombudsman recommends that the landlord should offer assistance to the resident in pursuing his insurance claim for the internal repairs to his property, if this issue has not already been resolved.