Optivo (202105816)

REPORT

COMPLAINT 202105816

Optivo

8 June 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

The complaint is about the landlord’s response to the resident’s reports of water ingress and damp at her property

Background and summary of events

Background

The resident is an assured tenant of the landlord, a housing association. She has a chronic illness and respiratory issues, and lives in the property with her daughter. The property is a two bedroom flat in a new four storey block, which was constructed around 2018.
The landlord’s defects procedure advises that a new property usually enters a Defects Liability Period for one year or 24 months after the developer has handed it over to the landlord, and confirms there are procedures by which defects are logged, classified and referred to the developer to rectify in agreed timescales. After an End of Defects inspection, the landlord takes responsibility for maintenance of rented properties and communal areas.
The landlord has a two stage complaints procedure and aims to respond at stage one within ten working days, while at a review panel stage the timing can depend on complaints volumes and the frequency of the panels, which are held monthly.
The compensation policy and procedure confirms the landlord awards compensation for service failures and 20% of net rent for the loss of a bedroom, but does not award compensation for insurance or personal injury claims. The procedure indicates that £250 is usually the maximum discretionary amount.

Summary of events

The information provided indicates that the resident moved into the property in May 2019. The resident then made reports in June 2019 that rainwater was not draining from a flat roof, and around October 2019 that water was not running away on her balcony, causing damp to her bedroom. The developer inspected on 28 November 2019 and their report noted:
1. The carpet directly below a balcony window had remnants of damp marks; was lightly moist, not wet, to touch; and no other areas were affected.
2. The external balconies were water tight and dry with no pooling evident, and from tests water ran away from the property, and from the balcony door threshold, towards an intended outlet.
3. The resident used moisture collection pots, however trickle vents were not being used, and where these were in use, no moisture or damp was found.
4. There was evidence, captured in photos, of moisture build up on internal faces of door frames, glass and ironmongery where trickle vents were not in use; until ‘modules’ became large enough to run down the internal face of the door and form the damp patch on carpet.
5. The damp carpet and roof water pooling issues were unconnected, as these were located at opposite ends of the development.
The landlord subsequently closed the repair after it was concluded no repair was required.
The resident then reported on 13 February 2020 that water ingress was still present after following advice to prevent condensation. In further contact with the landlord, she said that balconies and a nearby roof collected water and did not drain away property; her bedroom was colder than the rest of the property; furniture, furnishings and clothes were damp; her health had been affected; and she had been sleeping in her daughter’s room for five months. She raised concern about the developer’s response and said she was considering asking a damp surveyor to investigate where the water came from, but did not feel this was something she should have to do. Following this, the landlord raised a complaint.
The developer inspected on 27 February 2020 and concluded there was no evidence of water ingress on inspection of the walls, ceiling, door and window board. Their reported noted:
1. The carpet area immediately below the balcony door was moist, had damp marks and signs of water, which had reportedly been present for several months on and off but not grown or caused issues to a property below. The carpet was lifted and there was staining in line with the carpet staining, but the perimeter and threshold junction were bone dry. The carpet being bone dry around its own perimeter was noted to usually indicate the possibility of spillage or water being walked in from outside regularly.
2. The balcony was watertight and dry at the junction between the internal and external door threshold, despite rain that morning. Some balcony tiles were removed, no visible penetration was found, and a water test resulted in no ingress to the property. A window board was lifted to assess if there was evidence of water, and this was dry. There was a cavity on the underside of the board, where it was believed water would pass onto the ceiling of a flat below before it could reach the carpet and cause the damp patch present.
The landlord responded to the resident’s complaint on 11 March 2020. It noted the November 2019 inspection finding that it was believed there was a condensation issue and trickle vents were not being used. It noted she had then reported the issue was getting worse and was not using her bedroom. It noted the developer had inspected and was unable to find any leaks and determine the staining was caused by the building. It concluded that if she was unhappy with the developer’s findings, it could ask a surveyor to attend for a second opinion.
The resident confirmed to the landlord that she wanted a further inspection and on 19 March 2020, the landlord’s surveyor inspected. Their report noted:
1. There was or had recently been a leak which had led to decorations and carpet damage. The plasterboard on the right of the door was so soft that a finger could be put through it. There were issues with water and moisture underneath the step inside the door, and a lack of mastic to stop water, and a carpet gripper rod had almost rotted due to water contact.
2. It was recommended to confirm the leak was fixed; carry out checks to the wall to confirm it was not acting as a ‘tray’ for water; mastic the door threshold; reinstall board; repaint affected areas; and replace the carpet.
In March and April 2020, the information provided advises that the developer agreed to carry out further investigations, including cutting a hole in the wall, however the resident was self-isolating for twelve weeks due to Covid-19 and did not want visits during this time. In May 2020, the landlord advised the resident of the impact the pandemic was having on its services, and that she would be contacted when normal service resumed.
In June 2020, the landlord noted the resident was contacted by the developer to drill holes and was uncomfortable with this due to shielding. The landlord explained it was attempting to carry out the bedroom repair and asked if she could accommodate an inspection with the developer, if social distancing was adhered to and personal protection equipment was worn. The resident said she was uncomfortable with this and wished to wait until August 2020. The landlord emailed additional explanation that after its inspection in March 2020, the developer had been recommended to carry out their own assessment, after which matters would be reviewed and next steps decided. There were subsequent discussions between the landlord and developer about an inspection to review and identify defects that affected the resident’s property and another property, and it was proposed to postpone this until August 2020 unless the leak got significantly worse, due to the resident’s shielding.
Between 19 to 31 July 2020, the resident contacted the landlord to report issues had deteriorated. She explained her previous property had damp and mould which had worsened health issues. She said she had decided to sleep in her daughter’s bedroom when the water was discovered and had done this for the past ten months. She noted there were issues with the condition of the roof and balconies; three other properties had experienced issues with water ingress and damp; and she raised concern there were serious construction faults which the developer had been unable to see when attending previously. She completed a form to escalate the complaint and summarised that:
1. The damp to the bedroom floor had worsened and now spread to the hallway, living room and the other bedroom in the property. The issue had led to rugs and furniture legs absorbing moisture and clothes being affected by mould.
2. She and her daughter had health issues; developed blocked noses and coughs; and been mentally impacted.
3. The landlord had not been as concerned as it should be about issues such as water filled roof and balconies and had failed to challenge the developer.
4. She should be compensated for damaged items and the length of time she had raised her concerns, and the issue should be independently investigated.
Following the resident’s correspondence, the information provided advises the landlord decanted her from the property from early August 2020 until late October 2020. The landlord then co-inspected with the developer on 4 August 2020, and its summary noted there was poor workmanship and design that had led to water ingress and internal decorations being affected. The cladding did not reach the roof in places; there was no mastic under patio doors or around rear windows; and each of four roofs installed with a membrane had been penetrated by water. The landlord stated “the building is damp” and reported the developer had accepted responsibility for repairs. The landlord subsequently asked the developer for an urgent plan of action as the matter had dragged on since handover.
The developer responded that it was arranging a further visit and intended to provide a plan of action after this. They disputed issues had dragged on, and noted they had been working around the resident’s self-isolation. They noted that the roof had its own specific warranty but they would help resolve any issues within their responsibility. On 10 August 2020 the developer inspected with their roof membrane installer and reviewed concerns about the resident’s balcony and the roof. Their report noted:
1. The cladding was installed in line with ventilation requirements and the plans. The roof system was designed to accommodate the water pooling, which was not present at the inspection, although the roof installer offered to install pockets to reduce the amount of spread of sitting water. There were found to be remedial works required to two flat roof outlets, located above another flat where water ingress was visible, which was the only roof area potentially compromised. There were ‘ripples’ in the roof felt but these did not impact the system integrity (which was later confirmed in writing by the manufacturer).
2. There were no areas of damp found at the resident’s property and the only damp areas presented were at another flat. The previous inspection had found evidence that suggested water came from above the carpet and not under, for which there could be multiple explanations such as water being brought in from underfoot, spillages and cat urine. It was acknowledged the initial conclusion was to assume water ingress resulted from the underside of the cill, but this was simply not possible. The first 100mm of carpet did not show the water staining and there was a cavity void across the entirety of the floor threshold which water would not be able to cross.
3. The developer would mastic under the resident’s balcony doors and around rear windows, but this was concluded not to be the cause of the resident’s water mark, and any water staining would most likely be coming from inside and working its way back towards the balcony door.
The landlord responded on 14 August 2020 that it did not accept the developer’s response and would progress with independent reports. It stated that:
1. Water had been running down inside the balcony door under the step and onto the carpet.
2. The initial 100mm of dry carpet was because this was being held off the floor by a gripper rod below, which was rotten.
3. The developer should confirm there was no leak above or below the door; test moisture levels; confirm there was no excessive damage to plasterboard/insulation; and make good decorations and carpet at the resident’s flat.
The developer corresponded with the landlord on 17 and 21 August 2020.
1. They noted they had arranged for the cladding installer to provide a report to address concerns regarding gaps.
2. They suggested their recommended courses of action be taken and confirmed they would damp test the internal walls; carry out an intrusive investigation around the balcony door; seal external reveals where a gap was suggested; investigate the carpet staining and internal water ingress in front of the balcony door; and reinstate a window board on completion.
3. They raised concern at a blanket statement that the whole building was damp without evidence. They advised they had carried out End of Defects works within every property and the issue had not been highlighted in any End of Defects lists provided, apart from the resident’s property. They noted that after End of Defects inspections they were notified of a leak at another property and works were completed. They had taken damp readings in five properties and found none showed damp.
The information provided shows that on 17 September 2020 an independent surveyor carried out a damp inspection of six properties at the block including the resident’s. The report said:
1. Comprehensive damp testing was done; all readings were found to be acceptable; there was no obvious staining associated with damp ingress; some hairline cracking of concern to the resident was thermal cracking; no significant condensation levels were noted; and there was no indication of ceiling water ingress.
2. The carpet area in front of the balcony door was damp to the touch and the floor screed below this tested positive for dampness. The damp sources would usually include the adjacent threshold, defective pipework or possibly surface spillage. The absence of rainfall reasonably ruled out wind-blown rain circumnavigating the threshold, and defective pipework could be ruled out due to the lack of a rapid increase in dampness in the property (this investigation notes there was correspondence between the developer and landlord in March 2020 that noted that pipework runs across ceilings and down walls and not through the concrete floors). The exact cause of ‘the fairly high level’ of dampness was therefore inconclusive.
3. There were indications of internal dampness in two other properties that may be due to flat roof defects, however there was no indication of a widespread failure of the flat roof covering.
The information provided advises that following this, works to the resident’s property were completed around 19 and 28 October 2020, which included removal of the floor screed showing damp; sealing under the door on both sides with mastic; cold bridging works; repair of the floor with a self-levelling compound; repainting of the bedroom; and replacement carpet. Some further works were also done to secure a window which the resident reported contractors had broken, and steps were taken to arrange a window replacement.
The landlord provided a final response to the complaint on 19 November 2020, after the resident had joined a complaint review panel via video call on 9 November 2020:
1. It acknowledged concern from the resident that the developer had carried out inadequate repairs; misdiagnosed repairs; failed to communicate; had said they did not believe in following Personal Protective Equipment rules; and had climbed through her window to access the roof rather than use the correct keys. It apologised and noted that contractors had no longer needed to access the roof through the property from 24 August 2020, when some locks were changed.
2. It acknowledged and apologised that the resident had chased for repairs updates and was not kept informed about when temporary accommodation stays would be extended, and confirmed these had been discussed internally.
3. It acknowledged that an independent survey should have been sought earlier than it was, and said this had been fed back to a team for future learning.
4. It noted that most repairs had been completed and the resident had returned to the property, but there were outstanding actions. It noted the new window was being manufactured, and advised of timeframes the resident would be updated for this. It also noted a repair had been raised to investigate a leak in a communal cupboard which the resident had reported.
5. It noted the resident raised queries about wider repairs to the balconies and roof, and explained it was commissioning independent consultants to review the balconies and roof and a new build warranty insurance claim had been submitted. It advised that residents would be written to about steps being taken to rectify issues.
6. It noted the resident had clarified she had not had use of her bedroom between 31 October 2019 and 4 August 2020, and advised that in line with policy she was entitled to 20% of the daily rent, £1,318.15. It also acknowledged inconvenience caused to the resident and her daughter and awarded £681.85, to bring a total compensation award to £2,000.
7. It acknowledged that the resident and her daughter’s health had been affected, some belongings had been damaged, and her insurers were unwilling to accept a claim. It explained an insurance claim fell outside the complaint remit and provided details on how she could claim through its insurers. It explained its insurers may be unable to provide compensation but that she could appeal directly to the insurers.

Post complaint

In January 2021, the resident was informed the landlord’s consultant would carry out a desktop exercise and then an inspection, which subsequently took place in February 2021. In March 2021, the consultant produced a report which said:
1. There was evidence of ongoing water ingress on the internal wall around the resident’s bedroom balcony door, as recorded moisture levels were high.
2. There were issues with the door installation whereby tiles underneath the door cill were an extremely tight fit, impacting water being able to drain away on the balcony before compromising the threshold. It was recommended to carry out works to create a drainage channel and then monitor this over three months.
3. There were issues with the underside of the door cill/threshold; there was defective sealant with gaps and holes; and there were issues with rainscreen cladding on either side of the door being ‘poorly sealed.’
4. There were also issues with the standard of finish on a flat roof being ‘extremely poor’ (although there were no signs of disrepair or ingress directly related to the roof), and with the drainage outlets being inadequate and leading to water pooling. The landlord was recommended to replace the roof and modify drainage outlets.
In April 2021, the landlord informed the resident that it had reviewed the report, and it had highlighted the potential area causing water ingress around the balcony door, which it was giving the developer the first opportunity to rectify.
In June 2021, it was noted that the developer was prepared to review the recommendation to create a drainage channel for the balcony door, but would not accept liability and was not prepared to carry out works without proof of a common issue. The same month, the resident contacted this Service to raise dissatisfaction about the dispute between parties over the issues.
The landlord discussed matters with its consultant, which provided technical views on how there was no adequate way water was prevented from collecting on the balcony and travelling up underneath the door cill, and also suggested the balcony door may have been installed incorrectly. It was noted the developer disputed the door was installed incorrectly; restated that it was impossible for water ingress to occur due to the void beneath the cill separating the external and internal subfloor; and still believed incorrect use of trickle vents was causing water inside the bedroom.
In July 2021, the developer inspected and proposed to remove tiles closest to the balcony door to allow water to run away, which the landlord raised concern would be unsightly; a trip hazard; and would not address underlying issues in reports.
In August 2021, the landlord informed the resident that it intended to take legal action against the developer for the roof, and instruct its own contractor for works for ingress from her balcony. It advised that it was discussing required work with its consultant the following week, and once this was agreed its contractor would attend.
This Service discussed the case with the resident in April 2022, after last contact having been in June 2021. She advised that issues with water ingress in balconies was still ongoing and she was sleeping in her daughter’s vacant bedroom. She indicated there were major structural issues that needed to be resolved in order to address issues. She advised that her last contact from the landlord about matters was at an inspection in September 2021, but nothing had been done since.

Assessment and findings

This investigation understands the resident’s concerns about dampness at her current property and the impact on her health and her possessions, which has led to her sleeping in her daughter’s bedroom for periods. This Service understands how inconvenient and distressing this must be. It is clear that the balconies and the roofs at the new build block are the subject of a fundamental disagreement between the developer and landlord over whether issues in relation to them are in fact defects. In relation to the issues raised, it is not the Ombudsman’s role to make a definitive determination on matters such as defects, the impact on health, or if a bedroom is uninhabitable – as these are not within our role, expertise or jurisdiction. The Ombudsman can assess whether the landlord appropriately considered matters within the timeframe of the complaint, and reasonably applied its policy and procedure, complied with any relevant legislation and followed good practice when reaching decisions – which this assessment goes on to do.
The Ombudsman’s spotlight report on new build complaints confirms that landlords should be clear how it will respond during and after defects periods, and should effectively pursue developers on a resident’s behalf. The evidence demonstrates that the landlord effectively pursued the developer at significant points the resident raised the issues, which resulted in relatively timely inspections in November 2019 and February 2020. This demonstrates that the landlord took appropriate steps for the developer to consider the nature and extent of issues. Further, the developer appeared to come to conclusions in an appropriate way, as these followed first hand inspection and tests.
Following the landlord’s March 2020 inspection, it is clear it took a different view to the developer and identified some works, while the developer was willing to carry out some further investigation. This demonstrates that the landlord was seeking to take appropriate steps to fulfil its own direct obligations to the resident and ensure that works to address matters were progressed. However, the further investigation and works clearly became impacted and delayed by the outbreak of the Covid-19 pandemic and the resident’s shielding, and the landlord and developer communicated to agree to postpone further visits to the property. This appears reasonable although the landlord has positively acknowledged and apologised that its communication about the works, and later decant, could have been better.
The landlord then took appropriate action after the resident reported sleeping in her daughter’s bedroom and issues worsening in July 2020; by decanting her from the property and initiating further investigation by its staff, the developer and independent specialists. There appears to have been initial confusion that the developer accepted there were defects, however the developer subsequently appeared to fully consider the nature and extent of issues raised and set out its position that there was limited evidence for defects. In doing so, the developer appeared to again come to conclusions in an appropriate way, as these followed multiple first hand inspections and consultation with parties involved in the build.
The independent damp report in September 2020 confirmed that while damp readings were acceptable and no significant condensation was present, the floor was damp. This appears to reflect the general evidence seen in the investigation that the issue appears to have been quite isolated during various inspections, and did not have an obviously significant effect in terms of mould and condensation. The landlord acknowledged and apologised for the delay in carrying out the independent damp inspection, which was reasonable given the nature of the issue and impact on the resident could have prompted for this to be arranged earlier. The landlord subsequently completed works to repair the damp floor the following month, along with other identified works, which demonstrates that it responded to the damp report’s finding in a timely and appropriate way.
The landlord’s final response was positive and customer focused to acknowledge and apologise for issues; confirm steps were being taken to improve service; and to award compensation for the impact on the resident. The compensation equating to 20% rent for the period the resident said she was sleeping in her daughter’s bedroom reflects the landlord’s policy, while the additional award of £681.85 exceeded the normal discretionary maximum amount of £250.
In its Remedies Guidance the Housing Ombudsman Service sets out three compensation ranges which this Service takes into account when determining cases. The financial remedy provided by the landlord of £681.85 falls in the second highest range, where there has been considerable service failure or maladministration. This includes issues that may be relevant to the complaint such as chasing responses and repairs delays. Accordingly, the financial remedy provided by the landlord was in accordance with the Service’s Remedies Guidance and, considering all of the circumstances of the case, the landlord has overall responded reasonably to the resident’s complaint.
This investigation does note however that (while these events are some time after the landlord’s final response) the resident reports a lack of communication since September 2021 in respect to further remedial works for the balconies and roofs. The landlord clearly took action in the timeframe of the complaint to complete remedial works it identified, including for the damp floor, in October 2020. However, it should be ensuring that steps are being taken to complete any later remedial works it believed were applicable to help bring a lasting resolution to matters, therefore a recommendation is being made in relation to this.

Determination (decision)

In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, and in the Ombudsman’s opinion, there was reasonable redress by the landlord in its response to the resident’s reports of water ingress and damp at her property.

Reasons

The landlord has acknowledged issues with its handling of the matter, and its apologies, responses and financial remedy provide, in the Ombudsman’s opinion, an appropriate level of redress in accordance with this Service’s Dispute Resolution Principles and remedies guidance.

Orders and recommendations

Recommendations

The landlord to pay the resident the £2,000 it previously awarded, if it has not already.
The landlord to review the status of the works being considered around August and September 2021, and set out the current position on these to the resident.
The landlord to liaise with the resident to review current issues affecting her bedroom and take appropriate action.
The landlord to review its complaints for the block to ensure there are no outstanding issues for other residents.