Orbit Housing Association Limited (202103215)

REPORT

COMPLAINT 202103215

Orbit Housing Association Limited

22 December 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:
   1. The landlord’s handling of damage caused by a leak from the property above;
   2. The landlord’s handling of repairs needed to windows; and
   3. The landlord’s handling of the formal complaint.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint, or part of a complaint, will not be investigated.
3. After carefully considering all the evidence, in accordance with paragraph 42(a) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
   1. The landlord’s handling of repairs needed to windows
4. Paragraph 42(a) of the Scheme states that the Ombudsman will not investigate complaints which “are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale.”
5. The complaint brought to this Service concerned the landlord’s handling of repairs to her windows, however this was not raised with the landlord as a formal complaint despite having the opportunity to do so. Where a complaint has not exhausted a landlord’s complaints procedure, it will not normally be considered by the Ombudsman. This is as it is important for a landlord to first have the opportunity to respond to an issue under its internal complaints procedure, before the Ombudsman will investigate and comment on it. As such, if the resident wishes to pursue this matter, she will need to ensure that the matter has exhausted the landlord’s complaints process before it can be considered by this Service.

Background

6. The resident is a leaseholder, and she owns a two-bedroom flat that is within a block of flats. Her family members reside in the property.
7. The resident says a leak from the flat above occurred in 2020 and damaged her living room ceiling. The flat above is owned by the landlord, and she says a successful insurance claim was made to the landlord’s insurer about this. However, when a contractor was arranged to carry out repairs to the ceiling, they refused to do so because of possible asbestos and concerns about the corrosion of the concrete reinforcement above the ceiling. The resident made a complaint to the landlord about its handling of the matter.
8. The resident arranged for a structural assessment to take place, on the landlord’s advice. The landlord considered the report, but did not think the surveyor had found any structural defects that it would be responsible for. However, the landlord did arrange for its contractor to establish if asbestos was present. It concluded that, as a leaseholder, the resident was responsible for establishing where the water had come from, and putting right any damage to her property.
9. The resident appealed against the landlord’s response to her complaint. She was unhappy that the landlord had referred to there being an ‘alleged’ flood, when she said she had photographic evidence of this. She also pointed out that the landlord’s insurer had made a payment to have the damage repaired. The resident wanted the landlord to reimburse her for the cost of the structural report, plus the insurance excess she needed to pay, in addition to compensation. She also wanted repair works to be carried out.
10. The landlord issued its final response to the resident’s complaint. It said that the resident was responsible for internal repairs to her property, and it had found no evidence of a leak when it visited the flat above. Whilst it acknowledged that the resident had made a contents insurance claim, it said she had not received a claims decision from the insurer. Nonetheless, the landlord later acknowledged (in an amended response) that it had experienced issues in resolving the leak from the flat above, due to access problems. It thought its response to the leak had contributed to the issues the resident had experienced, and so it offered her £250 compensation for the distress and inconvenience she had experienced in trying to resolve the matter. It also offered the resident £200 compensation for its handling of the complaint.
11. The resident brought her complaint to this Service. She was unhappy that the landlord was denying responsibility for the damage to her ceiling. She said she had to pay £250 excess to the insurer, which left her with £950 to cover the damage, but she could not get the damage repaired. The resident made the point that asbestos had been found in the ceiling, but this had only been covered up by the landlord’s contractor rather than removed.

Assessment and findings

The landlord’s handling of the leak

12. The lease explains that the resident, as the leaseholder, is responsible for repairs to her property. This includes the ceilings, but not the joists, beams or floors to which the said ceilings are attached.
13. As such, in the absence of a leak, it may have been satisfactory for the landlord to have encouraged the resident to address the issue with her ceiling via her own means. This Service notes, however, that there were several leaks in the property above the resident which inevitably caused ongoing damage to her ceiling. While the landlord initially suggested that it held no evidence of a historic leak issue, it later clarified to the resident that its complaint responses were misinformed. It was good practice for the landlord to make this correction.
14. In the Ombudsman’s view, nevertheless, this demonstrates that the landlord did not properly interrogate its records before offering the resident a decision on how the issue needed to be handled. Had the landlord done so it may have recognised, as it did in its later response, that its management of the leak issue (and inability to gain access to the property above) contributed to the issue the resident was experiencing. This was not a matter the resident was responsible for resolving.
15. The Ombudsman notes that the resident was advised to arrange for the issue to be surveyed and a structural report to be produced. In the Ombudsman’s view, however, while the resident is a leaseholder, given that she indicated the issue was caused by a leak from a landlord-owned property, the landlord should have first investigated this issue to confirm for itself that the issue was not one it was responsible for. It subsequently could have re-charged the resident, if this was confirmed to be the case, and to have advised her on any arrangements she needed to make herself. In this case, however, it appears that the resident was required to foot the cost of acquiring a surveyor and subsequently had to share her surveyor’s findings with the landlord. Despite evidencing at this time that the damage to the ceiling was caused by water ingress, the landlord declined to reimburse the resident for the cost of the survey. This was inappropriate.
16. The structural report commissioned by the resident confirmed the tower block was comprised of reinforced concrete construction with reinforced concrete slabs spanning between beams, columns or walls. The engineer inspected the slab above the resident’s ceiling, and said a visual inspection identified exposed and partially corroded reinforcement. It was concluded that the partial corrosion identified could be attributed to the recent water leak – which was ultimately the landlord’s responsibility to manage. Several recommendations were made to rectify this.
17. On reviewing the report, the landlord correctly highlighted that it did not identify structural damage. It appears that the recommendations made in the report were subsequently overlooked, despite suggestions that may have offered greater support in preventing future structural issues. More relevantly though, this Service notes that the landlord completely overlooked the surveyor’s conclusion regarding the impact the water leak would have likely had. This was a matter for the landlord to repair.
18. This Service has been unable to confirm the basis on which the landlord’s insurer offered the resident a cash settlement. The resident’s correspondence suggests that this amount was offered to enable her to fix the ceiling, suggesting there was some recognition of the burden which fell to the resident, and which was appropriate. In the Ombudsman’s view, however, while it is appreciated that it is usual practice for an excess amount to be charged for claims, this charge should have been covered by the landlord, given that it should have led and owned the repair of this issue.
19. What’s more, it is understood that due to a later discovery of asbestos, the resident was unable to have works completed. The Ombudsman is aware that the landlord covered this area up for the resident, as a gesture of goodwill but has refused to take action to remove this.
20. In normal circumstances, given that the resident is a leaseholder, the onus would be on her to remove the asbestos. This is as it would fall within the demised premises – all of which she is responsible for. It appears to the Ombudsman, however, that in this instance, the asbestos was disturbed by the inspection of the ceiling, following the leak. As such, given that the leak stemmed from a landlord owned property, it would have been appropriate for the landlord to have arranged this. It was unreasonable for the landlord to pass this responsibility back to the resident.  
21. At the time of the resident’s insurance claim, it does not appear that the presence of asbestos had been discovered and so this would not have been factored into the payment she received. It would subsequently be appropriate, to enable the resident to resolve this matter, for the landlord to arrange for the removal of the asbestos or to reimburse the resident for the cost of this work, should it agree for her to arrange it herself.
22. Taking into account the extensive length of time that the resident has had to live with a hole in her ceiling (although patched), and the landlord’s failure to deal with the repairs despite the surveyors report in May 2021, its offer of £250 compensation fell short in recognising the distress and inconvenience the resident and her family experienced. In the Ombudsman’s opinion, there was a failure to put things right, to truly recognise the impact on the resident, and to reimburse her for the costs which arose from no fault of her own. There was consequently maladministration in the landlord’s handling of this matter.  

The landlord’s handling of the resident’s complaint

23. The landlord’s complaint procedure explains that it operates a two-stage complaints process. It says that if a resident is unhappy with the landlord’s stage one complaint response, they may request a review. It will aim to respond to requests for a complaint review within 20 working days, but if it cannot do so, it will advise when this will be.
24. After the landlord issued its stage one complaint response, the resident appealed four days later, on 13 July 2021. The landlord did not acknowledge this request for a complaint review, and only provided its stage two response after this Service requested that it do so, which was two months after the resident had appealed.
25. When the landlord did provide its response, this was incorrect. The landlord sent an amended response later that day. It seems that some of the confusion within the second version of the landlord’s stage two response (in respect of whether it accepted there was a leak, as referred to above) was likely caused by it issuing two versions of its stage two response.
26. However, the landlord did acknowledge there were errors in its complaint responses, and offered the resident £200 compensation for this. Whilst this did not take into account the delay in issuing its stage two response, the Ombudsman considers that this amount of compensation is reasonable in the circumstances, and adequately reflects the inconvenience caused to the resident by the landlord’s handling of the complaint.

Determination

27. In accordance with Paragraph 42(a) of the Scheme, the complaint about the landlord’s handling of repairs needed to windows is outside jurisdiction.
28. In accordance with Paragraph 52 of the Scheme, there was maladministration in respect of the landlord’s handling of damage caused by a leak from the property above.
29. In accordance with Paragraph 53(b) of the Scheme, the landlord has offered redress, which, in the ombudsman’s opinion, resolves the resident’s concern about the landlord’s handling of her formal complaint satisfactorily.

Orders

30. In recognition of the maladministration identified, the landlord is ordered to award the resident £350 to reflect the missed opportunities to put things right, the time and inconvenience caused to the resident over the course of the complaint period, and the trouble in having to bring her complaint to the Ombudsman for investigation. This should replace the £250 originally offered.
31. The landlord should discuss with the resident how it intends to address the disturbed asbestos. It should write to the resident within four weeks of this determination setting out a date in which it intends to undertake asbestos removal works, or agree for the resident to arrange this herself with the costs reimbursed at a later time.
32. The landlord should reimburse the resident for the cost of the surveyor upon obtaining the invoice / receipt for this, and should also reimburse the resident for the excess paid to its insurer.
33. The landlord should confirm with this Service that all orders above have been complied with within four weeks of receiving this determination.

Recommendations

34. Pay the resident the additional £200 compensation offered in respect of its poor handling of the complaint, as the finding of reasonable redress above has been made on that basis.
35. The landlord should also consider the other recommendations made in the surveyor’s report, to enable it to proactively take steps to avoid any future structural issues.