Orbit Housing Association Limited (202115952)

REPORT

COMPLAINT 202115952

Orbit Housing Association Limited

9 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

The complaint is about the landlord’s:
1. Response to the resident’s reports of two damp patches to the ceiling at the property.
2. Complaint handling.
3. Record keeping.

Background and summary of events

Background

The resident is a shared owner of a flat on the third floor of a building. The landlord is the freeholder of the property. The property is a new build and following completion, the developer appointed a managing agent. The resident has lived at the property since he signed the lease on 31 August 2017. The property was still within the developer’s warranty in 2020 and 2021.
According to the Lease, the landlord is responsible for the repairs to the exterior of the building, including roof repairs and for the repairs related to any “Service Media”, including tanks and gas, electrical and drainage machinery in, under and upon the building (except such as serve exclusively an individual flat to the building).
According to the Lease, para 3.28, the leaseholder “shall ensure that a gas safety check is undertaken at least once every 12 months.”
The landlord’s repairs policy states that the landlord should deal with routine repairs within 28 calendar days of the repair being reported.
Para 3.2 of the landlord’s repairs procedures states that “if the repair is reported during the builder’s warranty period this will be reported to the builder along with the customer’s contact details. The builder will appoint the contractor to attend.”
The landlord’s complaints policy defines complaint as “an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by (the landlord), (its) own staff, or those acting on (its) behalf, affecting an individual customer or group of customers.”
The landlord has two stages of complaint process. At stage one, the landlord aims to resolve a complaint within 10 working days of the complaint being raised. It the complaint requires more detailed investigation, the landlord may extend the timescales initially by a further 10 working days. If more time is needed beyond this to investigate a complaint, the landlord will contact the resident to discuss this and explain the reasons why. At stage two, the landlord should respond within 20 working days from the review request.

Summary of events

On 13 January 2020, in a telephone call, the resident reported a damp patch on the kitchen ceiling at the property. According to the landlord’s telephone log, the resident was advised that as a leaseholder, this repair was his responsibility.
On 28 January 2020, the resident raised the issue again in a telephone call. The landlord told the resident to call back for an update on 31 January 2020 as a roof repair was suspected to be related to the issue.
On the same day, the landlord issued an order to its contractor to check and repair the roof.
On 31 January 2020, the landlord cancelled the order as it realised that the property was under a management company. There was a note left on the telephone log from the same day that all roof issues should be referred to the managing agent.
There is no evidence of any correspondence between the landlord and the resident or the landlord and the managing agent for the period 31 January 2020 to 20 July 2020.
On 20 July 2020, the resident called the landlord and asked for an update on the roof repair. The landlord referred him to contact the managing agent.
On 22 September 2020, the resident called again to report that the issue with the leak was ongoing and there was now a hole in the ceiling. The landlord advised again that this was not its liability but the resident insisted that the issues should be the landlord’s responsibility.
On 25 September 2020 and on 13 October 2020, the resident chased this further and asked for a call back with an update. He stated that he had not received any voicemail or call back. The resident was told again that the landlord was not liable for the ceiling repair.
On 25 November 2020, the landlord again re-raised the roof issue with its contractor. It was, however, cancelled by the contractor as they explained it was not their responsibility. The landlord left a note to call the resident to discuss and to reopen the job, but it was unclear of how it intended to do so. There were neither evidence that it called the resident, nor that it reopened the job.
In an email of 26 November 2020, the resident raised the following concerns:
1. The issue he reported in January 2020 had not been resolved for over 10 months. He attached an email from January 2020, which this Service has not seen.
2. He was ‘disgusted’ with the lack of communication. He had to chase the repair to the damp patch more than 30 times over the phone and was often told that he would get a call back, which never happened. He reported that the communication improved over the summer for a week and then again there was no communication from the landlord.
3. He attached images of the damage caused by the leak to the ceiling and to his cupboard (This Service has not seen the images).
4. He asked for a call back with answers on when the issue would be finally resolved.
On 1 December 2020, the landlord forwarded the complaint and the images internally. However, this was not acknowledged with the resident and the issues raised were not responded to.
On 2 December 2020, the landlord left a note on its telephone log to call the resident back.
On 4 December 2020, the resident called twice regarding the damp patch in the ceiling of the kitchen. He explained that it was ongoing for a year and the landlord should have it on its system. The landlord again advised him that he was liable for his own repairs.
On 13 January 2021, the landlord contacted its managing agent with regards to the ongoing leak and asked for an update. This was responded to on 20 January 2021. The managing agent said:
1. They were aware of the resident’s issue.
2. They explained that they had spoken to the developer as the developer was looking into some other roof issues affecting the block. They would ask the developer to include the resident’s property in this investigation.
3. They would explore the possibility of the leak relating to any pipework as this had been an issue in some other flats.
On 17 February 2021, the managing agent updated the landlord that it had investigated the leak. The issue was caused by a gap in the resident’s boiler’s flue pipe. The flue was not connected properly and condensation was collecting on the pipework and dripping down into the property’s ceiling. The managing agent had referred this to the developer and asked the landlord whether there was a gas safety certificate and the property was fitted with a carbon monoxide alarm.
On 22 February 2021, according to internal correspondence the flue was connected and in March 2021 the remedial works to the kitchen ceiling were completed by the managing agent.
On 15 March 2021, following a phone call with the resident, the landlord wrote to the managing agent explaining that the resident raised concerns about carbon monoxide following its findings. The resident also reported that following the contractor’s works, there was a second wet patch to the ceiling in the master bedroom. The managing agent forwarded the reports to its contractor and explained that due to staff departure it was difficult to follow up what works were completed. The landlord chased an update on 29 March 2021 and 10 April 2021.
On 12 April 2021, the managing agent, following some correspondence with the developer confirmed to the landlord that the works were completed on 22 February 2021 but did not respond to the second damp patch.
On 4 May 2021, the resident raised a second formal complaint that:
1. He was exposed to the risk of carbon monoxide poisoning for three years.
2. He confirmed the flue was fixed but this had caused damage to other parts of the property, and particularly, the ceiling in the master bedroom.
On 17 May 2021, the landlord sent an acknowledgment of the complaint to the resident and apologised for the delay.
The landlord wrote to the resident again on 2 June 2021 and explained that it had tried to call the resident to further discuss the complaint and asked him to call back.
On 14 June 2021 and 21 June 2021, the landlord asked its managing agent for a further update on the second wet patch issue. It explained to the managing agent that the works to the wet patch in the kitchen ceiling and the flue were completed in March 2021, but a week following the repair a wet patch appeared on the master bedroom ceiling.
The managing agent contacted the developer and the developer confirmed that they had not carried out any works to the property since 2019. The managing agent was also unaware of any works due to staff changes. There was also uncertainty and miscommunication in the email trail of whether the leak was reoccurring or the second patch was a result of a new issue. The email exchange about clarification of the actual works and circumstances around the repair continued until 7 July 2021.
On 7 July 2021, the managing agent suggested that because of the distance between the two patches, the issue causing the second wet patch in the master bedroom was not related to the issue with the boiler flue. The managing agent stated that it would further investigate the cause of the second wet patch.
On 29 July 2021, the landlord issued its stage one complaint response to the resident. It said in its response:
1. It acknowledged that the resident initially reported a “cracked ceiling” in the kitchen on 13 January 2020.
2. Its initial advice provided to the resident that the crack was the resident’s responsibility was correct.
3. The resident chased this further in July 2020, when the landlord referred him to the manging agent. The managing agent attended in February 2021 and identified the issue. The landlord explained that the initial delay was due to the assumption that the leak originated from the roof, therefore, it was referred to the developer.
4. The landlord acknowledged that the resident reported another wet patch after the works to the first were completed. The landlord referred the matter to the managing agent rather than to the developer as it assumed that the cause was again the boiler flue. The landlord confirmed that it was a roof leak causing the second patch.
5. The landlord confirmed that there would be a follow up appointment to investigate the issue on 5 August 2021.
6. The landlord apologised:
  1. For the delay in identifying the issues causing the two wet patches.
  2. For lack of communication regarding the matter.
  3. For the delay in acknowledging the complaint and getting a resolution to the resident.
7. The landlord awarded compensation of £550, comprising £400 for distress and inconvenience incurred by both delays in identifying the cause of the leaks and its lack of communication and £150 for its complaint handling and delay in getting resolution to the matter.
8. The landlord also advised the resident in future to raise and chase any similar matters directly with its managing agent. It upheld the complaint and provided information for escalation.
On 6 August 2021, the resident asked for a review. He said that:
1. The patch in the bedroom ceiling was still not resolved following the attendance of the workers on 5 August 2021.
2. There was damage to the kitchen units not rectified since the first wet patch issue.
3. He raised concerns that carbon monoxide was present in the property for over 3.5 years and this exposed him, his family and his visitors to a risk of being killed. Hence, he found the offer of £400 “insulting”.
The landlord issued its final response on 16 August 2021. In its review, the landlord said:
1. The building was manged by a managing agent and the landlord had no control on how the building was managed by the managing agent.
2. The damp patches were due to a communal leak.
3. The level of compensation offered at stage 1 was reasonable and it would not increase its offer.
The resident contacted this Service on 13 October 2021, and brought his complaint to the Ombudsman on 18 January 2021. The resident explained:
1. The landlord had not fixed the second wet patch to the bedroom ceiling reported on 15 March 2021.
2. The landlord did not award enough compensation and did not consider the risk he, his family and visitors were exposed to due to the error with the flue pipe connection and potential exposure to carbon monoxide.
In a telephone conversation with this Service from 1 December 2022, the resident said that the landlord had not carried out remedial works to the second wet patch and the damages to the cupboards in the kitchen had not been dealt with.

Assessment and findings

In reaching a decision about the resident’s complaint we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case.
This Service is not aware of the details of the contractual relationship between the managing agent, the landlord and the developer. The managing agent was appointed by the developer rather than the landlord according to internal correspondence. The lease and the repairs policy are silent about the managing agent’s responsibility and relationship with the landlord.
However, the lease and the repair policy are clear about the landlord’s responsibility. According to the repair policy, any defects should be reported to the landlord and it will forward them to the developer. According to the lease, the landlord is the freeholder of the property and it is responsible to carry out any repairs related to the exterior of the building, including the roof. It is also responsible to carry out repairs related to any of the Media Service, including the gas apparatus and machinery except those that service exclusively an individual flat.
Additionally, the lease sets out that the landlord is responsible to put right any damages which are a result of its omissions to deal with any repairs in a timely and reasonable manner.

The landlord’s response to the resident’s reports of two damp patches to the ceiling at the property

The landlord’s response to the resident’s reports of two wet patches in the ceiling amounted to maladministration as:
1. There was a considerable delay in identifying the cause of the two wet patches. The initial patch to the kitchen ceiling was reported in January 2020 and according to internal correspondence resolved in March 2021, 13 months later. The landlord explained that the delay was due to its assumption that the cause was a communal leak, when the actual cause was a boiler flue’s connection.
2. The second wet patch in the bedroom was reported on 15 March 2021 following the works related to the first patch. The delay in responding to this report was addressed in the landlord’s response and the landlord attended it on 5 August 2021, but there is no evidence that it was completed until after 13 October 2021, when the resident contacted this Service. The landlord admitted that the delay was due to the assumption that the second patch was a result of the boiler flue, and therefore had not been sent to the developer.
3. The landlord failed to monitor and follow up the repairs with its managing agent. There is no evidence of when and whether the second repair to the bedroom ceiling was carried out and the resident has confirmed it is still outstanding.
4. There was a lack of communication. The resident contacted the landlord over 20 times for the period from July 2020 to February 2021. He also reported on 26 November 2020 that none of the call back requests were returned.
5. There was a miscommunication between the landlord and the managing agent as seen in the internal correspondence. This led to confusion about who had dealt with the wet patch to the kitchen ceiling, what inspection was needed for the second patch to the bedroom ceiling, what was outstanding and whether the second patch was as a result of separate events. The complaint was redirected from one person to another which caused additional confusion to the landlord’s staff, managing agent and developer. This caused evident distress and inconvenience to the resident.
6. The landlord failed to address the issues raised by the resident on 26 November 2020 about a damaged cupboard following the ongoing leak in the kitchen and particularly, whether to refer the resident to its insurers or put things right itself.
7. In its final response, the landlord did not properly recognise the cause of the separate wet patches, but stated that they were both due to a communal roof leak, which was clearly an error in its review investigation.
8. The landlord stated that it does not have control of how the building is managed by its managing agent and reports should be made to the managing agent directly in future. As this is not explained in the landlord’s repairs policy, it is confusing for the resident to know who to report the repairs to. It is also concerning that the landlord provided such advice giving the lease sets out that the landlord is solely responsible for the exterior repairs and repairs to Service Media.
9. The landlord failed to address the concerns raised by the resident in relation to a potential exposure to carbon monoxide. Whilst this Service does not have the expertise to assess any contested issues regarding the risk imposed on health and wellbeing, or make findings of negligence and liability, we can look into what took the landlord so long to diagnose such a potentially dangerous situation. It is concerning that this has not been further investigated by the landlord or the manging agent in order to prevent future events.
In its response to the complaint, the landlord admitted some of the failures, and particularly the delays in identifying the causes of the wet patches and the poor communication. It apologised and offered compensation. This was resolution focused, but the compensation offered was not enough considering the stress and inconvenience its responses to the reported repairs had caused the resident.
When there are failings by a landlord, as is the case here, the Ombudsman will consider whether the redress offered by the landlord (apology, compensation and details of lessons learned) put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles; be fair, put things right and learn from outcomes.
The landlord’s response did not put things right as:
1. Whilst it offered compensation of £400 for the failures acknowledged in its response – the delays in identifying the issues causing the wet patches and the lack of communication, it failed to offer further compensation for the delays to the remedial works of both patches.
2. It also failed to follow up with the managing agent on the completion of the works to the second patch.
3. It also did not provide any consideration to the damages reported to the kitchen cupboard during the ongoing leak in the kitchen ceiling.
4. It failed to respond to the serious allegations around possible exposure to carbon monoxide.
The landlord did not evidence that it had learnt from the outcomes of this complaint as it had not demonstrated any improvement to its processes with the managing agent or of reporting and following up on repairs. Neither has it explained how it would improve the communication between itself, the resident and the managing agent.
Therefore, for the reasons set out above, the Ombudsman considers that the landlord in its complaint response did not fully put things right or evidence any learning from its failures.

Complaint handling

The landlord admitted failures in respect of its complaint handling related to delays in acknowledging the complaint and responding at stage one. According to the landlord’s acknowledgement letter of 17 May 2021, the complaint was raised on 4 May 2021. The stage one response was sent on 29 July 2021. According to the landlord’s policy, which states that a response at stage one should be sent within 10 working days, the response was delayed by 72 days. The landlord apologised and offered compensation of £150 for this failure, which was fair and in line with the Ombudsman’s Remedy Guidance.
However, the landlord failed to acknowledge the resident’s original complaint of 26 November 2020. If the landlord had not done so, this could have spared an additional 161 days of delays. The landlord’s complaint policy sets out that any customer dissatisfaction with its services should be considered as a formal complaint. The landlord failed to raise this as a formal complaint which was inappropriate.
The landlord also failed to acknowledge this in its later complaint response and also failed to address the concerns about the cupboard damage. Additionally, it failed to address the allegations by the resident about the risk of potential carbon monoxide exposure. The landlord’s omissions were inappropriate and amounted to maladministration.
This Service has seen evidence of poor communication between the landlord, the resident and the managing agent. Some of the delays in handling the complaint were caused due to confusion about the actual matter and who was responsible. There seems to be no set guidance for the landlord’s staff on how to approach such situations. On a few occasions, the repairs and information on the repairs were chased with its own contractors rather than the managing agent.
In the Ombudsman’s Spotlight Report on Managing Agents, it is acknowledged that working with the freeholder and their managing agent can be challenging for the landlord, and the risk is particularly because of lack of direct control. However, this is a similar situation, where the managing agent is appointed by the developer, and despite the landlord being the freeholder, a lack of direct control is a risk factor. This particularly has caused confusion in responsibilities, lack of communication and delays in dealing with the resident’s dissatisfaction.
Whilst the landlord has offered a reasonable compensation for the complaint handling failings it identified, it failed to identify that it missed the original complaint. It also failed to address the damages to the kitchen cupboard and the allegations for carbon monoxide exposure. Therefore, the redress offered for the complaint handling failings was not proportionate to the failures identified and the distress this has caused to the resident.

Record Keeping

As part of this investigation the Ombudsman requested records from the landlord such as repair logs, records of dates the property was attended, an explanation of works completed at each visit, details of any outstanding issues identified and so on. The landlord has not provided these.
Whilst the landlord has provided copies of email exchanges with its managing agent and the resident, together with a telephone log, the lack of any repair records is concerning, and a failure on the part of the landlord.
The managing agent is an extension of the landlord and as such there should be a system in place for the landlord to request that the managing agent maintains accurate records of repair reports, responses, inspections and investigations. Good repair records could have helped the landlord in these circumstances to alleviate the confusion of what repairs were completed, when and what is left outstanding.
Good record keeping is vital to evidence the action a landlord or a managing agent have taken and failure to keep adequate records indicates that the landlord’s repairs processes are not operating effectively. As this Service has not any records, and for the reasons set out above, there was maladministration in the landlord’s record keeping.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its response to the resident’s reports of wet patches to the ceiling at the property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its complaints handling.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its record keeping.

Reasons

There were significant delays in investigating the cause of the two wet patches. The landlord failed to follow up with the managing agent and the developer on what and when works were carried out, and to update the resident, accordingly. The landlord failed to address the damages, complete remedial works in a timely manner and put things right.
The landlord failed to acknowledge the resident’s initial complaint which added to its complaint handling failures. It also failed to address damages and the resident’s allegations of potential risk of carbon monoxide exposure.
The landlord did not keep appropriate repair records to explain how it met its obligations or obtain such records from the managing agent.

Orders and recommendations

The landlord is ordered within four weeks of the date of this report to carry out a management review of this case to identify learning and to provide this Service and the resident with a summary of the review setting out what went wrong and the steps it will be taking to ensure that the failures are not repeated. The management review should include:
1. A review of its repairs policy related to managing agents involvement and put in place system of how to monitor their actions.
2. A review of its record keeping practices related to the managing agent to ensure that appropriate records are maintained to demonstrate that it has met its repairing obligations.
3. A response to the issues not addressed in its final response related to allegations of potential carbon monoxide exposure. It should engage a specialist qualified consultant to explore what went wrong and how this could be prevented in future.
4. It should set out a clear timetable for the works to the wet patch in the master bedroom and to put right the damages to the kitchen cupboards.
The landlord is ordered within four weeks of the date of this report to pay the resident £850. This is comprised of:
1. £550 previously offered if it has not already been paid.
2. A further £100 for the distress and inconvenience caused by the landlord’s response to the resident’s reports about the wet patch to the master bedroom ceiling.
3. A further £200 for the distress and inconvenience and time and trouble incurred by the resident as a result of the landlord’s complaint handling failures and record keeping.