Paradigm Housing Group Limited (202017400)

REPORT

COMPLAINT 202017400

Paradigm Housing Group Limited

27 August 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 response to the resident’s reports of repair issues with cracks in his walls and ceiling.

Background and summary of events

The resident has had a lease with the landlord since 21 December 1987. The resident has made reference to works taking place in the flat below since as far back as 2017. The Housing Ombudsman Scheme states that the Ombudsman will not investigate events which were not brought to the attention of the landlord as a formal complaint within a reasonable period which would normally be within six months of the matters arising (paragraph 39(e)). It will also not investigate complaints which were brought to the Ombudsman’s attention normally more than 12 months after they exhausted the landlord’s complaints procedure (paragraph 39(d)). This investigation will consider events from October 2019 onwards on the basis of what the Ombudsman considers to be a reasonable period in light of the provisions of the Scheme and considering the available evidence. It should be noted however that all of the evidence provided by both parties dated from 2017 onwards has been reviewed.
Additionally, as previously set out in correspondence between the Ombudsman and the resident, this Service cannot consider a complaint about the outcome of an insurance claim, or about liability for damage. This would be a matter for the courts to consider.
On 10 October 2019 the resident wrote to the landlord stating that, as previously communicated to the latter, several cracks on the resident’s property walls had appeared since renovation works had been undertaken by his downstairs neighbour. He noted having attempted to communicate with the neighbour about the issue but had not received any response. He also stated that while he had been away, his security cameras had notified him on various occasions that there had been motion detected in the property which he considered to be as a result of movement from work in the property below. He noted that there was hacking/drilling noise apparent in the CCTV footage, and that the cracks in the walls had gotten worse despite the landlord previously denying that the work was the likely cause of the cracks.
On 9 March 2020 the resident wrote to the landlord seeking an update on a previously raised issue about cracks in the property which he considered to have been caused by work carried out by his downstairs neighbour in their property. Following some communication between the parties and the landlord reviewing photos provided by the resident, the former replied on 2 June 2020 stating that there was no sign of subsidence. It noted that it considered the internal damage to have been caused by thermal movement which the resident should repair as part of general redecorations.
On 3 June 2020 the landlord wrote to the resident stating that it had never heard of properties below causing damages to ceilings in flats above, and again suggested that the resident fill in these cracks the next time he decorated his property. It noted that if the resident did not accept this assessment, he could get advice from a surveyor about the cause of the damages. If the damage was the result of an insured event then it could reconsider its position. Following a response from the resident noting again that the cracks had appeared during the work carried out by the neighbour, the landlord set up a new claim and forwarded the evidence onto its insurers for them to consider.
In July 2020 the landlord’s surveyor undertook a review of the property to consider if there was the possibility of subsidence having occurred and causing the cracks in the plaster. The surveyor concluded that there was no evidence of any subsidence.
The report was provided on 3 July 2020. It included the following quote: “We understand that the cracking initially appeared when some building works were in progress in the ground floor maisonette and significant vibrations were experienced. The cracks were filled but returned again when further building works were in progress. Based on the advised timing of the damage appearing and the absence of evidence to suggest that the damage is the result of foundation movement, it is likely that the cracking is related to the works undertaken in the ground floor maisonette.”
On 5 October 2020 the resident contacted the landlord to raise a complaint. He noted that he had submitted a claim on the building insurance policy due to damage caused to his property which he considered to have resulted from works in the property below. He noted that he had been contributing to paying for the “all risks” building insurance since purchasing the property, but that exemptions had been used to reject the claim. He stated that it felt unjust that he was ultimately liable for a repair cost from a fault that he had not caused. He also requested clarification of what the building insurance actually covered.
On 15 October 2020 the resident wrote to the landlord at the latter’s request to clarify the elements of the complaint, noting that as per his recent email the various works that had been undertaken in the flat below had caused damage to his property. He stated his belief that the landlord, as the freeholder of the property should carry some responsibility to help sort the issue out.
On 20 October 2020 the landlord wrote to the resident noting it would provide the complaint response within fifteen days. It asked the resident when he had first noticed the cracks appearing, and also whether he had heard any significant building type noises from the flat below and if he was aware what kind of work was being undertaken.
On 21 October 2020 the resident wrote to the landlord stating that the cracks appeared during the period when the neighbours below were carrying out alteration works. He noted feeling vibrations in his property at the time and noticing loud hacking and banging noises. He noted having gone down to the property and seeing a contractor demolishing a solid wall without proper propping, which he thought could have been a structural wall. He requested the neighbour show him structural drawings and plans but the neighbour did not, and they also denied they were responsible for the cracks in his property. On this basis the resident had decided to raise the issue with the landlord.
On 29 October 2020 the landlord’s internal emails noted that the landlord’s surveyor had attended the neighbour’s property that day. It reported that there was no evidence that significant structural works had been carried out to the property. A lightweight block partition approximately 50mm thick had been demolished, but it was noted that this type of wall was not load–bearing. There was no sign of subsidence evidence, with no cracking or fractures present at any external elevations viewed.
On 29 October 2020 the landlord wrote to the resident with an update to the complaint. It had noted it had arranged for a visit to be made that week by its staff and a surveyor to the flat below the property to review any internal works that had been carried out to establish if this was the cause of the cracks in the plastering. Having reviewed the technical subsidence survey report from July 2020, the report showed that there was no evidence of the cracks being caused by subsidence and that there was no evidence of any further subsidence at the property. It noted that in regard to the insurance that the resident had referenced paying for, this was for the structure of the building and covered damage that might be caused by a “insurable event”, such as a fire, flood or subsidence. It did not cover general repair and maintenance nor the contents of the property. It noted that it would shortly provide its formal response to the complaint.
On 6 November 2020 the landlord provided its stage one complaint response in which it set out the following:
1. Following contact with its insurers, it had arranged for a surveyor’s review of the building, as well as the flat below to ascertain what may have caused the damage in the resident’s plasterwork. They found that there was no evidence of any subsidence at the property, which discounted the theory that the damage had been caused by subsidence. Following indications from the resident that the damage could have been caused by works carried out in the flat below, the landlord’s staff and a surveyor attended the property to assess the works carried out there. It was noted that the work comprised of the conversion of a bathroom to a wet room, and that no walls had been moved or replaced during this work. Despite the resident experiencing noise, there was no evidence that it could find to suggest that the work would have caused damage to his property.
2. The surveyors report indicated that the cracking in the plaster “could” be associated with the work, and that “simple crack filling and redecoration to the affected areas should be sufficient to reinstate”. This work was considered by insurers to be general maintenance, was not covered by the building’s insurance though it noted it may be by the resident’s own contents insurance.
3. It explained that all of its buildings must have insurance cover to protect its assets and liabilities for it, part of which the resident pays as part of his service charge. It explained that the insurance covers repairs to the buildings in the event of damage to the structure of the outside of the building through something like a fire, flood or subsidence. It stated that this insurance did not cover personal contents nor general maintenance as set out in the resident’s leasehold agreement.
4. It concluded that the repairs as described by the resident were classified as general maintenance and as such were not covered by buildings insurance and were the responsibility of the leaseholder i.e. the resident.
On 10 November 2020 the resident wrote to the landlord to request the complaint be escalated. In this communication it set out its grounds for review as follows:
1. He was unclear how the investigation could be considered to have been carried out thoroughly given no-one attended the property to assess the damage.
2. He stated that he was certain the downstairs neighbours had demolished the structural brick walls in the middle of their flat between 2017 and 2018 as he and his wife had seen this when they went downstairs to investigate a loud hacking noise. He noted that this work had been carried out without consent, that they received no notice or details of the work, and that this contradicted the surveyors report which stated that no walls were demolished.
3. The surveyors report noted that the cracks were likely to have been caused from the works done in the property below, and he therefore disagreed that they should be classified as general maintenance.
4. He was highly dissatisfied that he was unable to claim on the “all risks” insurance for the building through the management cost given works had been carried out by other parties causing damage to the property. He had not been aware of any insurance restrictions until recently when he was provided with the details of the policy by the landlord.
On 11 November 2020 the landlord acknowledged the escalation request. The following day it wrote to the resident stating that the complaint response would be provided by 2 December 2020.
On 2 December 2020 the landlord wrote to the resident noting it would be unable to meet its original deadline of that day for the complaint response and would instead provide the response by close of business on 4 December 2020.
On 4 December 2020 the landlord provided its stage two complaint response to the resident in which it set out the following:
1. It had looked at the photographic evidence of the property and read the reports provided including the surveyor report dated 3 July 2020. It acknowledged the existence of the cracks to the walls and ceilings, and noted the resident’s belief that these were caused by the neighbour’s disability adaptation works in the property below.
2. Making reference to the previously quoted paragraph from the surveyor’s report, it noted that this was not an opinion as to the cause of the cracks, but instead reflected what the surveyor had been told. It specifically pointed out that the relevant paragraph opened with the words “We understand” and was under the subheading “Discussion”. It emphasised that this was not a finding on causation.
3. It stated in different paragraphs that there was variously “insufficient” or “no evidence” to indicate that the cracks were caused by the downstairs works.
4. As a matter of good practice, it noted that it would have expected the resident would have been told of the works before they started. It noted that the works were not undertaken by itself but rather through a Council scheme to support independent living. However it acknowledged that as the freeholder with responsibility for building management it should have ensured that the resident was informed of the intention to undertake the works, and apologised that this did not happen. It did state that there was no requirement for the neighbouring leaseholder, itself as freeholder or the council obtain the resident’s consent for the works, nor for a party notice. It maintained that no structural wall was removed during the adaptation works.
5. It summarised its position that it was reasonable to characterise the cracks as being ones that could be addressed by general maintenance which was the responsibility of the leaseholder.
On 16 December 2020 the resident responded to the landlord’s complaint response stating that it had not relied on the evidence he had provided in coming to its conclusion on the issue. He noted having attempted to fill the cracks twice at his own expense, but that these recurred again following this. He also stated that the investigation carried out by the landlord had not involved a visit to his property, and also that he had witnessed the neighbour carrying out works on load-bearing walls in their property which contradicted the landlord’s report. It noted having recently examined the insurance policy and being shocked to discover various exemptions that he was previously unaware of.
On 29 January 2021 the landlord’s internal emails noted that there remained no evidence that the landlord or the previous leaseholder of the property below him was responsible for cracks in his flat, and that all the indications were that these cracks were cosmetic.
On 30 January 2021 the landlord wrote to the resident stating that it did not accept the cracks in the walls had been caused by the neighbour’s adaptations works. The works had not been carried out by her daughter as the resident alleged, but were undertaken further to the local authority scheme to support independent living. As freeholder it gave permission for these works to be undertaken, but not did not give permission for the removal of structural walls which would be a breach of the lease. The cracks in the property had been inspected and had been found not to be structural and were routine repairs. It had found no evidence and or documentation showing a causal link between the cracks in the property and the works carried out.
It also explained that the building’s insurance was to ensure significant works or replacement was undertaken in case of fire, subsidence or any other significant events. Its purpose was not to cover the cost of a routine item of repair within the property. It noted that the resident’s home and contents insurance may cover such items.
On 17 February 2021 the landlord’s internal emails noted that the surveyor had attended the neighbour’s property, and specifically inspected the area where the disabled facilities grant work had been undertaken. It noted that its understanding was that a lightweight block partition wall had been removed, which was non load–bearing.
On 3 March 2021 the landlord wrote to the resident confirming that it had spoken to the neighbours to clarify what work had previously been undertaken and about the contemporaneous work occurring. It had requested they fill out permission forms even though these would not normally be required for decoration works on account of the dispute with the resident. It noted the resident’s reports that the neighbours had responded poorly to their enquiries and offered to arrange mediation between the parties, and communicated the same to the neighbour.
On 29 March 2021 the landlord wrote to the resident noting that since its response of 4 December 2020, the resident had reported on 24 March 2021 that further work was going on in the property below and causing them to suffer from excessive dust and ongoing noise. Regarding the previous allegations the resident had made against the work in terms of work undertaken in the property, it noted that its surveying services manager had examined both the resident’s and the neighbour’s property on the same day. It set out the following findings:
1. The property had been checked and no internal walls had been removed. A built-in airing cupboard had been removed as part of the local authority undertaking bathroom works. The walls to this cupboard were not structurally load-bearing and would commonly be removed in this type of work.
2. In respect of the cracks in the resident’s property, the staff member’s professional opinion was that the works being carried out in the property below could not have caused the type of cracks shown. It was also confirmed that in some areas within the property the internal plaster was blown, as confirmed by the hollow sound when tapping the plaster. These types of defects could be expected within a property of this age and would be considered general wear and tear.
3. It confirmed that the resident was responsible for these repairs under the terms of the lease.
On 30 March 2021 the resident replied to the landlord stating that the landlord’s responses had been contradictory, based on the fact that the 6 November 2020 response stated that no walls had been moved or replaced in the neighbour’s property, which he considered to contrast with what had been said in the 29 March 2021 response given the airing cupboard had been removed, including its walls.
On 24 June 2021 the landlord sent the resident a “clear English summary” of his lease responsibilities, which set out the repair obligations of both parties under the lease.

Policies and Procedures

The resident’s lease sets out that the resident is responsible for maintaining in good repair and condition the internal part of his property including the walls, sewers, drains, pipes, cables and wires. The landlord is required to maintain the external part/main structure of the building, including:
1. Foundations and the roof
2. Drains, gutters and external pipes
3. Gas, water pipes, drains, electric cables on the “estate”
4. Entrances, passages, landings, staircases and forecourt
5. Paths and roads
6. Decorating of the exterior of the building and communal passages, landings and staircases

Assessment and findings

The Ombudsman is concerned with whether the landlord acted reasonably in response to the repair issues raised by the resident, his communication with it about the attempted insurance claim and its management of the subsequent complaint. A significant part of the correspondence and evidence on the file concerns the key point of whether the works carried out by the resident’s neighbour have been the cause of the cracks appearing his property. The resident and landlord have maintained consistent opposing positions on this point, and this had led to a stalemate in finding a resolution to the complaint. It is not the role of the Ombudsman to make a finding on causation or liability in regard to the cracks, whether subsidence has occurred or any other technical assessment as to how such damage has occurred and its extent. This is because the Ombudsman’s role is not to answer questions on causation or liability as these are better suited for consideration by the courts. Instead, the investigation is concerned with whether the landlord responded reasonably to the resident’s raised concerns.
The evidence demonstrates that the landlord undertook a thorough investigation into the repair issues raised by the resident to establish who was responsible for these. Following the initial raising of the issue, the landlord reviewed photographic evidence provided by the resident and came to the conclusion that there was no evidence of subsidence or damage being caused by the downstairs works as the resident had stated. It further justified its position noting that it would be an unlikely or uncommon occurrence for a property below to cause damage to the ceiling in a flat above, and also advised the resident that he could arrange for a surveyor to investigate the matter if he did not agree with the conclusions it had reached and/or considered them to be biased.
When the cracks reappeared as reported by the resident, the landlord acted appropriately by setting up an insurance claim and forwarding the available evidence to its insurer. In the following months, it arranged for its surveyor to attend the property to examine the raised issues, who concluded that there was no evidence of any subsidence or that the work had caused the cracks to appear. It also sought information from the resident on when the cracks had first appeared and asked him to set out the reasons for his belief that the work had caused the problems, specifically the type of noise he had heard from the downstairs property and for clarification on the type of work that was undertaken. Additionally, it contacted the neighbour to establish what sort of works had been carried out and to remind them of what sort of work was and was not allowed without permission from the landlord. All of these were valid steps undertaken as part of the investigation.
While the resident has relied on certain sections of the 3 July 2020 surveyor’s report to support his position that the evidence indicates the cracks were caused by the downstairs work, the landlord has responded reasonably by noting that this statement was instead a reflection of what the surveyor had been told prior to attendance, and fell well short of being a finding on causation. The landlord’s internal emails maintained the position that there was no evidence of the cracks being caused by the work in the property below, and this was communicated again to the resident on multiple occasions. It sought to gather evidence via a variety of means, and each attempt came to the same conclusion that the works were not the cause of the cracks. It was entitled to rely on the expert advice of its contractors and surveyors, and in the absence of contradictory evidence from the resident, the position it took was reasonable.
The resident has acknowledged that it was only made aware late in the complaint process of the restrictions/exemptions in the landlord’s insurance policy which led to his claim being rejected. While this was clearly a disappointment for the resident, it does not change the obligations on the landlord under its policies or the lease, or the terms of the insurance policy and the restrictions/exemptions included therein. The landlord communicated reasonably to the resident and maintained a consistent position on the matter, but also took steps to attempt to help him beyond advising him to just undertake the repairs himself. It offered to arrange mediation between himself and the neighbour, and made this offer to the neighbour as well. It also provided a “clear English summary” of both parties’ responsibilities under the lease at the resident’s request which was appropriate, though there was a delay in the response, as well as an explanation of its insurance policies and the payments the resident was making towards these.
The landlord did acknowledge that it should have ensured the resident was informed of the intention to carry out the works, and apologised that this did not happen, while acknowledging the resident was not required to be provided with formal notice or the information he had requested in the way he had asserted. The apology was appropriate as a recognition of this minor failing.
There was also a lack of clarity from the landlord in response to the resident’s enquiries and submissions about whether walls had actually been removed during the neighbour’s work or not. While it eventually established a consistent position that no load-bearing walls were removed, and only that a lightweight block partition had been demolished, there was a lack of clarity on this point in its early responses. This would have caused frustration to the resident who maintained that structural walls may have been removed during the work.
Additionally, the landlord’s position that the surveyor’s report did not amount to a finding on causation does not completely align with the wording that is evident in the report, which states “it is likely that the cracking is related to the works”. The landlord is correct in stating that this does not amount to a determination on causation, but it also is strongly suggestive of this as a possibility. While it is not up to the Ombudsman to make a finding on causation, it would have been appropriate for the landlord to investigate this hypothesis at an earlier stage given the possibility suggested by the report. Given evidence was eventually gathered to support the position that the works were not the cause of the issue, the position the landlord originally took in relation to the report does not amount to service failure. However it may have been able to resolve the matter sooner had it taken on board the resident’s concerns which were reasonable given the contents of the report, and by commencing a more thorough investigation at an earlier point.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there has been no maladministration by the landlord regarding the complaint about the landlord’s response to the resident’s reports of repair issues with cracks in his walls and ceiling.

Reasons

The landlord carried out a reasonable investigation into the concerns raised by the resident about the cracks appearing in his property. It considered the resident’s beliefs about the cause of the issues, attended the properties to examine the issue and relied on expert staff and contractor advice to support the position it took in regards of causation and its responsibilities under the lease. It was entitled to advise the resident to make a claim under his personal insurance given the scope and terms of its building insurance which did not include such damage.