Southwark Council (202010571)

REPORT

COMPLAINT 202010571

Southwark Council

28 April 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 concerns:
1. The landlord’s response to reports of a water leak into the resident’s property.
2. The landlord’s refusal to provide the resident with detailed information concerning the source of the leak and what repairs it undertook to resolve the issue.
3. The landlord’s decision to only consider events 12 months prior to the date when the complaint was raised when addressing the complaint.

Jurisdiction

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 will not be investigated. After carefully considering all the evidence, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction.

Data Protection Issues

Paragraph 39(m) of the Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.
The resident had requested more detail from the landlord as to what actions it took to locate the source of the leak and what work it had taken to resolve the issue. The landlord declined this request due to data protection restrictions.
Matters relating to data protection and freedom of information are outside the Housing Ombudsman’s remit to consider as these issues fall properly within the jurisdiction of the Information Commissioner’s Office (ICO). The resident may be able to refer her concerns about the landlord’s refusal to provide further information to the ICO if she wishes to.

Issues of water leaks prior to July 2019

The resident has highlighted several reported water leaks that have occurred in the property since 2003. The landlord informed the resident that it would only consider events from the 12 months prior to the formal complaint being raised.
The Ombudsman encourages residents to raise complaints with their landlords in a timely manner, so that the landlord has a reasonable opportunity to consider the issues whilst they are still ‘live’, and whilst the evidence is available to reach an informed conclusion on the events which occurred. As the substantive issues become historical, it is increasingly difficult for either the landlord, or an independent body such as the Ombudsman, to conduct an effective review of the actions taken to address those issues.
This is in accordance with paragraph 39(e) of the Scheme, which states that the Ombudsman will not consider complaints that 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. In view of the time periods involved in this case, taking into account the availability and reliability of evidence, this assessment does not consider any specific events prior to March 2019. The historical issues provide contextual background to the current complaint, but the assessment is focused on the landlord’s actions in responding to the more recent events and, specifically, to the formal complaint made in July 2020.

Background and summary of events

The resident is a leaseholder of the landlord, which is a local authority. The property is a flat in a communal building. Both the resident and her daughter have corresponded with this Service as well as the landlord during the period of this complaint. For reasons of clarity, the resident and her daughter have been collectively referred to as ‘the resident’ within this report.
On 18 July 2020 the resident contacted the landlord and requested to raise a formal complaint regarding the ongoing issue of water leaking into the property. The resident described the elements of her complaint as:
1. Over the previous 17 years, she had experienced nine separate leaks of water into the property.
2. After reporting a leak into the property in March 2019, the landlord informed her that it had identified the property that was the source of the leak. However, in June 2020 the leak reoccurred following a period of heavy rain.
3. The landlord had identified eight separate properties nearby as the source of leaks in previous years, but the resident believed that it was more likely that the condition of the pipework and the roof of the building had been the cause.
4. She had attempted to investigate the source of the water herself and found that in the communal hallway, on the floor above her property, the ceiling was damp and the floor “saturated with water”.
As a resolution to the case, the resident requested that the landlord identify and provide evidence of the source of the leak, then undertake repairs and provide evidence that the issue had been resolved.
The landlord sent a stage one complaint response to the resident on 24 August 2020. The landlord first informed the resident that, as per its complaints policy, it would only consider matters that had been reported in the previous 12 months. It would therefore not consider leaks which had occurred prior to July 2019. The landlord then informed the resident that:
1. It received a report of a leak from a neighbouring property on 18 June 2020. This was traced and resolved; however, due to data protection issues, the landlord was unable to provide the resident with any further detail.
2. It spoke with the resident on 23 June 2020, who confirmed that there had been no further leaks into the property.
3. Following mention of water ingress in a communal hallway, its contractors attended the building on 12 August 2020. However, no evidence of a leak was detected.
4. It had raised a repair order for an inspection of the building’s roof following the resident’s comments that water ingress would sometimes occur after rain. The appointment had been arranged for 25 August 2020.
The landlord also advised the resident how to inform it of any further leaks and how to make a claim against the building insurance for the block if a previous leak had caused damage.
On 3 September 2020 the resident wrote to the landlord and stated her dissatisfaction with the stage one response. She requested an escalation of the complaint to stage two of the landlord’s process on the grounds that:
1. The stage one response did not offer any resolution to the issue.
2. The landlord should have waived its policy of only considering the previous 12 months of a complaint due to the exceptional circumstances of the complaint.
3. She could not be sure if the source of the leak had been identified and resolved if the landlord was not willing to share any further detail about the work it had carried out to address the leak.
The landlord sent a stage two complaint response to the resident on 29 October 2020. It informed her that it had not upheld her complaint on the grounds that it was unable to disclose the information she had requested (the source of the water leak and the details of the repair) due to data protection restrictions.
The landlord also explained that although it was unable to provide any further detail, it noted that the resident had not reported any water leaks since the work had been completed. It was therefore confident that the matter had been resolved.

Assessment and findings

Section 8 of the leaseholders’ handbook describes repair responsibilities and states that “as a general rule [leaseholders] are responsible for any repairs inside of your home and the [landlord] is responsible for repairs to communal areas of the estate and the structure of the building”.
Section 9 of the handbook describes the process involved when a leaseholder experiences a leak from a property above. The handbook explains how residents can contact it to report leaks, then informs its leaseholders that it will:

“… make an appointment with you for a plumber to visit both you and the neighbouring property. It is important to note that, if the leak is from another leaseholder’s flat, it is the leaseholder’s responsibility to ensure the necessary work to fix the leak is carried out as quickly as possible.

In cases where communication between parties proves problematic the [landlord], where possible, will do its best to provide support to resolve the issue.

If you need to make an insurance claim, you may be asked to provide photographic evidence of the leak and the damage it has caused. Remember you must have home contents insurance in order to make a claim for any damaged furnishings or carpets etc.”

The landlord has provided this Service with correspondence from itself and neighbours of the resident relating to the two leaks described in the complaint responses (the first from March 2019, and the second from June to August 2020), and a copy of the repair logs for the building.
The repair logs state that following the stage one response, a repair order was raised to inspect the roof of the building. This was marked as completed on 25 August 2020 with no follow-on work recommended.
The evidence provided by the landlord also shows that it corresponded with the residents and leaseholders of the properties involved in leaks and ingress of water.
The correspondence shows that the landlord had worked with the leaseholders, their tenants and other external parties in locating the source of the leaks and providing support in relation to repairing the problems. It adhered to its obligations as freeholder of the building to leaseholders, as described in the leaseholder’s handbook. The Ombudsman is unable to share detailed information about repairs involving other residents’ properties as we cannot share other residents’ personal information without their consent. However, based on the information we have seen, we are satisfied that the landlord took reasonable steps to address the leaks which the resident had reported from 2019 onwards.
The landlord did not provide detailed information of the repairs to the resident during the complaint process. It informed her that for it to do so would be a breach of data protection regulations. As previously stated, it is not within the jurisdiction of this Service to comment on this aspect of the complaint and the resident can contact the ICO for further advice and information if she wishes to pursue this matter further.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to reports of water leaks into the resident’s property.

Reasons

The landlord corresponded with the leaseholders and tenants of the properties responsible for the water ingress into the resident’s property in order to locate the source and undertake work to resolve the issues, in accordance with its obligations as freeholder of the building. The landlord took appropriate steps to resolve the leaks reported from 2019 onwards.