Southwark Council (202015389)

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REPORT

COMPLAINT 202015389

Southwark Council

8 November 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 how the landlord handled:
1. A water leak into the property reported by the resident in April 2019.
2. A water leak into the property reported by the resident in August 2020.
3. The formal complaint into these matters.

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 aspect of the complaint is outside of the Ombudsman’s jurisdiction.

How the landlord handled a water leak into the property reported by the resident in April 2019

As part of his request to escalate the complaint through the landlord’s process, the resident raised the events relating to a leak from the property above reported on 21 April 2019. He requested that the landlord investigate whether this leak was related to the leak reported on 6 August 2020.
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 we 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 and taking into account the availability and reliability of evidence, this assessment does not consider any specific events prior to February 2020. The historical issues provide contextual background to the current complaint, but the assessment is focussed on the landlord’s actions in responding to the more recent events and, specifically, to the formal complaint made in October 2020.

Background and summary of events

Background

The resident is a leaseholder of the landlord, which is a local authority. The property is a maisonette in a communal building.
The landlord prioritises its repairs as; emergency (attend within 24 hours), urgent (attend within three working days) and non-urgent (attend within 20 working days). The landlord describes an emergency repair as a repair that “poses a serious risk to health and safety”. The landlord also states that it will usually aim to attend an emergency repair within two to four hours to make safe, then return to complete repairs at a later date.
During the period of this complaint, the landlord’s services were affected by the Covid-19 pandemic. Up until 21 June 2020, the landlord only attended emergency repairs and in the following weeks it warned residents to expect delays in attending non-urgent repairs.
The landlord operates a two-stage complaints policy. On receipt of a complaint, the landlord will provide a complaint response at stage one within 15 working days. If the complainant is dissatisfied with the response, they can request an escalation of the complaint to stage two and a review of the complaint will be undertaken. A stage two complaint response will then be sent to the complainant within 25 working days of making the escalation request.
The landlord’s complaints policy also states that it would not normally consider a complaint made 12 months after the issue occurred, but that it would consider making an exception for a case where there was a reasonable explanation for the delay.

Summary of events

The landlord’s repair logs state that:
1. The resident called on 6 February 2020 to report a leak. The landlord passed the call on to its leaks from above team to investigate.
2. On 5 August 2020 the resident reported a leak that was going into the lights in the bathroom. A repair work order was raised to make the area safe and was marked as completed on 5 August 2020.
3. On 6 August 2020, the resident reported a leak within a cupboard in the kitchen. Work orders were raised to attend to the leak and make safe the electrics in the property. The work to make safe the electrics was marked as completed on 6 August 2020 and the work to resolve the leak was marked as completed on 10 September 2020.
4. On 8 August 2020 follow-on work was raised to reinstate electric to the boiler. This was marked as completed on 8 August 2020.
5. On 21 August 2020 further follow-on work was raised to make safe the toilet and landing lights affected by the leak and to assess whether the bathroom light could be reinstated. This was marked as completed on 21 August 2020.
On 14 October 2020 the resident wrote to the landlord and requested to raise a formal complaint. He described the elements of his complaint as:
1. He had experienced ongoing issues of noise nuisance and leaks from the property above for over two years.
2. There had been delays in resolving the leaks due to his neighbour not giving the landlord access to the property above.
3. He should not be liable for the costs for the damage to his personal belongings caused by the leak, as the fault lie with the landlord for not resolving the leak in a timely manner.
The landlord acknowledged the complaint on 14 October 2020 and arranged a telephone meeting for 4 November 2020 to discuss the elements of the complaint. The landlord sent a stage one complaint response to the resident on 4 November 2020. The landlord informed him that:
1. It confirmed with the resident during the telephone call that the leak had been resolved and no repairs remained outstanding.
2. It had provided the resident with information on how reports incidents of antisocial behaviour (ASB) and noise nuisance.
3. As a leaseholder, it was the resident’s responsibility to arrange internal repairs to his own property and cover the costs of such repairs.
On 5 November 2020 the resident wrote to the landlord and requested an escalation of the complaint on the grounds that:
1. The stage one complaint response did not address the circumstances of the leak, only that it was repaired.
2. The leak in August 2021 caused flooding to his property. He had to pay £250 for flood damage and as a result his insurance premiums would increase. The resident’s insurance provider believed he was owed recompense from the landlord, and they would be contacting the landlord directly to discuss this further.
3. The stress of the situation has had taken a toll of the health of both the resident and his family. This should have been recognised by the landlord in its response.
The resident wrote to the landlord on 16 November 2020 and again on 20 November 2020 requesting an update on his escalation request. The landlord replied on 20 November 2020. It explained that it was investigating the matter further to determine whether it was liable and whether it needed to account for delays in resolving the leak, and if the payment of compensation was warranted.
The landlord wrote to the resident on 3 December 2020 and informed him that the issue had been passed on to a manager to review and that once this further investigation had been concluded, it would provide a response.
The resident replied on 19 December 2020 and expressed his dissatisfaction with the delays in providing a response. He also informed the landlord that he was now considering taking legal advice over the matter.
On 23 December 2020 the landlord sent a follow-up stage one complaint response to the resident. It informed him that:
1. It only considered compensation relating to repairs and not issues concerning ASB as that would first need to be progress through its ASB procedures. It advised the resident on how to report incidents of ASB.
2. Following its investigations, it was satisfied that it had attended to the leak in a timely manner and took all necessary and appropriate action to remedy the issue.
3. The leak appeared to be a one-off event and there was no evidence it occurred as a result of inaction by the landlord.
4. Therefore, based on the information above, it would not be offering compensation to the resident as it had not identified any service failure.
On 5 January 2021 the resident called and then wrote to the landlord disputing the conclusions from the follow-up response. He noted that:
1. A previous leak from the same property above had occurred on 21 April 2019. Following on from this leak, the resident informed the landlord how the resident of the property above had been behaving, but this had not been properly investigated.
2. The second leak occurred on 6 August 2020. This caused significant flooding and damage to the property and required the assistance of the fire brigade to stop the leak.
3. He was informed by an operative during the follow-on work that the resident in the property above had denied access to the landlord on three occasions.
4. The landlord was therefore liable and should pay compensation as it had not followed its obligations and attended the property above in a timely manner.
On 5 February 2021, the resident’s Member of Parliament (MP) passed on an email sent to them by the resident describing his unhappiness with how the landlord had handled the leak.
The resident wrote to the landlord on 3 March 2021 and requested an update on the status of his complaint. The landlord replied on 3 March 2021 and informed him that it stood by its position from the stage one follow-up response that it would not consider compensating the resident. The email sent by the landlord did not make any reference to the resident’s formal complaint or his request to escalate the complaint.
On 11 March 2021 the resident wrote to the landlord and stated his dissatisfaction with the length of time it was taking to make the decision to escalate the complaint to stage two. The landlord replied on 11 March 2021. It confirmed that the complaint had been escalated to stage two of its internal complaints process and that the staff member assigned to the complaint would be in contact. It also advised the resident that it was currently experiencing a backlog in processing complaints.
The stage two complaint response was sent to the resident on 13 April 2021. The landlord informed him that:
1. As the April 2019 leak occurred over 12 months from when the resident raised the complaint, this was not investigated as part of the stage two complaint review.
2. Following a review of its actions as they relate to the August 2020 leak, it was satisfied that it had taken all necessary action and that there was no evidence that the two leaks were related.
3. Due to data protection regulations, the landlord was not able to provide detailed information on what work was done at the property above. Also, for the same reason, the landlord was not able to give updates to the resident at the time when the work was ongoing.
4. There was also outstanding work from another property in the building which the landlord requested that the occupier carry out which was not immediately done. This led to additional delays in completing the work, as the landlord must allow time for the occupier of that property, who was a leaseholder, to arrange to have the work completed and then for the landlord to inspect the work.
5. It recognised that the situation had been difficult for the resident and the impact that this had had on both him and his family. However, as it had not identified that it had caused any failings, it would not consider offering compensation.
On 10 August 2021 the resident wrote to this service and described the outstanding issues and desired outcome to the complaint as:
1. Due to how the poorly the landlord handled its response to the leak, the resident lost his no claims bonus for his home insurance as the landlord’s own insurance would not cover the costs of replacing the carpet in the property. It therefore fell on the resident to cover this cost through his insurance policy.
2. The landlord should pay compensation that reimbursed the resident for his damaged items and also for the stress and inconvenience caused to the resident and his family for not properly resolving the matter.

Assessment and findings

How the landlord handled a leak into the property reported by the resident in August 2020

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 the landlord to report leaks, it then informs its leaseholders that the landlord 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 between itself and its contractor relating to required work at two neighbouring leasehold properties to resolve the August 2020 leak, and a copy of the repair logs for the building.
Overall, the landlord has followed its repairs policy as set out above when responding to the resident’s report of a leak. Reports deemed as an emergency were responded to within 24 hours and follow-on work was then raised. It is not clear that all follow-on work was attended to within 20 working days. However, during this period the landlord’s services were affected by the Covid-19 pandemic. The landlord kept its resident updated via its website on the status of its services and had advised that delays to non-emergency repairs were likely. This was in line with general industry practice at the time as many landlords were running a reduced repairs service due to the effects of the pandemic and the associated restrictions. Whilst the length of time taken to resolve the leak would have understandably caused frustration and worry to the resident, the landlord would not be expected to compensate for delays that were outside of its control.
The landlord’s correspondence shows that it adhered to its obligations as freeholder of the building to leaseholders, as described in the leaseholder’s handbook. The landlord said it was unable to share detailed information about repairs involving other residents’ properties, for data protection reasons as it could not share other residents’ personal information without their consent. The Ombudsman is similarly unable to share details about the repairs to other properties within the building or the steps the landlord took to gain access to these properties. However, based on the information the Ombudsman has been provided with, we are satisfied that the landlord took reasonable steps to address the leak which the resident had reported on 6 August 2020.

In his email sent to the landlord on 5 November 2020 requesting an escalation of the complaint, the resident described the adverse effect on his and his family’s health caused by the issues he raised in his complaint.
The Ombudsman does not doubt the resident’s comments regarding his health and that of his family, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. If the resident considers that his health has been affected by any action or inaction by the landlord he may wish to raise this as a claim against the landlord’s liability insurer or take legal action. If the resident wishes to pursue legal action, he may wish to take independent legal advice. The Ombudsman is unable to give legal advice and therefore we cannot comment on this matter further. However, consideration has been given in our investigation to the general distress and inconvenience which the situation has caused the resident and his family.

The landlord’s complaint handling

The landlord addressed the complaint in line with its complaints policy at stage one of its internal process, but it did not follow its complaints process correctly at stage two. Following receipt of the stage one response, the resident wrote to the landlord the following day and requested an escalation of the complaint. The resident explained the reasons why he was dissatisfied with the response and what his outstanding issues were. The landlord did not acknowledge this request. However, it kept in contact with the resident and responded to the element of his escalation relating to compensation. However, this was dealt with as a follow-up response at stage one and the landlord did not escalate or fully review the complaint.
The stage two complaint response was sent to the resident on 13 April 2021, 109 working days from when the resident first requested an escalation on 5 November 2020. The response stated that the resident had made an escalation request on 3 March 2021. The landlord did not refer to the resident’s first request to escalate the complaint or his emails requesting an update to his escalation between 5 November 2020 and 11 March 2021. It also did not provide a reason for this delay or apologise to the resident.
The delays in providing the stage two complaint response, and not providing an explanation or reason for the delay, was a service failure by the landlord. The landlord should pay compensation as set out be low In order to resolve this aspect of the complaint.
The Ombudsman’s remedies guidance (which is available on our website) suggests a payment of £50 to £250 for instances of service failure resulting in some impact on the complainant. As an example of when this level of redress should be considered, the guidance suggests “failure to meet service standards for actions and responses but where the failure had no significant impact [on the outcome of the complaint].”
In this case, while there was a significant delay in escalating the complaint, the landlord remained in contact with the resident and considered his compensation request in a follow-up response to the stage one complaint response.
It would therefore be appropriate for the landlord to pay the resident £150 compensation for any distress and inconvenience caused by the delays in escalating the complaint and providing a full stage two complaint response.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of how it handled a leak into the property reported by the resident in August 2020.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its complaint handling.

Reasons

The landlord corresponded with the resident’s neighbours who were responsible for the water leak into the resident’s property in order to locate the source of the leak and undertake work to resolve the issues, in accordance with its obligations as freeholder of the building.
The landlord did not follow its complaints policy correctly, which resulted in a significant delay in escalating the complaint and providing a full review of its complaint handling at stage two of its internal complaints process.

Orders

The landlord is ordered to pay the resident £150 for the service failure in its complaint handling. This payment should be made within four weeks of the date of this report. The landlord should update this Service when payment has been made.