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Southwark Council (202112398)

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REPORT

COMPLAINT 202112398

Southwark Council

9 January 2024

 

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 the landlord’s response to the resident’s report of leaks from a neighbouring property.
  2. The Ombudsman has also considered the landlord’s complaint handling.

Background

  1. The resident has occupied the property, a 2 bedroom duplex flat with a basement and ground floor, on a secure tenancy since 1995. She has Multiple Sclerosis.

Summary of events

  1. The resident complained to the landlord by telephone on 17 August 2021 about the neighbour upstairs using buckets to wash. She said it was causing a leak through her hallway ceiling, where cracks were forming. The landlord acknowledged the complaint the same day. An internal landlord email of 20 August 2021 noted a plumber could find no leak at the property. It therefore supported the resident’s claim that the issue was likely caused by the upstairs neighbour misusing the bathroom.
  2. On 23 August 2021, the resident telephoned the landlord to report that her ceiling had collapsed due to water coming from the upstairs neighbour’s property. The landlord then discussed the complaint with the resident on 24 and 25 August 2021, and an internal landlord email noted it had explained to her that, once the hall had dried out, it would arrange to renew and paint the ceiling and walls. She was advised scaffolding would need to be fitted. The job was allocated to someone to manage and it was noted that a member of staff would need to visit the neighbour, as they were bucket bathing.
  3. On 27 August 2021, the resident reported that there was water leaking from the neighbouring upstairs property again as a result of them bathing. Whilst this had stopped by 28 August 2021, a plumber attended the neighbour’s property on 29 August 2021 to unblock the toilet.
  4. In the landlord’s stage 1 response of 8 September 2021, it summarised the background to the complaint and noted that a technical quality officer had visited the resident’s home on 24 August 2021, and renewal and painting works had been raised for when the ceiling and walls had dried out. It said it would monitor the works until they were completed and a Resident Services Officer would contact both the neighbour in the flat above about the leaks, and the resident to discuss the effect it was having on her.
  5. The resident contacted the landlord on 28 September 2021, about her complaint being escalated to stage 2 and she wanted to know when the remedial works would start. The landlord noted she was upset when she called. An internal email was also sent asking for the repair work in the hall to be booked in as a matter of urgency.
  6. The resident’s solicitor instructed a company to produce a surveyor’s report on the property on 29 September 2021, and issued a letter of claim against the landlord on her behalf. In addition to the ceiling collapse in August 2021 and the associated repairs, the claim included a number of issues which did not form part of the resident’s formal complaint and are not considered as part of this investigation.
  7. The landlord spoke with the resident on 1 October 2021 and explained someone would be coming out on 7 October 2021 to measure up for scaffold to be fitted in order to repair the ceiling and paint the hallway. An appointment would then be made for the scaffold to be fitted. On 3 November 2021 operatives attended the property to plaster the ceiling but they were refused access. The landlord noted the resident advised that her solicitor had asked her not to allow the operatives access that day.
  8. A surveyor attended the property on 11 November 2021 and found the ceiling had been re-plastered but not decorated and the scaffold remained in place which made it difficult for the resident to access the ground floor of the property. It noted redecoration work was still required in the hall, landing and staircase. On 15 November 2021, a schedule of works was sent to a Legal Disrepair Officer and then referred to the Leaks from Above team in order to find out when the scaffold would be removed.
  9. The landlord was sent a copy of the survey carried out by the resident’s legal team on 22 December 2021. It found the collapsed ceiling had been repaired but was not finished. The staircase had been blocked by scaffolding that was erected to carry out works to the ceiling. The leak from the flat above and a failure to rectify, would inevitably lead to further deterioration of the internal finishes and prevent the resident from fulfilling their obligation to decorate the property. A schedule of works was sent to the landlord by the resident’s legal team on 30 December 2021.
  10. The Ombudsman contacted the landlord on 23 December 2021 and 18 January 2022, and was advised on 20 January 2022 that the complaint had been escalated to stage 2. The landlord said the resident would receive a response by 17 February 2022.
  11. The ceiling was repaired and painted by 28 January 2022, the scaffolding was removed on 3 February 2022 and redecoration of the walls was completed on 11 February 2022.
  12. In the absence of a stage 2 complaint response, the Ombudsman chased the landlord on 21 April 2022 and was advised the following day that a response had not been sent, as the resident had made a disrepair claim. A further letter was sent to the landlord on 22 April 2022, explaining that a letter of claim did not mean proceedings had started so the complaint should still be progressed to stage 2.
  13. A Complaint Handling Failure Order was issued to the landlord by the Ombudsman on 4 May 2022 as the landlord had not addressed the complaint made; in particular the point about scaffolding being kept up unnecessarily. The landlord has said a stage 2 response was never issued because the resident had indicated her intention to commence disrepair proceedings.
  14. All remedial works that formed part of the disrepair claim were completed by 13 May 2022.
  15. The landlord’s solicitor issued a Part 36 offer to the resident and her solicitor on 19 May 2022 with the following terms:
    1. It would pay her the sum of £2,000 in full and final settlement of the claim.
    2. It would pay her reasonable legal costs to be subject to detailed assessment if not agreed.
    3. The resident had confirmed all works had been successfully completed as set out in the schedule of works accompanying a report dated 29 December 2021.
  16. The resident accepted the Part 36 offer to settle the claim in June 2022. Works were post inspected on 17 June 2022 and were confirmed to be completed to satisfactory standards.

The landlord’s obligations, policies and procedures

  1. The landlord’s Complaints Policy March 2021 says, it acknowledges complaints by phone or in writing within 3 working days. It will provide a response to the complaint within 15 working days and, if a review is requested, a response would be issued within 25 working days.
  2. It says complaints “where legal proceedings, court or tribunal action is being taken (although related issues that are not subject to legal proceedings may be considered)” are not considered under its Complaints Policy. It goes on to say if someone cannot be put back in the position that they would have been in but for its mistake/delay then it would consider financial compensation as a substitute.

Assessment and findings

Landlord’s handling of reports of leaks

  1. The water penetration issues from August 2021 meant the resident had to have remedial work carried out to her property and she is unhappy with the length of time the scaffolding was up and the inconvenience this caused. Having formally complained to the landlord about this issue, the resident also raised it as part of a broader disrepair claim which covered issues that do not form part of this investigation.
  2. The claim was ultimately settled without the resident actually issuing legal proceedings and compensation was paid to resolve all issues that formed part of the claim. This included the leak that occurred in August 2021 and the associated inconvenience of remedying the situation. As no finding was made in court, the fact of the resident following the disrepair pre-action protocol and Part 36 process does not preclude the Ombudsman from considering the matter now, in accordance with the terms of the Scheme. With that in mind, it should be noted that the scope of this investigation is limited to the issues raised within the resident’s formal complaint, in relation to the landlord’s handling of the leak in August 2021 (and not the broader disrepair claim).
  3. It is accepted by both parties that the water ingress was caused by the upstairs neighbour’s actions, rather than any disrepair issues. The landlord appropriately advised that it would speak with the neighbours about their behaviour, but it is not known from the evidence whether it did that. However, things did then seem to improve which indicates that it did.
  4. As a result of the damage to the resident’s property, work needed to be carried out to repair and repaint the ceiling. The landlord told the resident in August 2021 that it would arrange for the repair work to be done, and that it would be monitored. However, even allowing for some time for the property to dry out, it is apparent the resident was left to chase the landlord on 28 September 2021, to find out when the work would be done.
  5. The landlord did then follow up, but only after the resident had explained how upset she was with the time things were taking. This indicates the landlord was not proactively managing the work as it had promised which was unreasonable, as the resident should not have had to prompt it to find out when the work was going to be scheduled. The landlord should have been keeping the resident fully updated on progress and its failure to do that amounts to a failure in service.
  6. In October 2021 the landlord arranged for measurements to be taken for scaffolding to be fitted so the repair work could begin. The resident was clearly unhappy the scaffolding was then erected for several weeks and that it caused an obstruction. However, it is noted that operatives attended the property on 3 November 2021 to commence the works and were denied access, which meant they had to be rescheduled. This contributed to the delays, but was outside of the landlord’s control.
  7. Both the landlord and the resident’s solicitor arranged for the property to be surveyed. As a pre-action protocol was being followed, this was a reasonable step so a schedule of works to be agreed. However, it inevitably affected the timescales for completing the work.
  8. Overall it took nearly 6 months for all the work to be completed. Had access been obtained in November 2021, the work that was completed in January 2022 may have been completed 2 months earlier, and this may have meant the scaffold could have been removed earlier. While the Ombudsman notes the resident was acting upon advice from her solicitor, the landlord cannot be held responsible for this period of delay, or for the associated inconvenience of the scaffold remaining in place during that time.
  9. Once a schedule of works was complete the landlord ensured the work was carried out within a reasonable amount of time. However, there was a delay of nearly 2 months between August and October 2021, when the landlord did not take any action and had to be chased, which was unacceptable.
  10. While a shortfall in the landlord’s service has been identified, the impact on the resident over that time was modest. The scaffold had not yet been installed and there is only evidence of the resident chasing the landlord once. Therefore, a sufficient amount of compensation would be around £200. In this case, the resident settled her overall disrepair claim for £2,000 and, whilst the Ombudsman does not know the breakdown of this sum across the various issues raised therein, it is reasonable to deduce that a proportion of this addressed the leak repair. Therefore, the Ombudsman finds that the redress already paid by the landlord sufficiently resolves this part of the complaint.

Complaint Handling

  1. The landlord issued its stage 1 response 15 working days after the complaint was made, in line with its Complaints Policy (see above). However, when the resident asked for her complaint to be considered at stage 2, the landlord failed to provide a response at all.
  2. The landlord has explained that complaints subject to legal proceedings are not considered under its Complaints Policy. However, the Ombudsman is clear that, even when a landlord receives correspondence initiating a pre-action protocol, it should not disengage from the complaints process. Commencing the protocol does not constitute legal proceedings and ADR can be pursued at any stage of the protocol. The Ombudsman’s view is that a matter does not become ‘legal’ until proceedings have been ‘issued’. The issuing of proceedings involves filing details of the claim, such as the Claim Form and Particulars of Claim, at court. In this case, no such legal proceedings had commenced so the landlord should have complied with its obligations under its Complaints Policy, and issued a stage 2 response within 25 working days.
  3. In any event, if the landlord considered that legal proceedings were underway and it did not intend to respond to the complaint on that basis, it should have communicated this to the resident promptly. Instead, the landlord failed to respond to the complaint at all, which was understandably frustrating for the resident and caused her time and trouble in pursuing the matter with both the landlord and the Ombudsman. This amounts to maladministration.
  4. Having concluded that the landlord did not comply with its Complaints Policy, the Ombudsman has to consider the impact of that on the resident. In this case, the resident was frustrated at not receiving a response but there was no long term detriment to her. Having regard to the Ombudsman’s own remedies guidance and our Dispute Resolution Principles, it is considered that a reasonable amount of compensation to reflect the inconvenience to the resident would be £200.

Determination (decision)

  1. In accordance with paragraph 53(b) of the Scheme, the landlord has made an offer of redress prior to investigation which, in the Ombudsman’s opinion, satisfactorily resolves the complaint about the landlord’s handling of the resident’s reports of leaks from a neighbouring property.
  2. In accordance with paragraph 52 of the Scheme, there was maladministration in relation to the landlord’s handling of the resident’s formal complaint.

Reasons

  1. The landlord failed to initially monitor and communicate with the resident regarding the repairs and had to be chased for an update. However, it then recognised its failings and put things right but awarding a proportionate level of financial redress.
  2. There was a failure to comply with the Complaints Policy as the landlord did not respond to the complaint at stage 2. This is contrary to the Ombudsman’s guidance on pre-action protocols and ADR.

Orders and recommendations

Orders

  1. Within four weeks of the date of this report, the landlord is ordered to:
    1. Apologise to the resident for the failings identified by this investigation.
    2. Pay the resident £200 compensation to recognise the frustration and inconvenience caused to the resident, by failing to address the complaint at stage 2/the review stage.
    3. Carry out a review of its Complaint Policy and ensure all staff that deal with complaints are clear on when legal proceedings have been issued and when a stage 2 response/review should be issued. It should also ensure complainants are notified if the landlord does not intend on addressing a complaint.