St Albans City and District Council (201913967)

REPORT

COMPLAINT 201913967

St Albans City and District Council

23 December 2020

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 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 about:
1. leaks and remedial works
2. banding
3. noise transference
4. complaints handling and communication

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, in accordance with paragraphs 39(a) and 39(m) of the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction.

The landlord’s response to reports about noise transference

Paragraph 39(a) of the Scheme states that:
1. ‘The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale.’
The complaint was responded to at Stage 1 of the landlord’s complaints procedure in January 2020 and was not escalated within the timeframe required by the landlord’s complaints procedure. As it has not exhausted the landlord’s complaints procedure, the complaint is not one the Housing Ombudsman Service can investigate.

The landlord’s response to reports about banding

Paragraph 39(m) of the Scheme states that:
1. ‘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 Housing Ombudsman Service investigates complaints relating to a local authority’s activities as a landlord. As the Local Government and Social Care Ombudsman investigates complaints about applications for re-housing dealt with by a local authority, the complaint is not one the Housing Ombudsman Service can investigate.
The complaints about leaks and the landlord’s complaints handling and communication are within the Ombudsman’s jurisdiction and have been considered below.

Background and summary of events

Background

The resident is a secure tenant of a local authority landlord. The tenancy commenced in 2013. The tenancy agreement confirms the landlord’s repairs responsibilities to maintain and repair the structure of the building. The property is a flat in a block and the resident’s son has developmental disabilities.
The landlord operates a 2 stage complaints procedure. At Stage 1, response is within 10 working days, and complaints can be escalated in one calendar month, for Stage 2 response within 20 working days.
The landlord’s Repairs Handbook categorises repairs as Priority 1 or Priority 2. Priority 1 repairs are completed within 24 hours and include severe leaks, described on its website as a “water leak from a pipe, tank or cistern which cannot be contained.” All other repairs are routine Priority 2 repairs completed at resident convenience within 28 days. Surveyors may inspect where there are health and safety issues or complaints are made. Following a leak the landlord repairs physical damage, and contents damage and redecoration is tenant responsibility or should be covered by household contents insurance.
The landlord’s website states leaseholders are responsible for waste water and sewerage pipes, and bath and WC fixtures and fittings. The landlord’s website states it has right to enter a leasehold property to repair if there is danger to other residents.
Paragraph 3(6) of the lease for the flat above the resident covenants with the council “to permit the Council and its respectively duly authorised Surveyors or Agents with or without workmen and others at all reasonable times upon giving three days previous notice in writing (and in case of emergency without notice) to enter into and upon the flat or any part thereof for the purpose of repairing any part of the building…and also for the purpose of laying down maintaining repairing testing disconnecting stopping up removing or renewing drainage gas or water pipes…”

Summary of events

On 28 September 2019, the resident states they reported a leak from the flat above them and from the resident’s account, the landlord isolated electrics including for a bathroom fan. On 30 September 2019, the landlord’s contractors attended to check electrics and if the leak was still ongoing. They identified electrics were all fine and no sign of water touching electrics. On 8 October 2019 the contractors attended, noting a damp ceiling in the resident’s flat, and identified a leak from the leasehold flat above’s bath waste and trap that they note they asked the owner to repair.
On 28 October 2019 the resident complained to the landlord that:
1. It had not done anything about the worsening issue in four weeks.
2. It was neglecting its duty of care to vulnerable residents.
3. It needed to assess cosmetic damage and invoice the leaseholder of the flat above, who she had tried to contact.
4. She and her disabled son were living in unhealthy conditions, breathing in damp spores.
5. She was collecting drips with a bucket and was concerned about constantly trying to prevent her son going near it.
6. There was damage to wooden floor, walls, ceiling and her son’s books, and electrics to a fan had been isolated.
On 29 October 2019 a surveyor inspected both properties. On 4 November 2019 contractors sealed the bath and shower in the above flat to rectify a leak, and on 8 November 2019 they fixed a leak on the above flat’s WC.
On 11 November 2019 the landlord issued its Stage 1 response. It explained the lease required notifying the leaseholder of the flat above to carry out repairs. It could only force entry if it did not receive response after 30 days and within this timescale the leaseholder authorised it to complete works. It explained three leaks were identified and resolved in and around the bath area, and two further leaks were identified after further inspection. It explained both bath leaks and leaks from the toilet were encased behind panelling, so it would have been impossible to identify these until more serious. It apologised for the inconvenience caused and stated contents insurance was the resident’s responsibility, however offered £75 towards the resident’s son’s books and confirmed as “a gesture of goodwill” the following works had been raised:
1. Asbestos survey.
2. Remove lounge shelving, repair water marks and refit shelving.
3. Replace damaged skirting board and decorate.
4. Mould wash and patch decorate affected areas of walls and ceiling.
On 5 December 2019, after an email not seen by this Service, the landlord escalated the complaint. On 16 December 2019 the resident emailed reporting a recent fast flowing leak requiring buckets and mopping, and it not being possible to turn on the fan to help deal with the ingress. She asked what the landlord intended to do and for a timescale of works. On 18 December 2019 its surveyor and contractor inspected and identified the shower screen in the above flat was letting water by and raised works to replace it.
On 20 December 2019, in reply to a councillor, the landlord confirmed an appointment was arranged for 23 December 2019 to install and seal the new shower screen in the above flat, and rectify lighting and smoke detectors in the resident’s property. It explained issues with accessing the above flat.
On 8 January 2020, according to the landlord’s records its surveyor again inspected to assess damage and to try and arrange access to the above flat.
On 14 January 2020 the landlord issued its final response. It apologised for the delay resolving the leaks and the impact on the resident and her son. It acknowledged the resident felt works should not have waited on access. It explained this would require extreme circumstances and obtaining a court order “as a very last resort.” It acknowledged the leaseholder had delayed in responding, but noted it obtained permission for necessary work on 16 October 2019. It explained it had rectified multiple leaks, and currently a new bath screen was on order to be installed as soon as possible. The landlord acknowledged leaks were not identified and remedied in a timely way, leading to disruption to the resident and her son and the issue becoming protracted. It confirmed the case would be reviewed with contractors and offered the resident “a goodwill gesture” of £250 for the ongoing leaks into the property.
On 21 January 2020 and 31 January 2020 the resident emailed the landlord about lack of timescale for repairs, and requesting an inspection.
On 21 January 2020, in reply to another councillor referred the matter by a MP, the landlord stated it had tried contacting the resident to arrange repairs to her property. It noted water was dribbling through an “articulated” (i.e. hinged) bath screen in the above flat and finding its way into the property, and that it would install fixed bath screens. After difficulty sourcing screens, these works were completed on 23 January 2020. Between January and September 2020, the landlord updated the councillor.
On 31 January 2020 the landlord confirmed to the resident a surveyor would inspect on 3 February 2020 to identify any new issues, then provide a timescale for completion of works. Following this, in the flat above, the surveyor identified small amounts of water were leaking past the bath screens, which would be remedied. He noted this was probably not enough to affect the resident. In the resident’s flat, he noted originally specified works remained necessary and an asbestos survey was undertaken. He noted further issues resulted from condensation, partially from leaks and a defective bathroom fan, and partially from lifestyle. He gave guidance to the resident about this.
On 5 February 2020 the surveyor instructed contractors to priority complete identified repairs. In addition to ones identified in November, this included repairs for window seals; replastering; ceiling redecoration; electrics; fan; door redecoration; air bricks; and external pointing. Following this, works were raised with a delay by the contractors, that they explained was partially due to volume of works and organising them. Repairs in the above flat to apply silicone sealant were completed on 9 March 2020, after which reports of leaks cease. Works to the resident’s flat were agreed for 12 March 2020, then changed at the resident’s request to 26 March 2020.
Since then, repairs to the resident’s flat have remained outstanding. Events from March 2020 to the present include:
1. On 25 March 2020 contractors attended unexpectedly, identifying more time was required and postponing works.
2. On 14 April 2020 works were scheduled but postponed due to Covid-19.
3. On 24 July 2020 it is noted the resident postponed works.
4. The resident reports during lockdown contractors turned up with an incorrect to-do list with two hours allocated for an extensive job.
5. On 9 September 2020 contractors attended without access.
6. On 14 September 2020 contractors collated a repairs list for a third time, more limited than previous ones.
7. On 17 September 2020 contractors attended without access, around which time the landlord raised concern contractors were not attempting enough ways to communicate with the resident.
8. On 21 October 2020, contractors emailed the resident to book works.
9. On 12 November 2020, contractors emailed confirming 18 and 19 November 2020 were arranged, detailing its limited scope of works. This was then adjusted to include works identified on 11 November 2019 but not 5 February 2020.
10. On 16 November 2020, the resident stated the dates were no longer convenient, and she would contact when available, but raised concern about scope of works and the delays due to contractor mishandling.

Assessment and findings

The Ombudsman’s role includes an assessment of whether the landlord has followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case.

The landlord’s response to reports about leaks and remedial works

In accordance with the terms of the Tenancy Agreement and the Landlord and Tenant Act 1985, the landlord is responsible for the repair and maintenance of the structure of the property. As a result, it was necessary for it to investigate the resident’s reports of water ingress and take appropriate steps to resolve any issues it identified.
After initially investigating the issue, the landlord acted in accordance with leaseholder repair responsibilities by requesting the leaseholder to repair a leak from their bath waste and trap. The landlord then reached agreement with the leaseholder so that it could carry out any repairs and completed multiple plumbing repairs on 4 and 8 November 2019, the week after the resident’s formal complaint. This demonstrates the landlord accepted its obligations and took a leading role in inspecting the leasehold property and arranging for repairs to be carried out.
On further reports from the resident, on 18 December 2019 the landlord identified the shower screen was letting water by and replaced this within a week. Around 8-14 January 2020 it identified water was penetrating through a hinged screen and replaced this with a fixed screen on 23 January 2020, after a delay due to issues sourcing screens. On 3 February 2020, it identified further application of sealant was required to stop water leaking through, and completed this on 9 March 2020. This demonstrates the landlord conducted investigations and repairs in a reasonably timely manner once it was made aware of reports of water ingress, considering these relied on access to the leasehold flat.
As part of its investigation of the repairs, the landlord assessed the resident’s reports of damage, damp and unhealthy living conditions. It confirmed there was no structural damp and gave appropriate advice about minimising condensation. It raised a number of works, including ones normally tenant responsibility under its policies, in November 2019 and February 2020. This demonstrates a reasonable exercise of discretion on the landlord’s part in its attempts to achieve a resolution for the resident.
However, after arranging for remedial works to start on 26 March 2020, the landlord’s contactors turned up unexpectedly on 25 March 2020, and noted more time was required due to the extent of the works. Following this, contractors attended on 14 September 2020 and collated a further list of works that excluded works confirmed on 11 November 2019 and 5 February 2020. On 17 September 2020, contractors attended to carry out works resulting in no access, which the landlord has supplied no evidence of arrangement with the resident for. On 12 November 2020, the contractors broadened the scope of works to include the works confirmed on 11 November 2019, but not 5 February 2020.
This Service recognises the challenges the landlord has had in completing the works due to access issues and Covid-19, and that some factors were out of its control. However, as the extent of the works were known and a given reason for delay in progressing them in February 2020, the above evidences mismanagement of the works as well as lack of communication with the resident. In the meantime the resident and her son have remained in a property for some time awaiting works to rectify water damage and mould growth. This is not appropriate.
In addition, in its consideration of enforcement action, the landlord explained:
1. “The terms of the lease are that the council must allow leaseholders 30 days from notification to investigate and repair the item. Therefore, we had to allow 30 days for leaseholders to complete this. If we had not had a response after 30 days, only then could we force entry.”

“The circumstances for us doing this would have to be extreme and would only be subject to us gaining a Court Order as a very last resort.”

The Ombudsman cannot decide whether a landlord should take, or should have taken, enforcement action. However, we can assess the information it provided to the resident and whether it appropriately considered all options available. Paragraph 3(6) of the lease, of the property affecting the resident’s, allows the landlord to enter with three days’ notice, or without notice in cases of emergency. Accordingly, the landlord’s statements about timeframes the lease requires were not accurate, and it has not sufficiently evidenced it was aware of and considered its access rights in the lease.This was not appropriate.
Whilst it is recognised it will have been distressing to experience repeated problems with water ingress, it is not uncommon for such issues to require repeat inspections and various attempts at identifying and addressing the problem before a fully effective solution is found. Overall, the landlord provided adequate explanation and apology for the delays in dealing with the leaks.
The Ombudsman is not aware of the landlord having its own internal compensation policy, however in its Remedies Guidance the Housing Ombudsman Service sets out three compensation ranges. The total £325 offered by the landlord in its responses falls within the second highest range, where amounts in the range may be for cases where there has been considerable service failure or maladministration. Accordingly, the £325 compensation offered by the landlord at the time of the final response was in accordance with the Service’s Remedies Guidance, and so was suitable financial redress at that stage.
However, the offer does not adequately reflect the extent of the unacknowledged service failings in this case, particularly in relation to its handling of the subsequent remedial works, which caused unnecessary uncertainty, distress and inconvenience and which requires further redress to put right.

The landlord’s complaints handling and communication

The Ombudsman’s Dispute Resolution Principles are:
1. Be fair – treat people fairly and follow fair processes
2. Put things right
3. Learn from outcomes
The landlord’s Stage 1 response to the repairs complaint was issued on 11 November 2019, 10 working days after the complaint was made on 28 October 2019. This was in accordance with the landlord’s complaint procedure and provided explanation about what leaks had been resolved. It reasonably referred to recommendations for contents insurance to be held, however it offered £75 for damage to the resident’s son’s books and confirmed remedial works raised. This demonstrates it was sympathetic to the resident’s circumstances and took steps to put things right by offering discretionary compensation and raising works. However, it did not address the fan the resident raised or provide sufficiently clear detail about when works might be done.
The landlord’s final response to the complaint was issued on 14 January 2020, 6 working days later than the stated 20 working day timescale. While not excessive, it is good practice to acknowledge any delay and provide apology and explanation. However, the landlord recognised remedy of the ingress became protracted, stated it was reviewing the case with contractors, and offered £250 in recognition of the delays. This demonstrates the landlord acknowledged the impact the issue had on the resident and her son, and was looking to put things right and learn lessons from the case.
However, the response did not refer to the works identified in the Stage 1 response and update on the status of these. As the repairs were still outstanding, it would have been appropriate for the landlord to clearly outline the next steps it had planned to address the leak and monitor the repairs, to help manage the resident’s expectations and reassure her these would be progressed at an appropriate time, such as after drying out of the property. This Service’s guidance to landlords for responding to complaints recommends landlords give details and timescales for any actions they plan to take.
Following its final response, the correspondence provided demonstrates the landlord continued to monitor the progress of the repairs including during Covid-19. However, while correspondence shows it kept a councillor updated about the repairs, there is no evidence it provided written updates to the resident, responded to further queries about when damage would be rectified, or provided a timescale as it said it would on 31 January 2020.
The resident should not have had to contact councillors, MPs and this Service to receive updates on the situation. As explained in the Service’s new Complaint Handling Code, landlords should keep residents regularly updated and informed even where there is no new information to provide, in line with the Dispute Resolution Principal to ‘Put It Right’ and effectively handle a complaint to prevent unnecessary escalation.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme:
1. There was a service failure by the landlord in its response to reports about leaks and remedial works.
2. There was a service failure by the landlord in its complaint handling and communication.

Reasons

While the landlord initially responded appropriately to the resident’s reports about leaks at the property, it did not communicate about or complete outstanding remedial works in an effective or reasonable way.
The landlord’s responses lacked sufficient detail about actions it intended to take to repair the leak and carry out remedial works, and what timescales these involved.
The compensation offered was not proportionate to the extent of unacknowledged service failures and the distress and inconvenience caused to the resident in this case.

Orders and recommendations

Orders

The landlord to pay the resident compensation of £625. This comprises:
1. £325, comprising the £75 offered in its Stage 1 response and £250 offered in its final response.
2. £200 in light of any distress and inconvenience as a result of its highlighted communication failures and delays in completing the agreed works following its final response.
3. £100 in light of any distress or inconvenience as a result of its complaints handling failures.
This is to be reduced if any of the landlord’s original offers have already been paid.
The landlord to:
1. Write to the resident within the next six weeks to apologise and to confirm the works it intends to carry out with their completion timeframe. This should include all previous works it identified

The landlord should contact this Service within six weeks of the date of this decision to confirm that it has complied with the above orders.

Recommendations

The landlord to:
1. Review its staff training needs to ensure in future it considers the access rights within individual leases.
2. Review its complaint handling to try to prevent a recurrence of the service failures identified.