Tower Hamlets Council (202016524)

REPORT

COMPLAINT 202016524

Tower Hamlets Homes

1 July 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

1. The complaint is about the landlord’s response to the resident’s reports about damage to his walls and floors.

Background and summary of events

Background

2. The resident has been a leaseholder of the property of the landlord since 29 October 2018. The duties of the landlord are carried out by an arm’s length management company for the local authority.
3. The lease notes that the resident is responsible for the floor of the property, and the landlord is responsible for maintaining the external walls, recoverable through the service charge.
4. The property is a ground floor flat. Immediately next to the property is a communal garden area.
5. The building is covered by a building insurance policy.
6. The landlord operates a two stage complaints procedure.
7. The landlord operates a responsive repairs policy. The policy notes that following a report from a resident, it will initially investigate to determine whether the issue is the responsibility of the resident or the landlord.

Summary of events

8. It is not disputed that in or prior to December 2020, the resident discovered damp patches on the walls of his property and that his floorboards had warped up against the wall adjacent to the communal garden at the building. The resident has advised this service he considered the cause of the issues to have been water ingress from the external wall. He has also advised this service that a plant was growing underneath the wall and has provided photographic evidence depicting a plant growing in a crack where an external wall meets a path. It is not disputed that the resident made a claim with the building insurer, who subsequently sent its loss adjuster to assess the damage. The resident has advised that the loss adjuster’s report indicated that the plant was ‘Japanese Knotweed’, and that the insurance policy did not cover this. This service has not been provided with a copy of this report and it is not evident the report has been provided to the landlord.
9. The resident made a formal complaint to the landlord on 4 February 2021. He advised that on 21 December 2020 he had requested a surveyor to assess the damage to his property and advised the landlord he considered the damage to have been caused by plant roots. He noted that the landlord’s ‘Repair Inspector’ attended his property on 19 January 2021. The resident advised that the insurer had suggested to him that the landlord should arrange for its ‘surveyor’ to assess the damage and provide him with a report. The resident expressed his dissatisfaction that the landlord had sent its Repair Inspector and not a surveyor, and also advised the Repair Inspector was unwilling to provide him with a report. It is not evident, however, that the resident explained the need for a surveyor to attend when booking the inspection. He further noted that the Repair Inspector had concluded that the damage was caused by condensation, which he disputed.
10. The landlord has provided this service with some of its internal communications made during its stage one investigation. On 10 February 2021, the landlord enquired with its surveyor regarding the investigation, and on the same date, the landlord’s surveyor advised that “I agreed with [the Repair Inspector’s] opinion and observations, as I liaised with him at the time.”
11. The landlord provided its stage one response on 17 February 2021. It advised that both its Repair Inspector and surveyor agreed that “the wet patches above the skirting boards and the mould to the reveals is due to the condensation build up,” and that “the issues with the flooring are likely related to the subsequent damp and moisture affecting the underlay or finished flooring itself.” It disputed that the plant growing against the external wall was Japanese Knotweed, instead believing it to be ‘Buddleia’, and advised that “the buddleia plant in the garden has no bearing to the bowed and the lifting of the floor.” It concluded that there was no repair responsibility for the landlord and that it was “an internal issue which is the responsibility of the Leaseholder.”
12. On the same date, the resident disputed that the Repair Inspector was qualified to make a finding that the issues were caused by condensation, and on 18 February 2021, he requested an escalation of his complaint.
13. It is evident that on or around 19 February 2021, the resident arranged for an independent surveyor’s report, which he subsequently provided to the landlord on 23 February 2021. The report noted that there was “vegetative growth holding between the lower elevation and floor joint. Water can migrate into the property and all DPC membranes must be examined.” It recommended that the vegetation and roots be removed, and the gaps be filled. The report also noted that there were defects with the property’s “rain goods” and that “the dampness occurring internally is being caused by the external defects noted above.” The report further noted, however, that condensation was also contributing to the dampness within the property.
14. It is also evident that the landlord arranged for a condensation survey to be carried out on or around 3 March 2021. The report noted that “the floor is raised through the middle of the living room / bedroom this isn’t caused by condensation.” The report went on to note that the property suffered from poor ventilation and made recommendations to install a new extractor fan. It is not evident the report identified the cause of the floor issues. The landlord’s internal communications provided to this service noted that this report was sent to the insurer on 17 March 2021.
15. The landlord provided its stage two response on 19 March 2021. The landlord noted the resident’s concerns that its Repair Inspector was not qualified to assess the damage but reiterated that “both [the Repair Inspector] and [the landlord’s surveyor] agreed that the plant in the garden has no bearing to the lifting of your floor, which is likely to be related to the subsequent damp and moisture affecting the underlay or the finished flooring itself.” It advised that the Repair Inspector’s visit was overseen by its surveyor and that the surveyor had “reviewed the photographic evidence from the inspection and agreed the findings as a surveyor.” It concluded that its operatives had therefore followed its “correct process.” It further advised it would review the condensation survey report, following which “you will be contacted with the outcome.” Regarding the independent surveyor’s report commissioned by the resident, it advised it would not be reviewing the report as it was a matter for the insurer to investigate, which it would be unable to comment on further. It noted this was now the end of its internal complaints procedure and that the resident could take the complaint to this service if he remained dissatisfied.
16. On 7 May 2021, following receipt of the most recent reports, the insurer advised the resident it would not be paying out his claim, as damage caused by Japanese Knotweed was not covered by the policy. On the same date, the resident requested that his complaint be reviewed and advised he “doesn’t agree with the landlord’s findings that the damp and mould is due to condensation.” It is not evident the landlord replied to this request.
17. It is evident that the resident subsequently raised a new complaint regarding the same issues on 28 May 2021, which the landlord acknowledged on 1 June 2021. On the same date, the landlord’s surveyor contacted the resident to discuss the resident’s independent surveyor’s report. The surveyor noted the report did not mention that the external plant was Japanese Knotweed, and advised he considered it be Buddleia. The surveyor advised that the landlord had now cut back the Buddleia, and that no external defects caused by the plant were noted, nor were they noted by the Repair Inspector during his inspection, nor by the surveyor when assessing the Repair Inspector’s photographs. The surveyor noted that the report recommended that the “DPC membranes” should be investigated but disputed this was necessary as there was “no symptoms/evidence of rising or penetrative damp.” The surveyor concluded that “there is no significant evidence of an internal water ingress … via a plant species root system,” but that “there is significant evidence of condensation.” He further advised that he considered the issues with the floorboards to be caused by expanding condensation moisture underneath.
18. It is evident that the landlord subsequently arranged for a specialist contractor to treat the external plant on 8 June 2021. On 9 June 2021, the resident requested a report from the specialist contractor, however, on 10 June 2021, the specialist contractor advised its report would be provided directly to the landlord.
19. On 11 June 2021, the landlord provided a further formal response. It noted it had previously responded to this complaint and reiterated the steps its Repair Inspector and Surveyor had taken and that it had concluded the landlord did not have any repair responsibility and that its staff had not been “negligent or incompetent.” It noted that the resident had referred to a report made by the insurer’s loss adjustor. It subsequently requested a copy of this report and advised that it would “re-assess as appropriate on receipt.”
20. The resident expressed his continued dissatisfaction at the landlord’s position on 14 June 2021. On 17 June 2021, the landlord advised that its Repair Inspector and surveyor “both agree that the buddleia plant in the garden has nothing to do with the bowed and the lifting of your floor,” and that it was “not linked even remotely to the damp issues.” The resident has informed this service he arranged for repair works to his wall and floorboards, which have now been completed, but he remains concerned that the plant roots have not been dealt with and the issue will return. The resident has also advised that he continues to have discussions with the landlord regarding further works to the external garden area.

Assessment and findings

21. The landlord’s repair policy does not note that a surveyor must carry out an investigation into reports of repair issues. Following a report of a repair issue, the Ombudsman expects a landlord to carry out a reasonable investigation to determine if it has any repair responsibility.
22. Based on the evidence provided to this service, it is not evident that the resident reported the issues he was experiencing prior to making his claim with the building insurer. Following his request on 21 December 2020 that the landlord send a surveyor to assess the issues, the landlord sent a Repair Investigator to investigate on 19 January 2021. While it was reasonable for the Repair Investigator to give his opinion that the issues were being caused by condensation, given that his investigation was to be reviewed by the landlord’s surveyor, it would have been helpful had the landlord explained this to the resident and given a timeframe for it to provide the surveyor’s assessment, which it is not evident it did. This would have left the resident concerned at the reliability of the investigation.
23. Following his formal complaint, the landlord appropriately investigated the issue by making enquiries with its surveyor. It also appropriately advised the resident in its stage one response of the Repair Inspector’s findings and that its surveyor agreed with those findings. Given that it is not evident that the landlord had a copy of the insurer’s loss adjuster’s report, it was reasonable that it did not comment on the findings made therein. It was also appropriate that it set out its position on whose responsibilities the repairs were. While the resident has expressed his concern that the Repair Inspector was not qualified to make a decision, it is evident the decision was reviewed and concurred with by the landlord’s surveyor, and in the Ombudsman’s opinion, the landlord’s investigation into the issue was reasonable.
24. Given that the resident continued to query the investigation of the Repair Inspector, it was appropriate that the landlord provided greater clarification in its stage two response around the process in which its surveyor had overseen the Repair Inspector’s investigation. Additionally, given that the resident continued to express his concerns and that he provided the landlord with an independent surveyor’s report into the issue which noted “vegetative growth” and that this could cause water ingress, it was appropriate that the landlord arranged for its own condensation survey. It was evident, however, that the landlord had received this report at the time of its stage two response and so while it was reasonable that it advised it would contact the resident following its review of this report, it would have been helpful had it provided a timeframe, which it did not do in this instance. This would have left the resident uncertain about how his complaint would be dealt with.
25. Given that the landlord had not commissioned the resident’s independent surveyor report and would be reviewing its own report, it was reasonable that it advised the resident it would not be commenting on his report. Additionally, while the landlord’s stage two response appropriately noted it represented the final stage of its internal complaints procedure, it would have been helpful had it reiterated this to the resident following his request for an escalation on 7 May 2021, which it is not evident it did.
26. Despite having previously advised that the landlord would not be commenting on the resident’s independent surveyor’s report, given that the resident had made a further complaint, it was appropriate that its surveyor gave an assessment and advised the further actions it had taken, the observations it had made, and that it did not consider the report or its further observations to indicate that the external plant was the cause of the issue. It is not evident, however, that the landlord at any point gave a further update on its own condensation survey report, despite having said it would do so in its stage two response and having the opportunity to do so in its further formal response in June 2021. Given that this report noted that “the floor is raised through the middle of the living room / bedroom this isn’t caused by condensation,” which was contrary to the landlord’s surveyor’s initial findings, it would have been appropriate for the landlord to have given its position on this finding, which it did not do. This would have caused distress to the resident.
27. Given that it was not disputed that there was a plant growing against the wall, it was appropriate that the landlord arranged for a specialist contractor to remove it. It is not evident that the landlord requested that the specialist contractor provide a report, and so while the contractor advised the resident it would provide a report to the landlord, it was reasonable that it did not comment on any report. It was also appropriate that given the resident’s continued concerns, it provided a further formal response, beyond what was required by its internal complaints procedure, and that it noted there had been an initial report by the insurer’s loss adjuster, which it appropriately requested and advised it would consider.
28. While the landlord’s initial investigation of the resident’s report was reasonable, it is evident it had not explained that its surveyor had oversight of the investigation until its stage one response. It is also not evident that it provided its position following a review of its condensation survey report, the findings of which contradicted its own investigation. This failure to provide updates to the resident would have caused him distress and inconvenience in having to chase up the landlord’s position, which it is still not evident it has given. In the Ombudsman’s opinion, this represents a service failure by the landlord, and it is appropriate that an amount of compensation be offered. In the Ombudsman’s opinion, an amount of £50 is reasonable in the circumstances.

Determination (decision)

29. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of the complaint regarding its response to the resident’s reports about damage to his walls and floors.

Reasons

30. While it was reasonable that the landlord investigated the resident’s initial reports by allowing its surveyor to oversee an investigation carried out by its Repair Inspector, it was not evident this was explained to the resident, causing him distress that the investigation had not been carried out correctly.
31. While the landlord appropriately explained how it had carried out its investigation in its formal responses, and that it also appropriately arranged for a further condensation survey report, it is not evident that it outlined its position regarding this report, despite promising to do so. Given this report contradicted its own investigation, this failure to provide an update would also have caused distress to the resident. This constituted service failure and it is appropriate that an amount of compensation be offered.

Orders and recommendations

Orders

32. The Ombudsman orders the landlord to pay compensation of £50 for any distress and inconvenience caused to the resident by its failure to explain how it had reached its conclusions following its initial investigation, and its failure to provide its promised update following a review of its condensation survey report.
33. This amount must be paid within four weeks of the date of this determination.
34. The landlord to write to the resident within four weeks of the date of this determination and include the following (if it hasn’t already done so):
    1. update the resident as to its position following its review of its condensation survey report and in particular the comments made therein regarding the floorboards;
    2. reiterate its request for a copy of the insurer’s loss adjustor’s report and advice that it will update the resident about its position following a review of this report.
35. The landlord to provide a copy of the abovementioned correspondence to this service within four weeks of the date of this determination.