Tower Hamlets Homes (202121277)

REPORT

COMPLAINT 202121277

Tower Hamlets Homes

27 February 2023 (amended at review)

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:
   1. Reports of damp and mould in the property.
   2. The related complaint.

Background

2. The resident has been a leaseholder of the property of the landlord since October 2018. The duties of the landlord are carried out by an arm’s length management company. The property is a ground floor flat with a communal garden area immediately outside the property.
3. In December 2020 the resident had discovered damp patches on the walls of his property and that the floorboards had warped against the wall adjacent to the communal garden, which he believed was due to plant roots. He asked the landlord to send a surveyor to assess the damage. The landlord found no outside cause but blamed condensation, and the insurers said that the Japanese knotweed was not covered by insurance.
4. The resident commissioned his own surveyor in January 2021 who diagnosed penetrative damp caused by external defects and recommended the landlord check for leaks around guttering and rainwater systems and treat and remove the vegetation, later found to be buddleia, not Japanese knotweed. The landlord rejected the findings. Following an earlier Ombudsman investigation on the same issue, the landlord was ordered to reconsider the independent surveyor’s report and a second insurers report which was then due. The landlord carried out external repairs to the guttering and pathways and wrote to the resident to confirm that there had been a blocked drain and saturated brickwork.
5. The resident complained in September 2021 that this new evidence gave the landlord liability for internal damage. The complaint response said that it did not feel the repairs inspectors had failed to correctly diagnose the root cause of the issues when the property was inspected as they might not have been apparent at that time. The resident’s stage two complaint was initially withdrawn as it was an issue for its insurance company. This claim was subsequently settled in January 2022. The complaint about the landlord’s delay in diagnosing the repairs was reopened and responded to on 21 February 2022 when the landlord partly upheld the complaint, offered £120 compensation and apologised for the errors made.
6. The resident feels that the landlord repairing all the external defects (and that the work was successful in resolving the issue) shows that it did not deal with the repair correctly in the first instance. He is unhappy with the compensation, given the £720 cost of an independent surveyor he incurred, as well as the stress and inconvenience caused.

Assessment and findings

Scope of investigation

7. The previous Ombudsman investigation into the same repair found service failure in relation to the landlord’s responses to the resident’s concerns about damage to his walls and floors. In its report, the Ombudsman ordered the landlord to 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. It also ordered the landlord to reiterate its request for a copy of the insurer’s loss adjustor’s report and to update the resident about its position following a review of this report.
8. In January 2022, six months after the Ombudsman investigation asked the landlord to consider further evidence, the resident accepted £8,584 in full and final settlement of the incident from December 2020 when damage was sustained as a result of a water leak. Therefore, this investigation has considered whether there was service failure in the landlord’s response to the complaint that responsibility for the repair should have been accepted in January 2021, when the repair was first inspected, given the subsequent insurance settlement. It does not consider the qualifications of the staff who inspected the property, or the content of the complaint responses up to June 2021, as these issues were covered in the first investigation.

Assessment

Repairs

9. The lease at section 5 (5) (a) covers the landlord’s responsibility for maintaining and keeping in good and substantial repair the structure of the building including external walls and the foundations, drains, gutters and rainwater pipes.
10. The landlord’s responsive repairs policy says at section 5.3.1 that the landlord will ‘‘undertake repairs to leaseholders’ properties where there is a contractual or other legal obligation’ and that the landlord is responsible for maintaining the structure, common parts, and supply of services to each flat. Section 6.5.1 says 20-day repairs include minor leaks and blocked drains and pipes and repairs to outside walls and repairing and clearing guttering and down pipes. At section 7.3 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.
11. In this case, the cause of the reported damage was denied by the landlord from its initial inspection on 19 January 2021 until its detailed letter dated 27 July 2021 which said that the damp proof course appeared to have been breached due to a combination of blocked gully/drain and a full water butt leaving rainwater with no where to go. The letter said that this caused the brickwork to become saturated and rainwater had penetrated through the wall and damaged the solid wood flooring.
12. The initial complaint response letter in September 2021 said some blockages are only evident in very heavy rain, and that efflorescent staining can take up to 12 months to appear. The landlord said that given this, it did not believe that its inspectors had failed to diagnose the root cause of the issue when the property was inspected. However, the independent report undertaken eight months earlier had reported efflorescent salts behind pipes and included photographs to support this.
13. It was reasonable to for the landlord to direct the resident to its insurer. By the time the final response was issued on 21 February 2022, the insurer had paid out £8,594 in full and final settlement of the claim respect of the leak at the property in December 2020. The final response said that there would be occasions when errors were made or more than one underlying issue contributed to a problem. The landlord offered its apologies for any additional delay or confusion caused by this and offered. Therefore, it is not disputed that the landlord accepted that the cause of the damp was misdiagnosed initially.
14. In relation to the failures identified, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes as well as our own guidance on remedies.
15. The compensation of £120 offered in respect of stress and inconvenience suffered by the resident having to chase to get the matter resolved was not proportionate to the impact on him. Although responsibility for misdiagnosing the cause of the defects was not accepted initially, it is noted that the first report of the repair was in January 2021 and the external repairs were complete in July 2021. The inconvenience caused by the external damage was over a six-month period and the Ombudsman’s remedies guidance allows for sums of between £100 to £600 in cases where there is no permanent damage but there was a failure which adversely affected the resident. In this case, a sum of £300 would better reflect the detriment to the resident in particular the inconvenience and distress to him in pursuing the matter to a satisfactory conclusion including two referrals to this Service.
16. Turning to the independent survey that the resident had commissioned in February 2021. Given that other inspections by the landlord had findings to the contrary, it was not unreasonable for the resident to have done this, as he felt that the cause of the damage was not condensation. The resident has advised that once the external repairs were competed, the damp issues were resolved. The cost of the surveyor was therefore reasonably incurred and should be compensated for by the landlord (upon a receipt for the same, providing this cost was not included in the insurance claim).

Complaint handling

17. The Code says that, if a landlord decides not to accept a complaint, a detailed explanation must be provided, and the resident advised of their right to take that decision to the Ombudsman.
18. The landlord’s online complaint process says that it aims to provide a full response to stage one and two complaints within 20 working days. The complaints policy, also available online, says that matters related to claims on building or public liability insurance should be directed to the landlord’s insurance team.
19. In the landlord’s notes of the phone call with the resident on 24 September 2021, the resident said he wanted the landlord to investigate why its insurer would not pay out when all the works were outside the property. This led to the landlord withdrawing the complaint as advised in its email of 28 October 2021, on the grounds that it could not investigate insurance matters. That was not unreasonable; however, the landlord did not give the resident the right to escalate this decision to the Ombudsman, as it should have done. Although the Code talks about appeal rights being given when a landlord is not accepting a complaint, it would be reasonable to include in this that that the landlord should also give the appropriate Ombudsman rights when withdrawing a complaint. This was a service failure.
20. The landlord acted reasonably in reopening the complaint when it established the subject of the complaint was different from the claim, and its final response was in line with its timescales set out in its complaint process.
21. Financial compensation of £100 is therefore awarded for the identified failures.

Determination

22. In accordance with paragraph 52 of the Scheme there was maladministration in respect of the landlord’s handling of:
    1. Reports of damp and mould in the property.
23. In accordance with paragraph 52 of the Scheme there was service failure in respect of the landlord’s handling of:
    1. The related complaint.

Orders

24. Within four weeks of the date of this determination, the landlord should provide the Ombudsman with evidence it has:
    1. Paid the resident £300 in respect of its response to the repairs, to include the £120 previously offered, if this has not been paid already.
    2. Paid the resident the cost of the independent surveyor’s report dated 22 January 2021 (or within four weeks of being provided with a receipt if it does not have this already, and if not included in the insurance settlement dated 28 January 2022).
    3. Paid the resident £100 in respect of the complaint handling.