Waltham Forest Council (202000574)

REPORT

COMPLAINT 202000574

Waltham Forest Council

22 March 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 concerns the landlord’s handling of the resident’s reports of water leaks from the properties above hers.

Background and summary of events

2. The resident is a tenant of the landlord.
3. The resident lives in a building which has multiple stories.
4. The leaks in the resident’s properties have been identified as coming from two separate properties above her own. For ease of reference, throughout this investigation one of the properties will be referred to as property A and the other as property B.
5. The neighbours who live in property A and B are also tenants of the landlord.
6. The resident raised a formal complaint with the landlord concerning its handling of her reports of a leak on 19 October 2018 and a stage one complaint response was issued on 13 December 2018. This leak was discovered to be from property A. In its complaint response, the landlord explained that it had been unable to access property A on three occasions to inspect the source of the leak. It said that it had “sought legal action” to access property A and had been proactive in handling the matter so would not uphold her complaint. It explained how the resident could escalate her complaint if she was not satisfied with this response. 
7. The resident then raised another complaint on 17 October 2019 as there had been further leaks into her property. She received a stage one complaint response on 14 November 2019. In its response, the landlord explained that the leak had come from property B due to issues with the bath and tiles in the bathroom. It explained that it had organised repair work to resolve this issue. It also said that it would “stain block and redecorate walls/ceilings affected by leak” in the resident’s property. It explained how the resident could escalate her complaint if she was not satisfied with this response. 
8. On 24 March 2020, the resident reported another leak in her property. According to the landlord, this was treated as an emergency repair.
9. On 25 March 2020 the landlord’s contractors attempted to access properties A and B in order to identify the source of the leak but were unable access to either.
10. On 1 April 2020 the contractors were unable to access property B.
11. According to the resident there was a leak into her property on 11, 12, and 13 April 2020 which damaged her belongings.
12. On 14 April 2020 contractors inspected property B after an emergency repair had been reported the day before by the resident. They could not discover any leak. They concluded that the leak must have come from property A instead but could not gain access.
13. According to the landlord’s internal correspondence from 14 April 2020, it had attempted to contact the tenant of property A via two telephone numbers and email but had been unsuccessful.
14. On 16 April 2020 the landlord gave the tenant of property A notice that it would force entry to the property the following day.
15. On 17 April 2020 the landlord forced entry into property A. It discovered the cause of the leak and repaired it the same day.
16. On 20 April 2020 the resident raised a formal complaint to her landlord. She said that the landlord had not made her home “a safe and decent place to live”. She said that even though the landlord’s last correspondence in November 2019 said that the leak had been resolved, she reported another leak on 24 March 2020. She also said that she had further leaks on 28 March, 1 April, 11 April, 12 April, and 13 April. She said that these leaks caused damage to her property and her belongings and she asked to be compensated for this. According to the resident, when she contacted the landlord to advise it of the leaks, it had informed her that it could not gain access to the above properties in order to investigate the source of the leak.
17. The resident asked to be rehoused as she and her child had been “exposed to several potential hazards and health risk[s]”. She said that she did not feel safe in her property. She said that even though the landlord had advised her in November 2019 that it would carry out work to the areas of her flat that were affected by the leak, no work had been done. 
18. On 27 April 2020 the landlord issued its stage one complaint response. It explained the steps it had taken in response to the resident’s report of a leak on 24 March 2020. It advised the resident to make a claim on her contents insurance for her damaged belongings. It said that if there had been any damage to her ceiling or walls because of the leak, it would repair this once COVID-19 restrictions had been lifted.  It referred her to contact her housing officer concerning her request to move property.
19. The landlord advised the resident that she could escalate the complaint to stage two of the complaints process if she was not satisfied with this outcome.
20. On 28 April 2020 the resident reported a further leak to her landlord. According to the resident’s correspondence with this Service, a contractor attended her property the same day but was unable to access property A. She also said that she “waited almost seven to eight hours for the leak to stop on its own”.
21. On 23 June 2020 this Service contacted the landlord in order to ask it to clarify to the resident the status of her complaint.
22. On 6 July 2020 the landlord contacted the resident. It reiterated what it had said in its stage one response regarding her damaged belongings and said that claims for damaged property were outside the remit of its complaint procedure. It acknowledged her request to move properties and said that this request was also not something it could address through the complaint procedure. It also asked the resident to provide it with any supporting documents to demonstrate that how much money she had spent redecorating her property. This is so that it could investigate when it could recompense her for this expenditure.
23. On 29 July 2020 the landlord issued its stage two complaint response. It advised the resident to make an insurance claim for her damaged belongings as this issue fell outside the remit of its complaint procedure. It said that the damage caused by the leak in the resident’s property would be “made good”, once COVID-19 restrictions were lifted. It explained that the resident would be unable to move properties as this would only “be undertaken in case of a major repair situation”.
24. The landlord concluded by explaining how the resident could approach this Service if she remained dissatisfied.
25. It attached an investigation report to its stage two response which explained the “details of [its] investigation and findings”. The landlord said that it is “always immediately obvious” which property is causing a leak. It explained that if there is an emergency repair and it cannot access the required property after having tried to make contact, it may use forced entry, but this is a “last resort”. It also said that due to the COVID-19 restrictions “many processes took longer than they would under normal conditions”. It said that after it had gained access to property A on 17 April 2020 it had discovered that the leak occurred whenever property A used their shower.

Assessment and findings

Scope of investigation

26. In the resident’s complaints she has referred to how the condition of her property, (specifically the coldness as a result of the leaks), could have potentially worsened her child’s medical conditions. The Ombudsman does not doubt the resident’s comments regarding her family’s health. However, in accordance with paragraph 39 (j) of the Housing Ombudsman Scheme, we cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be more usually dealt with as a personal injury claim through the courts. The Ombudsman cannot consider the effect of the leaks on health, but we have taken into account the distress and inconvenience the resident and her family experienced as a result of the situation.
27. Also, in the resident’s correspondence with this Service, she has explained that there had been a further leak in her property on 5 December 2020. However, in accordance with paragraph 39 (a) of the Housing Ombudsman Scheme, we cannot investigate complaints which “are made prior to having exhausted a member’s complaints procedure”. The landlord needs to be provided with the opportunity to investigate and respond to this aspect before we can adjudicate on it.

The landlord’s handling of the leak

28. According to the tenancy agreement, the landlord is required to carry out repairs to the structure and exterior of the resident’s property which includes drains, gutters, and external pipes. It must also “keep in repair and proper working order” pipes and other installations which provide the resident with water. Therefore, in accordance with the tenancy agreement, the landlord would be expected to respond and act on the resident’s reports of leaks coming from above her property. Furthermore, in accordance with the landlord’s repairs policy an emergency repair is to be responded to within 24 hours to the next working day. An emergency repair could be any “faults or disrepairs that constitute a safety hazard” or “sudden or unexpected disrepairs…likely to result in costly damage”. Tenants are also required to give access for any work to be carried out. However, on occasions where access is denied for an emergency repair, the landlord may gain access through forced entry.
29. In order for the landlord to repair a leak, it would first of all need to investigate what the source was. However, in this circumstance the contractors failed to immediately gain access to either property A or B. Following the resident’s reports of leak on 24 March 2020 and 13 April 2020, the repairs were escalated to an emergency. On both occasions the contractors attended the property within the timeframe of 24 hours as stipulated in the repairs policy but were unable to immediately resolve the issue. On 25 March 2020 they could not gain access to property A or B. Then on 14 April 2020 when the contractors gained access to property B, they identified that the leak was coming from property A.
30. From the evidence provided for this investigation, it is apparent that the landlord made reasonable effort to contact the resident of property A in order to gain access. It then used forced entry as a last resort given that it was unable to arrange an appointment with the neighbour. The landlord would be expected to attempt to make contact with any resident before forcing entry as it would be unreasonable to do so without giving any notice whatsoever. In its stage two complaint response, the landlord gave a thorough explanation to the resident of the difficulties it had faced trying to access property A and B which had consequently delayed the repair work necessary to resolve the leak. Ultimately, the delay in resolving the leak that was reported on 24 March 2020 was not a direct result of the landlord’s inaction, but rather, due to the limitations it faced with accessing the relevant properties. Once it gained access to property A on 17 April 2020 the landlord took immediate action by identifying and repairing the issue.
31. It is understandable that the resident was frustrated with the “ongoing leaks” in her property. However, from the evidence provided for this investigation it is not certain that there had be one overall leak from the same source on each occasion. For example, the leak in 2018 came from property A, whereas the leak in 2019 was from property B. The landlord itself explained in its complaint responses that each leak had a different source. It had not been presented with any evidence to indicate that there had been one problem causing these continuous leaks which it had failed to resolve. Instead, the landlord had faced problems and delays when addressing these earlier reports of leaks as well. In 2018 the landlord made three attempts to contact the tenant of property A in order to investigate the problem. Then in 2019, the landlord did not initially identify property B as being the source of the leak so there was a subsequent delay in resolving that issue. However, in each instance regardless of the obstacle it had faced, the landlord gave reasonable explanations to the resident as to why the problems had not been instantly resolved. It also took appropriate action to fix each leak once it was able to.
32. It is not always possible to identify the cause of a leak immediately and in some cases it can take time to identify the cause. The landlord was entitled to rely on the opinions of its qualified staff and contractors concerning the cause of the leak on each occasion and the repairs needed to correct the problem. The Ombudsman has not seen evidence of any avoidable delays in 2018, 2019 or 2020 caused by the landlord failing to take appropriate action to find the source of the leaks or to carry out repairs.
33. It is plausible that the resident was dissatisfied that her belongings had been damaged as the leak had not been caused by any damage or action on her behalf. However, the landlord advised her to make a claim on her contents insurance as it was not a matter that it could consider in its complaint procedure. According to the landlord’s repairs policy, if the resident’s belongings have been damaged by something which was not the landlord’s fault, the resident should claim on their contents insurance. The landlord was not responsible for causing the leak and took reasonable action to stop the leak, although there were unavoidable delays in achieving this. Therefore, the landlord’s response was appropriate and in accordance with its complaints policy. It managed the resident’s expectations and offered her advice as to how she could obtain the outcome that she was seeking.
34. The resident also mentioned that the landlord had not carried out the decorative work that it had said it would in its complaint response from November 2019.  Despite its initial omission and failure to act, its decision to carry out any relevant decorative and repair work was an appropriate response from the landlord. It recognised that it had initially been unfair to the resident by failing to do as it said it would. According to the landlord’s repair policy, it is responsible for carrying out any repair work for any damage caused by “roof leaks, or any other defects in the external envelope allowing water ingress”. Therefore, the landlord’s decision to repair damage and redecorate the resident’s wall and ceiling was in line with its obligations. Although residents are generally responsible for the decoration of their property, in this situation it was reasonable for the landlord to carry out redecoration of areas damaged by the leak, in line with its responsibilities for repairs.
35. It also acknowledged the resident’s request to move to a new property and it initially advised her to contact her housing officer in order to discuss the possibility. Then, in its stage two complaint response it said that after having made enquiries, it had found out that the resident would not qualify for moving. Even though this was not the response that the resident wanted, the landlord demonstrated that it had took steps to investigate her request and obtained an answer on her behalf.
36. Ultimately, the landlord had been unable to access property A and B and was therefore limited with what reasonable action it could have taken to investigate and resolve the leak. Nevertheless, it responded to the resident’s reports in a reasonable time and took steps to contact both properties to gain access. After exhausting its options, it used forced entry as a last resort and immediately resolved the issue. Although the resident was dissatisfied that the leak continued after she had reported it, no evidence has been provided for this investigation to indicate that the landlord could have taken any further action to access property A and B and resolve the issue any quicker than it did. This in no way undermines the obvious inconvenience for the resident, but, in the circumstances of this complaint, the landlord actions, and its response to the resident, were reasonable.

Determination (decision)

37. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord’s handling of the resident’s reports of a water leaks into her property.

Reasons

38. The landlord acted upon the resident’s reports of leaks between 2018 and 2020 but was restricted with what action it could have taken given that it could not access properties A or B when necessary to find the source of the leak and carry out repairs. Although it could not instantly investigate the source of the leaks, once it had access to the properties it was able to resolve the issue on each occasion. Although this has not prevented the resident from experiencing further leaks, there is no evidence that any errors by the landlord have caused this situation to develop.

Recommendations

39. It is recommended that the landlord ensures that it has completed the promised decorative works to the resident’s property as it failed to do so following its stage one complaint response in 2019.
40. It is also recommended that the landlord completes a survey of the building in order to determine whether there is a reason why the resident’s property is susceptible to leaks. The landlord should share the findings of this survey with the resident.