Waverley Borough Council (202013619)

REPORT

COMPLAINT 202013619

Waverley Borough Council

30 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

The complaint is about the landlord’s response to the resident’s:
1. reports of a leak and subsequent repair and redecoration works.
2. request for compensation for damage to her property and personal belongings.

Background and summary of events

Background

The resident is a secure tenant of the landlord, a local authority. The property is a house. The tenancy commenced in 1989.
The landlord’s tenancy agreement confirms repairs obligations for the structure of the property and water and gas installations, and advises it will carry out repairs within timescales set by law or within a reasonable time of becoming aware of them. The tenancy agreement goes on to state: “The building, including any fixtures and fittings that we have provided are our responsibility unless otherwise specified. We are not responsible for insuring your furnishings and personal possessions, including the content of fridges, freezers and washing machines. We advise you to have insurance cover or enough money to cover any losses, repairs or the costs of replacing any items that you are responsible for.”
The landlord’s website advises that for leaks that cause damage to the resident’s home, it will send someone out within four hours, and a permanent repair will be carried out later if only a temporary repair is carried out to make the home safe.
The landlord operates a two stage complaints procedure, in which it responds within 10 working days at stage one and within 15 working days at stage two.
The landlord’s complaints policy advises that compensation claims should be considered in the first instance under its complaints procedure. When doing so, careful consideration should be given to how much, how reasonable and how justified the compensation is; if evidence is provided to support the claim; and whether the claim has been considered by its legal/insurance officers and what their recommendations are.
The landlord’s compensation policy advises that it will repair all damage caused to the property which is its repairs responsibility and allows for some reimbursement if residents wish to carry out their own decorations. For damage caused by a contractor, the policy advises that an investigation will be held jointly between the landlord and the contractor and the contractor would be encouraged to make an independent settlement and agree a level of payment to rectify direct damage caused to furniture and fittings; but if an adequate response is not received from the contractor, the landlord will assess any action to enable a conclusion to be reached. The policy goes on to advise that claims are based on their merits and that within 48 hours of notification, the landlord should assess damage, take photographs, commit information to file and make a judgement on the position on compensation.

Summary of events

On 1 October 2019, the lounge ceiling in the resident’s property was affected by a leak from the heating system. The resident’s account (from April 2020) advises she reported this during the day and then to an out of hours service, which she says resulted in a visit without the issue being repaired; while the landlord’s records note that on 1 October 2019, the resident called its out of hours line, declined attendance that evening and requested someone to attend in the morning.
On 2 October 2019 it is not disputed that the landlord’s heating contractor attended in the morning and repaired the leak in the afternoon, which involved part of the lounge ceiling being torn down. The landlord’s records then advise that on 4 October 2019, wet ceiling plasterboard was removed; a carpet was hoovered; and rubbish was taken away leaving no mess. Later in October 2019, the landlord supplied a dehumidifier, inspected asbestos and carried out electrics works. The landlord’s contractor then commenced routine repairs to restore the lounge ceiling on 18 October 2019, where they noted they “detailed timbers to joists, put baton’s on joists approximately 4linear mtrs. overboard ceiling approximately 6sq mtrs.”
In November 2019, the landlord’s records note the resident called for an update and reported that work including the painting of the lounge ceiling remained. The next month, in early December 2019, the resident called to enquire who was going to pay for a new carpet and sofa that got ruined after the leak, after which a repairs inspector who had been involved in the works advised this should be covered by contents insurance. It was noted that the landlord unsuccessfully attempted to call the resident to inform her of this.
On 19 December 2019, a contractor attended and carried out further works to the ceiling, which the landlord advises was when works were initially completed. The resident’s account advises these works were inspected by the landlord’s repairs inspector and a manager from the contractor, after which the operative was told to tidy up and leave.
From around 3 February 2020, the landlord’s records advise the resident reported works were incomplete and there had been missed appointments for finishing of the ceiling with an artex surface coating. It was noted that she reported the room had been unusable since start of works, because she had been waiting for the work to be finished, and that the property had been left in a mess for weeks.
On 5 March 2020, the landlord’s records advise it inspected the works and identified they needed to be referred to the landlord’s new contractor for the ceiling board to be refixed and reskimmed, as the works were unfinished and of poor workmanship.
On 16 April 2020, the resident complained to the landlord.
1. She complained that when an operative attended on 2 October 2019, they tore down part of the ceiling to resolve the leak without protective measures, which resulted in damage to carpet, furniture, personal possessions and the ceiling, the plasterwork of which reflected her Romany culture.
2. She complained about the delays completing the works and issues getting updates, and she highlighted it was six months since the leak, the repair was nowhere near finished and the room remained unusable.
3. She asked the landlord to ensure the works were done without unnecessary delay, subject to Covid-19 restrictions; to reinstate cultural plasterwork; to advise how to progress a claim against the landlord’s insurance; and to advise on compensation for the repairs delays and being unable to use the room for six months. She attached 14 photos.
On 30 April, the landlord issued its stage one response.
1. It confirmed works had been re-raised for a new interim contractor to do as a priority once works could resume. It confirmed the works were to take down part of the lounge ceiling; renew plaster board; skim and paint. It also advised the contractor had been asked to make good other ceilings affected by historic leaks, and dissatisfaction with the previous works had been referred to a contract manager.
2. It acknowledged issues in the management of the works, apologised for inconvenience caused to the resident and her family, and confirmed the contractor had been asked to liaise with her about date and time of visits.
3. It supplied a compensation form for the resident to return with receipts so it could consider a claim.
In July 2020, the resident submitted a claim form in which she stated a carpet, a computer, a teddy bear, a settee and an armchair required replacement and other items were damaged/scratched, as a contractor took the ceiling down without covering items and also took landing carpet up without refitting it. The costs claimed were not stated. The landlord reviewed this and informed the resident that it was unable to process a claim without evidence of the cost being claimed. It requested receipts, photographic evidence and as much detail as possible.
On 24 July 2020, the landlord raised a repair for its contractor to carry out works to the ceiling, which was raised as a routine repair.
In August 2020, the resident wrote to the landlord and advised she no longer had receipts for damaged items. She stated that costs to replace a carpet, a computer, a settee, an armchair, a teddy bear and books totalled over £4,000 based on information enclosed such as product pages from retail store websites. In September 2020, the landlord wrote to the resident and explained it had considered the compensation request, but it was unable to compensate for the losses incurred. It explained that it was responsible for the building, but it was not responsible for insuring furnishings and personal possessions and recommended all tenants have insurance cover, although this was not a condition of tenancy.
On 14 October 2020, the landlord’s records advise its contractor attended to carry out the re–raised ceiling work but were unable to gain access, after which repairs were re-booked for 6 November 2020.
On 23 October 2020, the resident requested escalation of her complaint. She stated that the damage resulted from a leak in the central heating pipework, the landlord’s responsibility, and from its contractor’s failure to provide protective sheeting before undertaking work. She queried why she was asked to submit quotes for replacement if the landlord was never realistically going to consider the claim. She also reported that repair works promised in the stage one response had still not been completed and the lounge had now been unusable for a year.
On 6 November 2020, the landlord’s records advise its contractor cancelled the arranged appointment as it had not allocated enough operatives for the job, and the appointment was rebooked for 17 November 2020.
On 10 November 2020, the landlord issued its final response.
1. It acknowledged initial repairs to the ceiling were not to an expected standard, and it had been concluded that ceiling boards would need to come down and be refixed, and the ceiling skimmed, so the resident could decorate and ‘comb’ it in accordance with her Romany tradition.
2. It explained that after repairs were resumed in July 2020 after lifting of restrictions, its contractor was unable to gain access, so another repair was not raised until October 2020. It apologised for a failed attendance on 6 November 2020 and confirmed this was rebooked for 17 November 2020. It noted the resident had many possessions stored in the lounge and advised it would be helpful if she could partially clear it so its contractors had a reasonable amount of space in which to work.
3. It explained tenants are expected to have their own contents insurance so that they can claim for any damage caused by incidents such as water leaks. It explained tenants are asked to complete a compensation form as there are occasions when it may be considered liable. It stated that in the resident’s case there was no evidence its contractor was responsible, and therefore it was unable to compensate for damage to personal possessions. It acknowledged she believed some of the damage was due to failure to ensure plaster did not fall on furniture and possessions, and stated this appeared to be in part due to the limited space contractors had to work in.
4. It accepted it had taken longer than originally planned to carry out works to the lounge ceiling to a satisfactory standard. It noted multiple factors had contributed to the delay, including the poor standard of the initial repairs, delays caused by the pandemic, and difficulty accessing the resident’s home since July 2020. It acknowledged the resident suffered some inconvenience as a result of these delays and offered £100 in recognition of this.
On 17 November 2020, the landlord’s records advise its contractor attended to assess the works, then on 15 December 2020 its contractor removed, replaced and replastered the ceiling, ready for it to be covered with an artex surface coating. From January 2021, the landlord’s records advise that at least six appointments were made to complete the artex work, which resulted in missed appointments or were rescheduled by the contractor.
The resident raised the matter to her MP, who wrote to the landlord on 4 January 2021 and asked it to look at the decision again. It was highlighted she had understood in good faith that she would be eligible for compensation due to the damage being caused by the contractor failing to protect property before commencing work on the lounge ceiling. It was also highlighted she advised she was unable to claim from insurers due to the length of time since the incident.
On 8 January 2021, the landlord wrote to the MP.
1. It advised the leak was resolved the day after it occurred and that although the room was usable, ceiling works completed on 19 December 2019 were found not to be of good standard in March 2020. It advised works were not recommenced until July 2020 after lockdown, when there was difficulty obtaining access which the resident denied, and then works were not completed until December 2020.
2. It noted it understood some debris from ceiling repairs fell on the resident’s sofa and possessions, and explained that the level of possessions in the lounge had made it difficult to carry out works or even enter the room. It noted the resident had not asked contractors to provide protective covering, provided this herself, or asked for works to be put on hold until this was provided.
3. It accepted that initial reinstatement of a small section of ceiling removed to repair a leaking pipe was of a poor standard, and that the resident suffered some inconvenience due to the time it took to repair the ceiling to a satisfactory standard, and noted it had offered £100 for this. It advised it would be appropriate to increase the offer to £250 which represented £100 for each month in carrying out the works completed in December 2019.
4. It advised that the tenancy agreement states tenants should have their own contents insurance and submit claims to their insurers for any accidental damage caused by unforeseen incidents such as a leaking pipe. It noted that the resident was invited to submit a claim as there were occasions when it may be considered liable for damage, and there was no evidence she was told she was eligible to receive compensation. It highlighted that the resident took two months to submit a compensation form, which excluded any evidence, and then another month to provide estimated costs of replacing damaged items. It advised a claim should have been made to insurers and at no time did it confirm it would compensate for the damage, so could not be held responsible for delays approaching insurers.
5. It advised that the complaint highlighted it needed to review circumstances in which tenants are asked to submit a compensation claim, and that these should not be invited unless it is clear poor workmanship is a direct cause of damage to a tenant’s possessions as the current practice raised expectations that could not be fulfilled.
The same day, the landlord wrote to the resident and outlined its position and offer of £250.
After the resident brought her complaint to the Ombudsman, between April and May 2021 she and the landlord engaged in mediation facilitated by this Service. The landlord subsequently completed some works to artex the surface of the ceiling on 30 April 2021 and later attempted to attend to apply a sealer coat/painting to the artex and plaster, but the resident advised she did not wish for further appointments to be arranged and would carry out these herself. The landlord has advised it was willing to pay £26 per square metre for the resident to arrange to reinstate the plasterwork on her ceiling, on presentation of an invoice for the work, and increased its compensation offer to £400 in recognition of delays. The landlord confirms this amount remains on the table.
The resident has advised she was unwilling to accept the £400 as this would not even cover the cost of laminate flooring she had put down. She stated that the landlord’s invitation to submit a claim led to her expectation it would compensate for the damage, and so she did not make a claim against her own insurance.

Assessment and findings

The landlord’s response to the resident’s reports of a leak and subsequent repair and redecoration works.

In accordance with the tenancy agreement and the Landlord and Tenant Act 1985, the landlord is responsible for repairs in relation to pipes supplying water and heating, and its website confirms it aims to respond to leaks which cause damage to property within four hours.
There are contradictions between the landlord’s records, which says it was called out of hours and was asked to attend the following morning, and the resident’s account, which says the landlord attended out of hours but resolved the repair the following day.
While there is this dispute, both accounts suggest the landlord met its repairs obligations, as if the landlord first attended on 2 October 2019 this would appear to have been at the resident’s request, and if the landlord attended on the evening of 1 October 2019 before resolving the leak on 2 October 2019, this would still demonstrate it attempted to resolve the leak in a timely manner. It is not in this Service’s authority or expertise to determine who is right and who is wrong, or if the landlord was negligent to not resolve the repair earlier than it did, however based on the records available the landlord appears to have responded reasonably to initial reports of a leak.
Following resolution to the leak, the landlord took steps to supply a dehumidifier and progress matters so that works commenced in mid-October 2019 and were initially completed in mid-December 2019, although the resident had to chase for updates. There is no information available about timeframes in which the landlord carries out routine repairs, other than that these are aimed to be within a reasonable time of becoming aware of them. In the Ombudsman’s opinion, the landlord’s actions and the two month timeframe in which the initial repairs were completed were not unreasonable.
When the resident reported the works were incomplete and missed appointments around 3 February 2020, the landlord carried out an inspection the next month, re-raised works to its new contractor, and referred concern about the previous work to a contract manager. This demonstrates the landlord took appropriate action in response to the resident’s concerns in a relatively timely manner.
Following the stage one commitment that the contractor would liaise with the resident once works could resume after lockdown, the landlord has stated its contractor attempted access in July 2020 and that the resident disputes this. The contractor records start from October 2020 which provide limited evidence that works were progressed prior to October 2020 before being completed in December 2020. This appears to demonstrate that between July and November 2020, there were delays re-commencing the works, issues meeting commitments to liaise/communicate with the resident effectively, and issues with recordkeeping, over a four month period. In addition, the information provided shows that after completion of the works in December 2020, the artex works were re-booked on at least six occasions and involved missed appointments on some occasions.
In this case the Ombudsman notes that the landlord has acknowledged service failures in its management of this case and offered £400 in recognition of delays. The Ombudsman will not make a finding of maladministration where a landlord has offered suitable redress to resolve a complaint. This further assessment therefore considers whether the landlord has offered reasonable redress for its acknowledged failings.
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
Between July and November 2020, this Service has identified that the landlord should have demonstrated it re-commenced the works and met commitments to the resident to liaise with her in an effective manner. The resident also reported several missed appointments when reporting works were incomplete around February 2020 and experienced some missed appointments and delays between January and April 2021. A compensation amount would therefore have been reasonable for missed appointments, repairs delays, and time and trouble and distress and inconvenience that will have been caused to the resident, which the landlord’s original offers of £100 and £250 may not have fully acknowledged.
After the resident contacted this Service, the landlord engaged in mediation with the resident and has clearly attempted to be resolution focused by arranging additional finishing to the ceiling, reviewing compensation again and increasing its compensation offer to £400.
In its Remedies Guidance the Housing Ombudsman Service sets out three compensation ranges which this Service takes into account when determining cases. The financial remedy provided by the landlord falls in the second highest range, where there has been considerable service failure or maladministration but no permanent impact on the complainant, and where has been failure over a considerable period of time to address repairs and chasing by a resident.
It will have been distressing to the resident that there were delays rectifying the initial ceiling works identified to be of poor workmanship, which may have affected when the room could be restored completely back to normal and when the ceiling could be restored to a condition that reflected her cultural tradition. However, the landlord has advised the room was not unusable, and the delay in redoing the ceiling is likely to have had less of an ongoing impact than similar delays to other types of repair, such as leaks or an issue which more directly affects a living space which a resident occupies/moves around.
Accordingly, the financial remedy of £400 offered by the landlord is in accordance with the Service’s Remedies Guidance and, considering all of the circumstances of the case, in the Ombudsman’s opinion appears suitable financial redress for the service issues and delays identified.
The above demonstrates the landlord appropriately responded to the resident’s reports of incomplete repairs, acknowledged service failings and took action to complete repairs. The landlord was then resolution focused by engaging in mediation and seeking to make further redress in recognition of delays and distress and inconvenience the resident has experienced.
Overall, the landlord’s responses evidences it appropriately put things right, in line with this Service’s Dispute Resolution Principles.

The landlord’s response to the resident’s request for compensation for damage to her property and personal belongings.

The Ombudsman’s remit in relation to complaints is limited by its Scheme, and Paragraph 39(i) of the Scheme states that the Ombudsman will not investigate complaints which in the Ombudsman’s opinion “concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.”
This means it is not within the Ombudsman’s authority or expertise to determine cause, liability or negligence for the leak and damage to the resident’s possessions, but it can assess whether the landlord has followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case.
The complaints and compensation policies set expectancies about how the landlord will carefully consider compensation claims under its complaints procedure. In this case, the landlord does not demonstrate it fulfilled all the expectancies in its policies, such as discussion with an insurance officer, joint investigation with contractors or direct damage assessment.
However, although the resident made insurance enquiries in December 2019, the first recorded report that the contractor caused damage does not appear to have been until the complaint on 16 April 2020, while the first recorded amount claimed does not appear to be until August 2020, which are over six and ten months after the claimed incident occurred.
The landlord does not appear to limit the timeframe in which it considers complaints, however as outlined above, the Ombudsman’s remit in relation to complaints is limited by its Scheme, and Paragraph 39(e) of the Scheme advises that the Ombudsman will not investigate complaints which, in its opinion, “were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising.”
This reflects it may be difficult to carry out a full investigation the longer time goes on, and so while policies would be expected to be followed if reports of contractor damage were closer to the incident, in the Ombudsman’s opinion it was not unreasonable that the landlord did not strictly follow these here.
The landlord has demonstrated it reviewed information from the resident, requested and reviewed further information, then referred to the recommendation of its tenancy agreement to have insurance cover. In the Ombudsman’s opinion, this was reasonable, as while the landlord is obligated to maintain water and gas installations, this does not mean it is responsible for leaks from these installations unless there is evidence for liability, which it clearly considered and saw no evidence for. The landlord was reasonable to maintain this position in further responses, as further information provided related to item replacement costs and no evidence was provided which it considered sufficient to change its view.
The landlord does appear to have considered the possibility that damage was caused in the way the resident described, and appears to be of the view that even if this was the case, action or inaction by the resident may have been a contributing factor. This suggests that liability may be disputed even if damage was caused in the way described, and as outlined at Paragraphs 41 and 42, it would not be within the Ombudsman’s further authority or expertise to make a legally binding determination on such a dispute.
The landlord’s response to the resident’s contention that she was led to believe she was eligible for compensation was also reasonable, as a possible outcome to any claim is that it may be denied. This Service has seen no evidence showing the landlord misled the resident and records show that the attempted response to previous enquiries about damaged possessions was to refer the resident to her own insurance. Further, since the claim was not brought to the landlord until six to ten months after events, it is also not clear that the landlord’s response to the claim directly resulted in the resident being unable to make a claim to her insurer.
This demonstrates that the landlord’s response to the resident’s claim was overall reasonable, and by offering £400 in relation to the repairs delays and £26 per square metre to carry out finishing to the ceiling in the way she wants, it has been empathetic and has exercised appropriate discretion in line with its policies, which allow for some reimbursement where residents wish to carry out their own decorations.

Determination (decision)

In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, the landlord has made reasonable redress for the service failures identified in its response to the resident’s reports of a leak and subsequent repair and redecoration works.
In accordance with Paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s response to the resident’s request for compensation for damage to her property and personal belongings.

Reasons

While there have been missed appointments, repairs delays and evidence of time and trouble, the landlord has been resolution focused and sought to make redress to the resident in recognition of delays, distress and inconvenience, which in the Ombudsman’s opinion appears suitable financial redress for the service issues and delays identified in respect of the resident’s reports of a leak into her lounge.
While the landlord does not demonstrate it fulfilled all the expectancies in its policies, this was reasonable given the delayed timeframe the claim was submitted, and it has demonstrated it has reasonably considered and responded to the resident’s request for compensation for damage to her property and personal belongings. There is no evidence that the resident was misled or that the landlord’s response to the claim had an adverse impact on the ability to make a claim on insurance. It is not within the Ombudsman’s authority or expertise to determine matters further if liability over damage to the resident’s property and personal belongings continues to be disputed.

Orders and recommendations

Recommendations

The landlord to re-offer the £400, and reimbursement of £26 per square metre if the resident carries out further ceiling works and presents the invoice for this within the next four months.
The landlord to ensure it responds to compensation claims in line with its policies for these, and reviews the circumstances in which it asks residents to submit a claim, as it said it would do in its letter dated 8 January 2021.
The landlord to ensure it maintains and supplies accurate records in regards to repairs, in particular where its out of hours service is involved.
The landlord to consider having a repairs policy in place, with reference to the Ombudsman’s spotlight report on complaints about repairs.