Westminster City Council (202002702)

 

 

 

 

REPORT

COMPLAINT 202002702

Westminster City Council

14 January 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 a leak at the property and its subsequent compensation offer.

Background and summary of events

Background and policies

2. The resident has been a leaseholder of the landlord, at the property, from 16 January 2017.
3. The landlord has a two-stage complaints policy, both at which the landlord aims to provide a response within 10 working days. 
4. In resolving a complaint, the landlord’s policy provides for compensation to be offered in circumstances including where something has gone wrong, the landlord has failed to do something and where the complainant has suffered financial loss or inconvenience, for example.
5. In calculating compensation, the landlord may consider delay (£500 per year), the resident’s time and trouble in pursuing a complaint (£50-£250; calculated at a maximum of £250 per year of delay), delay in progressing an insurance claim (£50-£100) and distress and inconvenience (£500-£2000 per year).  Disturbance payments may also be offered where a resident is required to move from the property.

Summary of events

6. On 14 August 2019, the resident reported a leak at the property to the landlord’s out-of-hours service.  It attended that same day, so as to make safe the electrics although when the contractor attended, it was determined that this was not needed and instead, it undertook water removal from boxing in the property which was in the kitchen at ceiling height and took photographs of the leak. 
7. At the same time, a plumber attended to trace and remedy the leak which was suspected to be coming from the property above, although access was not possible and a calling card was left.
8. It is unclear what the landlord’s intended actions to resolve the issue were, however, the resident appears to have been advised to use buckets to collect the water and on 19 August 2019, she again reported the leak at the property which had become “uncontrollable”.  Again, the landlord attended and tried to gain access at the property above the resident’s, however, due to the behaviour of the resident above, access was not possible. 
9. Again, there is no information as to the landlord’s intended next steps to resolve the issue, however, on 4 September 2019, the resident notified the landlord again of the continued leak.  It attended and on this occasion, determined that the cause may be due to a blocked drain and some loose paving slabs, instead of the property above and raised works for drainage specialists to attend, which was scheduled for 6 September 2019.
10. The landlord has not provided information to this Service as to whether the inspection went ahead on 6 September 2019 or any findings from that.
11. On 24 September 2019, the resident notified the landlord of the leak once again.  On attendance, it noted that it was worsening further still and was now leaking into the consumer unit.  A decision was therefore taken to make safe the electrics in the property and to pull the main fuse in the electrical intake room. 
12. On the same date, the resident made a formal complaint about the landlord’s handling of the reported leak.  In particular, she spoke of three missed appointments and being told by workman that the issues were due to the drain and paving slabs and also that the sink had to be unblocked, none of which had been done, despite assertions that it would be.
13. The resident stated that she had chased the landlord on a number of occasions, amounting to in excess of four hours of call time and described the situation in the property, which included falling plaster, buckets collecting water and water getting into the electrics.  She described the stress the situation was causing to her and her partner.  As resolution to the complaint, she wanted the leak and repairs to be resolved as a matter of urgency, a letter confirming that the leak had been resolved for the purposes of insurance and compensation for lost time and distress that the situation had caused.
14. Arrangements were made to access the property above on 27 September 2019, although upon access, it was determined that there were health and safety issues which rendered working in the property impossible. This has been confirmed by the documentation the landlord has provided to this Service.  It is noted that on the same date, the landlord, in its internal correspondence, discussed other works required, specifically to “lift slabs and pump out the water” in addition to “flashing works” around the drain.
15. A few days later, on 1 October 2019, the documentation provided to this Service indicates that the landlord was not of the view that the issue was to the slabs; the explanation being that ordinarily, when the slab is porous it shows on the internal wall of the property along the stairs and there was no sign of this when inspected. It felt this view was supported by the fact that the same issue had occurred with an overflowing cistern elsewhere, causing the same problem in the same place as in the resident’s home.
16. In any event, the health and safety issues at the property above the resident’s were resolved and access was gained on 2 October 2019.  The leak was identified as an overflowing toilet cistern which was resolved the same day. 
17. In order to test the situation with the leak, the landlord place dye under the bath at the property above, as well as down the outlet on the walkway, under the slabs on the walkway and down into the toilet. Its records indicate that it intended to continue to monitor this, although there is no information as to whether monitoring occurred.
18. The documentation provided to this Service indicates that the landlord, on this date, intended on raising an order to seal the walkway and to “re-bed” the slabs outside.
19. On 7 October 2019, the landlord carried out an asbestos survey at the property, given the leak and the damage to the ceiling, which required repair; this was arranged just for the kitchen where there had been damage to the ceiling, although the resident asked for all areas to be tested, which the landlord agreed to and having carried out the survey, determined that there was asbestos in the kitchen ceiling artex.
20. On 8 October 2019, the landlord issued its stage one response to the complaint. In its response, the landlord apologised for the delays in resolving the leak, acknowledging the distress and inconvenience caused and recognising that it had some improvements to make around its service delivery. It explained that it had experienced difficulties in accessing the property above and that several attempts were made to do so over the weeks. The landlord offered the resident £50 for the delays experienced.
21. It added that it had now resolved the leak which it believed to be due to an overflowing cistern in the property above. It said that it did not believe the walkway was the cause of any water ingress and apologised that this cause had been given.  It said it would seal it as a precaution anyway, however, as well as address some cracked paving slabs.
22. Additionally, it noted that asbestos tests to the ceilings within the property and the duct in the kitchen had been undertaken and said that once the results are available, it would investigate the pipework within the duct, which would also allow it to determine if this was a contributing factor.
23. Finally, the landlord said that due to the design of the building, it was not always easy to ascertain the cause of water ingress and that this can lead to different types of investigations being required.  It acknowledged that the situation had been compounded by the lack of access to the property above, which it stated it would ordinarily seek an injunction for but this was not possible in this case.
24. The resident requested her complaint be escalated to stage two of the landlord’s complaints process. She was dissatisfied with the landlord’s explanation for delay, citing the issue of water ingress not only being due to the overflowing cistern in the neighbour’s property above and said that this had been confirmed by the fire brigade, who had said that rain water drainage was an issue.  The resident was dissatisfied with the length of time it took to address the leak and the advice she received to “use buckets” when there was a “deluge” of water for a protracted period of time.
25. The resident stated that she had now spent over six hours on the phone to the landlord trying to get the matter resolved and that whilst she was aware there were problems accessing the property above, she was dissatisfied that the landlord did not take more robust action in gaining entry.
26. On 25 October 2019, there were further discussions at the landlord as to the cause of the leak. It was noted that there was one aspect of the investigation to conclude which related to the duct at high level, through which the water initially came and that this would need to be removed to ensure there is no issue with the pipework.  The issues were ultimately determined to be purely through the bathroom and not related to the walkway, however; “the walkways are designed to allow run off to flow under concrete flags to the outlet, so there is always water there after a rain”.  As such, the walkways had not been sealed and the landlord noted that no further reports of leaks had been received from the resident.
27. On the same date, the landlord telephoned the resident and offered her £260 compensation as resolution to the complaint, in addition to the £50 offered at stage one of its complaints process. The resident refused this, stating that she would accept no less than £400, which was for food and expenses incurred as a result of the unresolved leak.
28. On 13 November 2019 the landlord issued its response to the complaint at stage two of its complaints process.  It partially upheld the complaint. The landlord expressed its understanding of the resident’s frustration in relation to access at the above property not being possible when she reported the leak on 14 and 19 August 2019.  It explained, however, that it had a duty of care towards its employees and contractors and the landlord could not guarantee their safety in entering the property above.  It advised that the behaviour of the resident at the property above had been reported to the relevant managers to address.
29. It apologised for the delays in resolving the leak and explained that there were circumstances that severely impacted its ability to resolve the leak, although it could have done more to update the resident and provide her with support.  The landlord said that it would take this learning forward and that the team had been reminded of the importance of this.
30. It explained that works had been raised to remove the artex in the kitchen and thereafter, the buildings insurance would make good the damage caused by the leak.  It noted as leaseholder, the resident was responsible for asbestos in the property, however.
31. The landlord said that in terms of being compensated for food expenses during the leak, it would not be liable for these, as this is something that should be claimed under the resident’s home insurance policy.  It had decided to offer compensation for this, however, as a gesture of goodwill. 
32. The landlord offered the resident a total of £340 compensation, comprised of £270 for expenses incurred between 24 September and 2 October 2019, where the electricity in the property was not working and £70 for the delays to repairing the leak. The landlord explained that it had calculated the £270 at £15 per person per day (there were two residents at the property), which it said is applicable where it needs to decant a resident and they have no means of cooking in the decant property.

Post complaint

33. The resident has stated that the water ingress into the property was not resolved, with leaks continuing into March 2020 in relation to the neighbouring property, this time, with regards to unfinished works there, as well as issues with cracked paving slabs (directly outside of the property) remaining unresolved.
34. The resident has also stated to this Service that there have been problems with the landlord’s insurance company delaying in resolving the issue and that she would like disclosure of a transcript of all of the works carried out and a copy of the surveyor’s report.

Assessment and findings

35. Once on notice, the landlord was required to carry out the repairs it was responsible for within a reasonable period of time, in accordance with its obligations under the lease and in law.  The law does not specify what a reasonable amount of time is; this depends on the individual circumstances of the case.
36. In this case, the landlord was responsible to attend to, resolve and repair the leak, because although the resident is a leaseholder, the terms of the lease render the landlord responsible for the structure and exterior of the building, which includes a leak coming into the property from outside.  The landlord is also responsible for dealing with leaks coming from another tenanted property.
37. The landlord appropriately attended the reports of the leak, responding within a reasonable period of time on each occasion and assessing risk and making safe the electrics where needed.  The crux of the issue in this case, however, is the length of time it took the landlord to ultimately resolve the issue; an issue which the resident has communicated to this Service remained unresolved despite the landlord’s assertion that it had been.
38. The issue was first reported on 14 August 2019 and remedied (insofar as the overflowing toilet cistern), around two months later, on 2 October 2019.  This was an inappropriately lengthy period of time, which the landlord has accepted in its response to the complaint.  Whilst it is accepted that circumstances were difficult with the resident above and gaining access, to leave the property leaking for two months, with the resident having to capture water in buckets was unacceptable.
39. The landlord in its complaints response has stated that it made numerous visits to the resident at the property above in order to gain access, however, evidence of this has not been provided to this Service. The landlord has a right to enter a property without notice in circumstances of emergency and although there were complexities here, two months is an excessively lengthy period of time in which to wait and the landlord has failed to demonstrate it made reasonable attempts to gain access in this problematic situation, or that it was doing enough to investigate and resolve the issue in a timely manner.
40. There is also confusion in this case as to the root cause of the issue; the landlord’s documentation indicates there being an issue or possible issue with the paving and sealing and other investigations/works being required to the duct at high level, but there is then a change of mind about this.  It is not clear on which basis the landlord intended to rely. The landlord is entitled to rely on the expertise of its independent contractor; however, there seem to have been conflicting opinions in this case, which led to works being asserted as being needed and then not being done, which undermined the integrity of the landlord and its decision-making and reasoning.  Notably, in its complaints response, where it stated that it did not believe the walkway to be the issue but said it would repair it anyway but then seems to have not done so – or at least, not done so in the area outside of the resident’s property, which it said it would do.
41. Having said this, the landlord whilst being responsible for repair, was not responsible for improvements and was not obliged to take action where the leak had been resolved and it was noted there had been no further reports since the issue with the cistern was resolved.  However, the context of this being just three weeks from when the cistern was repaired is arguably not long enough to be sure that the problem had been eradicated, particularly if there had been no rain. 
42. There is insufficient evidence of the landlord thoroughly investigating all possible causes of the leak which were mentioned and it is unclear whether and to what degree the various possible causes were acted on.  It is also unclear whether the landlord monitored the situation as it said it would in its discussions about the issue so the resident’s expectations in terms of what was being done and when were poorly managed; although there is no evidence of the telephone calls, it is clear that the communication in this case was below standard and indeed the landlord has accepted this in its formal response to the complaint.
43. In terms of the landlord’s complaints handling, whilst this in itself was not delayed, it provided insufficient explanation of what it had investigated and its findings.  Also, it did not set out how it had or would monitor the situation.  This left the resident in doubt as to whether the matter had been sufficiently investigated and resolved.  Furthermore, the landlord did not acknowledge the time and trouble the resident described as having gone into getting the matter resolved – the hours of telephone calls she referred to – and nor did it address the missed appointments she mentioned.  
44. There has been no evidence provided to this investigation of missed appointments and/or investigations into those and as an evidence-based service, the Ombudsman cannot find service failure on the part of the landlord for the missed appointments referred to.  What the Ombudsman can find, however, is that the landlord failed to address these points in its complaints responses, thereby not demonstrating that it had heard and understood the concerns raised and appropriate responding to those during the complaints process.
45. As resolution to the complaint, it was appropriate that the landlord found and rectified the issue with the cistern and that it apologised for the delay and recognised the distress and inconvenience caused.  In terms of the compensation amount offered, the landlord has stated that it has used its discretion to act within its compensation policy in awarding compensation for expenses incurred and within the Ombudsman’s guidance in respect of compensation for delay.
46. Although the landlord accepted there were failures in its service in its response to the complaint, the Ombudsman finds maladministration, taking into account both the landlord’s handling of the leak and  its complaint handling. The Ombudsman’s compensation guide for service failure is up to £250 and maladministration from £250-£700, although each case turns on its own facts and merits.
47. It was appropriate that the landlord offered compensation to the resident for expenses incurred when there was no electricity in the property.  It was appropriate because the landlord is responsible for providing access to utilities and the utilities in terms of electricity were turned off. It was also reasonable that it offered compensation for delay, in accordance with its compensation policy.
48. The landlord did not go far enough, however, in its compensation offer, insofar as the £70 for delay does not reflect the gravity or extent of the problem, nor did it sufficiently investigate the possible sources of the leak and was therefore unable to provide reassurance that matters had been satisfactorily remedied.
49. In terms of the matters post-dating the complaint, pertaining to the landlord’s handling of the insurance claim, a recommendation has been made which encompasses any latter difficulties. 
50. Finally, regarding the disclosure of documents, the resident is able to request these from the landlord directly and any dissatisfaction she has with its disclosure or non-disclosure of information, she is able to approach the relevant body, which is the Information Commissioner’s Office (ICO).

Determination (decision)

51. In accordance with paragraph 54 of the Scheme, there was maladministration in respect of the complaint.

Reasons

52. There was service failure, insofar as there was an inappropriately lengthy delay in the landlord remedying the leak.  Further, the landlord did not sufficiently investigate and remedy potential other causes of the leak besides the cistern from the property above.  There was a lack of expectation management and communication and the landlord’s compensation offer was not proportionate to the service failures identified.

Orders and recommendations

Orders

53. The landlord to pay the resident £180 compensation for its handling of the leak (this in addition to the £70 already offered equates to £250, which is in accordance with the Ombudsman’s ‘Guidance on Remedies’).
54. The landlord to re-offer the resident the £340 compensation it offered at stage two of its complaints procedure (if the compensation has not been accepted already).
55. The landlord to confirm to the resident any outstanding investigations and works in relation to the leak.  It should also provide timeframes for completion.
56. The landlord to carry out a root cause analysis and lessons learned exercise as to what went wrong and to identify any processes/policies/training in place to help prevent a recurrence.  The landlord to provide evidence of this to this Service.
57. The landlord to confirm compliance with these orders by 11 February 2021.

Recommendation

58. The landlord to ensure that its insurance process in respect of this incident is processed and completed within a reasonable period of time of receipt of this determination.