Westminster City Council (202009409)

REPORT

COMPLAINT 202009409

Westminster City Council

29 April 2022

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 resident complains about the landlord’s handling of their complaint and compensation claim in relation to a number of leaks into the property.

Background

2. The landlord’s compensation policy sets out that there will be occasions when mistakes cause loss or inconvenience for the resident. Claims for compensation will be considered on a case-by-case basis taking into account the circumstances of each case. The landlord would consider whether there had been a failure that had resulted in, time and trouble, distress or inconvenience for a resident. It would look at whether there had been a loss of a non-monetary benefit, for example, the loss of a room, or living in unsatisfactory conditions. It would also consider if stress, anxiety, inconvenience, frustration, worry and uncertainty had been experienced. The policy said that any amount of compensation ‘…will need to take account of all the circumstances including the severity of the distress, the length of time involved and the number of people affected.’

Summary of events

3. On 7 December 2020 the resident logged a formal complaint with the landlord about a leak that had been affecting their property from the leasehold flat above for five years, around the same time that the owner carried out major works to install a shower/toilet. The resident believed that the leaks were caused by these works and explained that they left the family with no light in the bathroom for many weeks. As well as past incidents, on 22 April 2020 a major leak had caused water to pour down the walls, into the storeroom and electric fuse box and through the bathroom light. Water also damaged their belongings. The resident described the incident as distressing and causing anxiety for them and their family.
4. The resident detailed an occasion where they felt that the landlord had failed to follow its policy and procedure in gaining access to the above property to resolve the severe leak and did not take appropriate actions to ensure the matter was being dealt with. They also detailed inaction by various staff members and said, ‘Due to their negligence and incompetence, this matter is still on going and is still impacting my family…’
5. The resident said that a further leak then occurred on 6 November 2020. They reported this and an operative attended the property and switched off the bathroom lights. The resident explained, ‘We were left with no light and water dripping from my bathroom ceiling for a few days until the light was put back on the 11th of November 2020. However, on 14th November 2020 water was leaking into my bathroom ceiling and into my lights again.’ An operative attended and again disabled the bathroom light, and the resident reported that they had been without a bathroom light ever since. On 20 November 2020, a building surveyor advised that they would serve the leaseholder with three notices to gain access to the property so that the landlord could investigate the source of the leak and resolve it, and if the leaseholder did not respond to the notices the landlord would obtain a court order to access the property.
6. The resident set out the impact the leaks had on them and their family, saying these had a ‘prolonged effect on myself and my families health and mental well-being.’ Health had declined, exacerbated by the leaks and lack of basic facilities. The family had to have showers/baths in the dark which was ‘degrading and major health hazard’ as they had all experienced falls and slips. The resident asked the landlord to investigate and fix the leak issues immediately, and pay compensation for, ‘…the suffering my family and I endured over the last 5 years due to the water leaks, including damages to my belongings, damage to our health, disruption to our daily life and lack of basic facility.’
7. The landlord’s 31 December 2020 stage one response focused on the November 2020 leak, stating that it had raised an emergency job to make the resident’s bathroom light fitting safe, which meant disabling it. Contractors immediately attempted to speak with the leaseholder but received no answer. Further attempts were made to contact the leaseholder on 19 November, 24 November, 1 and 8 December 2020 in the form of letters and calling cards. Eventually contact was made and an inspection was carried out, which found a leak under the bath. The leaseholder, whose responsibility it was to repair this, was advised that they would need to get their plumber to attend urgently. The landlord then attended to reinstate the bathroom light on 16 December 2020.
8. On 12 January 2021 the resident sent a stage two complaint, saying that the landlord had failed to acknowledge the seriousness of the impact the water leaks had on them and their family over the past five years, and the stage one response had only dealt with the leak from November 2020, ignoring all the other instances since 2015.The resident noted that 27 repairs were raised since 1 July 2015 in relation to the leaks, explaining, ‘As a result of these water leaks, I was left without light in my bathroom for 119 days over 5 years.’
9. The resident referred to the major leak in April 2020 stating, ‘Water was pouring down my wall, socket, light switch, and electric fuse box…Westminster City Council put me and my family at serious risk on this occasion as the water leak could have caused a fire risk and an electrocution hazard.’ The resident said it took the landlord six months to send a building surveyor following on from this leak.
10. The resident referred to being left without a bathroom light for weeks, describing this as not just a major health hazard but ‘degrading at a basic human level’, and asked the landlord to, ‘Compensate for the suffering my family and I endured over the last five years due to the water leaks, including damages to my belongings, damage to our health, disruption to our daily life and lack of basic facility.’ They also asked for an explanation as to why it took five years to gain access to and inspect the leaseholder’s property, and an apology for the suffering the family endured.
11. The landlord acknowledged this on 2 March 2021 apologising for the delay in doing so. In reply the resident pointed out that there had been further leaks into their property in January 2021, bringing the total days without a working light in the bathroom to 124. The landlord updated the resident on a couple of occasions following this, and then provided the stage two response on 14 April 2021.
12. In this the landlord concluded that insufficient effort was made to engage with the leaseholder over the five-year period to ensure that the repairs undertaken were of a good quality. It said that this failing was due to a lack of clarity in staff roles and responsibilities, lack of training on processes and poorly documented procedures for staff to follow. Sincere apologies were offered for these failings and the impact of the resident.
13. The letter explained that a new process was now in place to gain access to leasehold properties suspected of causing leaks. It said, ‘This new process should ensure that all staff involved in the management of leaks know their role and what to do to ensure repairs are completed quickly.’ Following the January 2021 leaks, it had taken action to ensure that the repairs were completed to a good standard and should not be repeated, and the resident had been provided with a direct line number to contact should a leak happen again.
14. The landlord acknowledged the resident’s frustration over the amount of time it had taken to address their concerns and that it had taken an unreasonable amount of time to reach this stage saying, ‘…you have persistently taken the time to chase the Council to resolve it and remained patient throughout.’ It said that the complaint was very serious, and as such it offered a total of £1,500 in compensation (£100 for time and trouble in pursuing the complaint, £700 for the impact that the repeated leaks had on the enjoyment of the resident’s home, and £700 for the distress and inconvenience caused to the family).

Assessment and findings

15. The resident has explained that they are dissatisfied with the amount of compensation offered as this is insufficient in light of the years of inconvenience and distress the leaks caused. They say that they were left without light in the bathroom for 124 days in total, and had to have baths and showers in the dark, and that this was degrading. These matters had an effect on the family’s mental wellbeing. Belongings were also damaged. The resident would like the rent paid for the six-year period refunded, which they say would be into five figures.
16. When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution:
    1. Be fair – treat people fairly and follow fair processes;
    2. put things right, and;
    3. learn from outcomes.
17. The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the leaseholder. If it is found that a failing did lead to an adverse effect, the investigation will then consider whether the landlord has taken enough action to ‘put things right.’
18. In its stage two response the landlord acknowledged:
    1. The stage one response’s failure to consider the wider issue that the resident had raised around the leaks reoccurring over the last five years, the impact on their home life, and the lack of assertive action by the landlord to identify the ongoing cause of them.
    2. The resident had reported leaks on multiple occasions, with a total of 31 jobs raised to attend and make sure the electrics were safe.
    3. A lack of information held by the landlord to show what action was taken to ensure that the leaseholder’s repairs were completed effectively.
    4. A failure to attempt to access the leaseholder’s property following the April 2020 leak, obtain evidence of the repair undertaken, and the delay in the surveyor attending.
    5. The impact these failings had on the resident and their family.
19. Therefore, it is not in question that there were failings on the part of the landlord, that the resident was not ‘treated fairly’, and that due process was not followed. Further, the resident has confirmed that the outstanding issue is the level of compensation offered. As such, this investigation focuses on whether the landlord has taken enough action via its formal complaint process to ‘put things right’ for the resident and ‘learn from outcomes’. 
20. It is important to note that, while the resident has referred to the impact the leaks had on the family’s health, this Service is unable to determine matters of causation and liability in terms of how a landlord’s actions might have impacted upon a resident’s health and well-being. Such issues would be better dealt with as a personal injury claim through the courts, or via an insurance claim, where appropriate professional medical evidence can be properly reviewed. This is in accordance with paragraph 39(i) of the Scheme which states that the Ombudsman will not consider complaints which concern matters where this Service considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, or other tribunal or procedure.

Putting things right

21. The landlord offered a total of £1,400 for the adverse effect the leaks had on the resident and their family, taking into account distress and inconvenience its failings caused, as well as the impact these had on the resident’s living conditions. This was in line with the landlord’s compensation policy.
22. While its policy did not set out specific amounts, the Ombudsman’s own compensation guidance advises that amounts of £250 to £700 are appropriate where there had been considerable service failure or maladministration, but no permanent impact on the complainant. The amount offered by the landlord is therefore at the higher end of the Ombudsman’s own guidance.
23. The resident is dissatisfied with this amount and is seeking a full rent refund for the six-year period. A landlord might be expected to reimburse rent for the period a property was uninhabitable, or a proportion of the rent for a period that one or more rooms in a property were unusable. However, in this case, while it is clear that the leaks and lack of a bathroom light impacted on the resident and the family and their use of the bathroom, there is no indication that these caused the property to be uninhabitable or the bathroom unusable for six years. Therefore, while the Ombudsman understands that the repeated leaks and lack of bathroom light would have been upsetting and extremely inconvenient for the resident and their family, there is no basis on which to order the landlord to refund six years rent.
24. The landlord also recognised failings in its complaint handling, and offered £100 compensation for these. Again, this is in line the £50 to £250 that the Ombudsman’s own compensation guidance recommends in cases where there was no significant impact on overall outcome.
25. As well as financial compensation, the landlord has also offered a full apology, acknowledging the failures, accepting responsibility for these, explaining why they happened, and provided assurances that the failurimgs should not occur again. This was appropriate and shows the landlord taking action to ‘put things right’ for the resident.
26. However, the landlord did not refer to the resident’s claim for damaged belongings. As this was an integral part of the compensation request at both stage one and two of the complaint process, it was a failing that this was not addressed.
27. When such claims are made a landlord should initially consider whether its actions may have contributed to the damage (outside of any strict liability claim). If the landlord accepted that it had been at fault, it should either put right any damage caused (for example, via a compensation payment) and/or facilitate a claim on its own insurance policy for any damaged belongings. If the landlord disputes that it is at fault, it should either refer the resident to their contents insurance, or to its own insurers, who would then establish negligence or liability to pay.

Learning from outcomes

28. The landlord’s stage two response sets out the steps it had taken to address the failings identified, detailing how these had occurred in the first place (a lack of clarity in staff roles and responsibilities, lack of training on processes and poorly documented procedures for staff to follow), and how this had been addressed: The process for dealing with leasehold properties suspected of causing leaks had been reviewed, and this now involved the landlord writing formally to the leaseholder to put them on notice of a leak, and explain the action that the landlord required them to take. The process ensured all staff knew their role and what to do to ensure repairs were completed quickly. Following this process meant that the landlord had gained access to the leasehold property in January 2021. The Ombudsman is satisfied that this demonstrates that the landlord has taken action here to ‘learn from outcomes’.
29. However, there is no detail on what actions the landlord has taken to address the other substantive failing in this case: A lack of action taken to ensure that the leaseholder’s repairs were completed. It is not clear how the landlord will confirm/inspect such repairs going forward.

Determination (decision)

30. In line with section 54 of the Scheme, there was service failure in the landlord’s handling of the complaint and compensation claim in relation to a number of leaks into the property

Reasons

31. The landlord acknowledged its failings, offered apologies for these, detailed what steps it had taken to improve its processes, and offered a reasonable sum of compensation. However, it did not address a substantive aspect of the compensation request: Damaged belongings. Nor has it detailed how it will confirm/inspect leaseholder repairs.

Orders

32. Within one month of the date of this report, the landlord must:
    1. Contact the resident to request details of the claim for damaged belongings, and deal with this in line with paragraph 27 of this report, writing to the resident (copying in the Ombudsman) detailing the outcome.
    2. Write to the Ombudsman setting out what action it will take (or already has taken) to ensure that leaseholder repairs such as those detailed in this case are completed satisfactorily.

Recommendation

33. If it has not already done so, the landlord should pay the resident the £1,500 offered in its stage two response.