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Southampton City Council (201913487)

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REPORT

COMPLAINT 201913487

Southampton City Council

10 December 2020

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 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 way the landlord dealt with the resident’s:
    1. report of a leak in his property in 2018.
    2. request for compensation for the 2018 leak.
    3. associated complaint.

Background and summary of events

  1. Repairs policy: The landlord undertakes to action standard repairs within 25 days with more vital repairs like mould, leaking roof and damp problems prioritised to within 10 days.  Some standard repairs/works not requiring such a prompt response may be scheduled as planned minor works with a longer completion timescale, in which case the tenant must be advised.
  2. Tenancy agreement: Section 5 of the landlord’s tenancy agreement outlines its  repairing responsibilities. Paragraph 5.3 states that it is for the landlord, once a repair is requested, to decide the nature of the repair to be carried out. The tenant’s responsibilities at paragraph 5.12 state that the tenant must allow the landlord access for maintenance, inspections and repairs.
  3. Complaints procedure: The landlord operates a two stage formal complaints process under which a Stage 1 formal complaint is responded to by the relevant service manager within 20 working days. If dissatisfied a complainant can ask that the complaint be informally reviewed by a tenants’ panel, or escalated by the complaints resolution team for a Stage 2 investigation by its complaint manager within 20 working days.
  4. Compensation: If a resident considers their property and/or belongings have been damaged as a result of disrepair they are entitled to make a claim against the landlord.  The resident will be expected to provide evidence of the damage, and the landlord will investigate a claim to establish if it is legally at fault and if so the extent of any resulting damage. If no negligence is found no offer of compensation will be made. A resident can also make a claim through their own insurance policy and if the insurer believes the landlord to be at fault it can seek recovery of payments from the landlord. The landlord’s website provides details as to how to make an insurance claim against it, and the evidence it will require.
  5. The resident has the tenancy of a one bedroomed flat on the 8th floor of a property, which is owned and managed by the landlord. There is an external flat roof to the property. In 2016 a leak of this roof caused damage to the resident’s property, for which he made a claim to the landlord’s insurers and was compensated. The resident has suggested he also received a rent abatement for having been unable to use at least one of the rooms in his property for the duration of the leak, although the landlord has not confirmed this.
  6. The landlord’s repair log indicates that in January 2018 the resident reported a further leak and damage to his bedroom ceiling. This would appear to have been again as a result of the flat roof. An internal repair record, in response to chasing by the resident in May 2018 notes: This is not just a regular repair but a very complex situation with all the blocks on the estate…….It will all be completed within the next two months, please convey my sincerest apologies to (the resident).’ The problem was eventually resolved in November 2018 with the landlord undertaking a full roof repair to the entire property, but it appears the resident was left with some staining to his ceiling.
  7. In January 2019 the resident made a request to the landlord for compensation for damage (ostensibly to his carpets and his ceiling) as a result of the leak. Following photographic evidence from the resident and an inspection by the landlord’s maintenance manager the landlord’s legal team refused the compensation claim. It said there was no evidence of damage to the resident’s carpets and that its officer had determined the ceiling stains to be ‘historical’ following the 2016 leak, for which the resident had already accepted compensation in full and final settlement. The landlord did however offer the resident a ‘goodwill gesture’ decoration voucher to enable him to decorate over the current stains.
  8. On 21 January 2019 the resident complained to the landlord about its decision. He did not accept the stains were historical as he said that following the 2016 leak the landlord had replastered and painted his ceiling, and so the stains must be new.
  9. There then followed an exchange of emails between the resident and the landlord’s area maintenance manager in which the manager tried to arrange a visit to inspect the stains and agree works needed, but the resident’s study commitments meant this was not possible. The manager then emailed the resident on 20 February 2019 to say his review of the property’s repair history and resident’s photos had led him to conclude the stains could be addressed by the landlord through the application of a stain block and a decoration voucher for the resident to redecorate the room. He asked for convenient dates for its decorator to attend.
  10. The resident replied, questioning how the landlord could diagnose the issue without reference to all the photographs (including those taken originally by its officer (paragraph 10)) and how it could be sure there was no mould above the ceiling which could exacerbate his already low immune system. He also questioned why he had previously been entitled to ‘rent compensation’ for the earlier leak but not this latest one when it had been for a longer duration.
  11. The manager said he would speak to the original officer and get back to him. On 19 March 2019 he replied. He said that after reviewing the photos and discussion with the officer they considered that the stains had been ‘…added to, following on from the last leak..’, that the ceiling was sound but that they would investigate his suggestion of mould on its underside. He said if mould was found the ceiling would be replaced, but if none found it would be treated with stain block. With regard to the resident’s question of having previously received ‘rent compensation’ the manager said he would clarify this with the local housing office but meanwhile asked the resident for a convenient date for the work to be done.
  12. The resident said he would get back to the manager in due course with a date but failed to do so, although continued to chase an answer with regard to the previous rent compensation. On 17 April 2019 the manager emailed to say its local housing office had confirmed that he had never received rent compensation and that the compensation he had received was for the 2016 disrepair claim. He asked again for a date in order to carry out the necessary work to inspect and resolve the stain.
  13. The resident replied to say that as the landlord now accepted the stain to be new then its previous repairs manager had lied about it, and disputed the housing office’s claim that he had never had compensation saying he had evidence of his ‘rent compensation’ ‘…based on the area of the property that couldn’t be in use because of the leak.’ On 30 April 2019 the manager replied. He said the information he had received from the housing office was that the only compensation paid was for his disrepair claim in 2016. With regard to the resident’s request for an apology from the previous manager, he said his colleague considered he had tried to resolve the repairs issue in a timely manner although they both apologised for the length of time this was taking to resolve. As to whether the stains were new or not, the manager said it would only be when they removed the section of ceiling that they would know if there was a new leak or if it was ‘..old staining just bleeding through…’. He asked again for a date to attend to address the stain.
  14. During May matters failed to progress as the resident had yet to provide a date for the work, questioning instead why compensation was not due as the stains were new. He again asked that the previous manager apologise.
  15. Nevertheless, on 4 June 2019 the resident notified the landlord that he could provide access on 24 June 2019 but did not want the previous manager in attendance. However, owing to the resident and landlord’s availability not coinciding a visit could not be arranged until September 2019.
  16. As a result, the area manager now dealing with the case visited the resident on 12 September 2019 and inspected the stains. But the visit did not reassure the resident and on 19 September 2019 he emailed the manager to ask him to confirm if he was saying the stains were new or not and that he suspected the manager did not want to say they were new because he did not want to pay compensation. Meanwhile, on16 September 2019 the manager raised a works order for the inspection, treatment and making good of the ceiling stains. On 20 September 2019 the manager replied to say he was not ignoring the resident’s emails, that a different manager would now take forward the work and be his point of contact, and that only when they had removed the affected ceiling would they have a better idea as to whether it was a new stain or an old stain bleeding through the previously painted ceiling.
  17. Stage 1 complaint: On 26 September 2019 the resident submitted a formal complaint to the landlord, questioning its earlier diagnosis that the new stains were the result of the old leak. Meanwhile, the landlord had arranged for contractors to visit on 18 October 2019 to inspect and carry out remedial works to the ceiling. The resident, however, was on holiday at the time, was unaware of the appointment and so it was missed.
  18. Stage 1 response: On 18 November 2019 the area manager replied, providing the resident with an update on repair work. He said although the roof defect which had caused the leak to the bedroom and living room had been repaired, he had noted during his 12 September 2019 the stains on the bedroom ceiling. For this he said contractors had been booked for 10 December 2019 to remove a section of the stained ceiling, check for mould/moisture and any new damage and if none was found would make good and redecorate. He asked the resident to confirm this date was convenient and that upon completion of the repair work the case would be closed. He said that he was partly upholding the resident’s complaint (although did not say why) and said if the resident was dissatisfied with the outcome he could request a review.
  19. There then followed an exchange of emails in which the resident maintained the case should remain open until he was compensated for the further leak and received an apology from the manager who originally said the leak was old and not new. To which the manager insisted he was unable to reply more substantively until the investigation works had been carried out, pressing the resident to confirm the proposed date for this and directing him to the information previously given as to how to escalate his complaint.
  20. The resident did not do so, but contacted his local councillor who raised his complaint further with the landlord. The landlord replied on 3 December 2019, relaying the background of the case since its manager’s visit on 12 September 2019 and the proposed appointment for 10 December 2019 that the resident had failed to confirm. It said that its manager had sought to provide the resident with answers to his questions but without allowing access for the proposed exploratory work it could not respond further. [Note: The 10 December 2019 appointment did not ultimately go ahead as the resident did not provide access.]
  21. Stage 2 complaint: On 30 January 2020 the resident says he requested escalation of his complaint for a formal review by the landlord, and chased this on 7 February 2020. The landlord, however, says the first it knew of the escalation request was when it was contacted by this Service on the resident’s behalf.
  22. Stage 2 response: On 26 March 2020 the landlord wrote to the resident with the results of its formal review of his complaint.  It said that the ceiling had been previously replastered following the 2016 leak and that it had made efforts to establish if the new staining was as a result of a new leak or residual water from the old 2016 leak collecting in the void between the roof and ceiling. [Note: No mention was made of the 2018 leak.] The landlord said that it concluded its Stage 1 complaint with a clear explanation of the work it was proposing in order to investigate the suggestion of mould and make good the ceiling.
  23. Despite this, it said the resident had become unnecessarily confrontational, and had failed to confirm suitable appointment times or permit it access to carry out the work. The landlord said the roof repairs had been completed and it was satisfied there were no existing leaks. It explained that it was necessary to investigate if there was any water, moisture or mould in the void as to attend to the stain without checking this could only be a ‘temporary fix’. It therefore did not uphold that aspect of the complaint.
  24. As to its handling of the resident’s request for compensation the landlord said the resident was already aware that the complaints process was not the place to make a disrepair claim, that he was aware of how to make a compensation claim for disrepair and should follow it. The landlord said if he disagreed with its legal team’s decision on his disrepair claim he could pursue it further. In the meantime, it encouraged the resident to allow it to carry out its investigation of the ceiling as that would indicate what had caused the ceiling damage and this would inform any subsequent disrepair claim/compensation request. It said it was through a disrepair claim/court action, not the complaints process, that such a matter could be rightly determined.
  25. Finally, with regard to any failure to escalate his complaint the landlord said the resident had not made such a request in response to its Stage 1 response, but had instead referred the matter to this Service, and it was this Service’s referral that had alerted it to his wish for escalation. It therefore did not uphold his complaint on this point.

Assessment and findings

  1. First and foremost, any claim for disrepair or property damage would ultimately be for the courts to determine if the resident was unhappy with the landlord’s and/or its insurer’s decision. The landlord was therefore right to tell the resident that it was for its insurers and ultimately the court to determine the resident’s disrepair claim if he disagreed with the decision regarding damage to his possessions.
  2. But the issue of the stain and whether it was old or new and warranted further investigation was for the landlord to action in the first instance. It was its finding of the stains to be old and the result of the 2016 leak about which the resident was raising a legitimate concern (as this did not correlate for him with the fact that the ceiling had been replastered in the interim) and so it was appropriate that the landlord investigate that concern; which it attempted to do.
  3. Indeed between January – March 2019 the landlord took appropriate steps to try to arrange an inspection of the ceiling, but was unable to do so as a result of the resident’s prior study commitments. When in March 2019 the resident raised concerns about the potential for mould in the ceiling cavity and the potential impact of this on his health, it would appear the landlord redoubled its efforts to arrange the inspection. This was an appropriate response by the landlord at this point. However, it would appear that by this stage the resident had become preoccupied with the issue of compensation over the landlord’s attempts to investigate the possibility of mould or a further leak. The Ombudsman does not therefore consider the time taken at this stage to have been the result of a failure on the part of the landlord to try and resolve the substantive issue of the ceiling stains.
  4. Central to this preoccupation appears to have been his confusion surrounding what he referred to as his ‘rent compensation’ in 2016 and what he took to be an inconsistency in having been compensated for the 2016 leak and not the 2018 one. In all likelihood, in referring to rent compensation the resident might have been referring to a rent abatement for room(s) in his property being out of use during the 2016 leak. While it is standard practice for landlords to calculate an element of compensation on this basis, all the landlord has been able to confirm is that the resident did not previously receive a rent refund. It is partly this mismatch between what the parties consider was paid in compensation previously that appears to have stoked the resident’s perception of unfair treatment with respect to his later 2018 claim. As the Ombudsman sees it, that confusion was unfortunate as it undermined the resident’s confidence in the landlord’s consideration of his claim. But in saying that, there is no evidence that the resident’s claim for compensation for loss or damages as a result of the later leak was incorrectly handled or inadequately considered by the landlord.
  5. Moving on, while by June 2019 the resident appears to have refocused on the issue of the stain as opposed to compensation and re-engaged with the landlord for a convenient date, the fact that this did not happen until September 2019 was the fault of neither party but simply the result of their respective availability. When matters stalled once more following the manager’s preliminary visit in September 2019, this was again not the result of inaction on the part of the landlord but the result of the resident having become refocused on the issue of compensation over moving forward with the inspection. The Ombudsman notes that during this time the resident both failed to agree to a convenient date and failed to permit access.
  6. By now the resident had also formally complained to the landlord about its handling of the matter, in particular its original diagnosis of the stains as being ‘historical’ and without reference to the more recently reported 2018 leak. Whether or not there were actually two leaks, or whether what the resident experienced in 2018 a continuation of the earlier leak is not clear from the evidence and nor is it for the Ombudsman to determine. But the Ombudsman notes the resident’s understandable frustration at the landlord having initially failed to acknowledge in its original diagnosis the fact of the replastering following the 2016 leak. And his increasing dissatisfaction with the compensation decision.
  7. The landlord’s response reasonably explained that in order to review its original diagnosis it would need to investigate the ceiling cavity and detailed what it had done and was doing in order to try and do this. While it was appropriate for the landlord to be focused at this point on resolving its diagnosis and repairing the ceiling stain, in light of the resident’s prevailing concerns around compensation it ought also to have taken the opportunity to draw a line under matters by addressing all outstanding issues at this point.
  8. The Ombudsman considers it would have been helpful if the landlord had fully explained the distinction between the 2016 and 2018 cases, the respective compensation decisions, and the fact that it is not a leak in itself which necessarily warrants compensation, but the impact of a leak on the resident.  Furthermore, it would have been appropriate in its initial complaint response, in light of the resident’s clear dissatisfaction around compensation and the landlord’s earlier apologies for the time being taken to resolve matters, for the landlord to have taken a wider look at the inconvenience caused to the resident by the fact of the recurring leak or stain in 2018 and the time taken to resolve this.
  9. Moving on, the resident has complained of the landlord’s delayed final complaint response. However, the Ombudsman has seen no evidence that he directly requested an escalation but instead referred his complaint to his local councillor and then this Service, albeit prematurely. The resident was entitled to refer his complaint as he did, but this was contrary to the advice the landlord gave him as to how to seek a review directly, and in taking the route he did inevitably delayed him receiving the landlord’s final complaint response. Once his complaint was redirected to the landlord by this Service there is no evidence its final response was unduly delayed.
  10. The Ombudsman’s review of the final response considers it a fair reflection of the repeated attempts by the landlord post-January 2019 to get the ceiling inspected, stains investigated and appropriate action taken to resolve this. The Ombudsman agrees that the fact that this had not yet happened was not the result of inaction or delay on the part of the landlord. However, a fundamental aspect of the resident’s complaint had centred on compensation and as the Ombudsman sees it, this ought to have been more comprehensively addressed in the final complaint response.
  11. While the landlord had an appropriately separate procedure for disrepair claims, its complaints process provided it with an opportunity to consider redress for any stress or inconvenience experienced by the resident as a result of the recurrence of the leak/stain in 2018. There is no evidence that the landlord considered this aspect of the complaint in its final response and its failure to do so will have undoubtedly contributed to the resident’s sense of grievance.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was:

i.                     no maladministration by the landlord in respect of its response to the resident’s report of a leak in 2018;

ii.                   no maladministration by the landlord in respect of its response to the resident’s claim for compensation; and

iii.                 service failure by the landlord in respect of its response to the associated complaint.

Reasons

  1. The evidence indicates the landlord took appropriate action in 2018 to address an issue with the flat roof which was causing water ingress to the resident’s property. It would appear that the scale of the work involved meant it took longer to complete than a standard repair, but that was not the result of undue delay on its part.
  2. The evidence indicates the landlord sought necessary evidence in its consideration of the resident’s disrepair claim and properly considered the resident’s evidence and that of its officer in reaching its decision.
  3. In responding to the resident’s formal complaint, the landlord failed fully to explain its position with regard to compensation or to consider, aside from the disrepair claim, whether compensation might be due.

 

 

Order

  1. The Ombudsman orders the landlord to pay the resident £100 compensation for its failure to respond fully to his complaint regarding compensation.