Peabody Trust (202101023)

REPORT

COMPLAINT 202101023

Peabody Trust

31 August 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

This complaint relates to:
1. the landlord’s handling of the resident’s reports of a water outage.
2. the actions of the managing agent.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 25(a) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.

The resident’s complaint about the actions of the managing agent

Paragraph 25(a) of the Scheme states that the Ombudsman can only investigate complaints by a person who is or has been in a landlord/tenant relationship with a member landlord. This includes people who have a lease, tenancy, licence to occupy, service agreement, or other arrangement to occupy premises owned or managed by a member can make complaints to the Ombudsman about members.
The Housing Ombudsman cannot investigate matters where the complainant does not have a landlord/tenant relationship with a landlord who is a member of our Scheme. As the resident is not a tenant of the managing agent of his building, it would not be within our jurisdiction to investigate the complaint he has made against it. However, we can consider the complaint raised to the landlord and how it liaised and communicated with the managing agent to resolve this matter. The resident would be advised to contact the Property Ombudsman Service if he wishes to pursue his complaint against the managing agent.

Background and summary of events

Background

The resident is a shared ownership leaseholder of a flat within a block of flats. The landlord is the head leaseholder for the property but is not the freeholder of the building.
The landlord operates a two stage complaints policy. The policy defines a complaint as ‘an expression of dissatisfaction, however made, about the actions or lack of action by the organisation, its own staff, or those acting on its behalf…’. It also states that ‘complaints about a service provided by External Managing Agents (EMA) will be considered dependent upon the contractual relationship…’.
The landlord’s repairs policy in relation to water ingress (leaks) states that it is responsible for communal repairs.
The landlord’s compensation policy for repairs related compensation is not applicable to shared owners but it can consider general compensation for time, trouble and inconvenience.

Summary of events

On 4 January 2021, there was a water outage that affected the resident’s property and several others.
The resident and the managing agent exchanged several emails on 5 January 2021. The resident asked for updates in relation to the cause of the water outage and when the water supply would be restored. He also made a formal complaint on this date and raised the following points:
1. He had not received any updates regarding the water outage despite being promised a call back three times from the out of hours team
2. He wanted to know what emergency procedures were in place
3. The managing agent should consider its ‘poor handling, communication and inability to protect residents during this water emergency’
4. He had tried to access the resident’s portal ‘about 10 times’. This issue was supposed to have been resolved the year before
5. The residents were ‘bearing the brunt’ of the lack of a working relationship between the landlord and the managing agent
The managing agent responded to the resident on the same day and stated that it was aware of the temporary water disruption, and it was dealing with it. It apologised for the inconvenience.
The managing agent provided a stage one response to the resident’s formal complaint which was undated. In its response it mentioned that the water was restored at approximately 8.30pm on 5 January 2021. It also mentioned the following:
1. It was regularly liaising with the landlord ‘if and when required’ and the landlord had been updated
2. The portal had been updated and notices placed on the five affected buildings
3. It is the landlord’s responsibility to set up residents on the portal and it has supplied the landlord with details on how to do this ‘on several occasions’
4. ‘Contingency plans had been made in the event that the water was not restored within 24 hours. Once we knew that the disruption was extending beyond 24 hours, bulk water supplies were delivered to the development and circulated accordingly. Where we were aware of any vulnerable residents; priority was given to those residents.’
The resident remained unhappy with the managing agent’s response and requested his complaint be escalated to stage two on 12 January 2021. He stated that his main issues were ‘poor communication, lack of appropriate contingency plans and lack of clean water being supplied, especially the fact that we’re in a National Lockdown and a Global Pandemic, with a clear stay at home warning from the government’. The resident explained that the loss of water was reported in a community group by a neighbour at around 4.30pm on 4 January 2021. This was then reported to the landlord’s emergency line and the managing agent’s out of hours number. He said he did not receive an update on the situation until 8.13am on 5 January 2021 when he requested this information form the on-site building manager. He stated he was told that there had been a water leak (the source of which was unknown) into the fuse board which serves five buildings. He was told the leak had been stemmed and the fuse board had to dry out before the water pumps could be turned on. He mentioned that he was grateful for the update, but this should have been provided to all residents proactively and not only following a request.
The resident wanted to know whose responsibility it was to update the residents knowing they did not have access to the portal. He stated that the landlord had had years to resolve the resident’s lack of access to the portal but this had not yet been achieved. He expressed that being asked to cascade updates to other residents was not an acceptable way of communicating to over 80 households. The resident also mentioned that residents should have been notified clean water was not going to be made available within a certain timeframe so that they could have made their own arrangements. He said he first noticed water outside of his flat on the morning of 6 January 2021, but he was not sure when it arrived.
The landlord has supplied the Service with a copy of its internal memo dated 13 January 2021, which stated it has received a copy of the resident’s complaint to the managing agent and requested the shared-ownership resident’s lack of access to the portal be ‘looked into.
The managing agent wrote to the resident on 18 January 2021, acknowledging his request to escalate his complaint to stage two. It requested the resident to raise his complaint ‘through the correct reporting and escalation process’ which is directly with his landlord.
The landlord wrote to the resident on 5 February 2021. It sympathised that residents were left without water for just over 24 hours due to loss of power, and explained that it had held a meeting with the managing agent who confirmed the chain of events that occurred between 4 and 5 January 2021 in relation to the cause of the water outage and the actions that were taken to rectify the issue. It also stated the following:
1. It had been reassured by the managing agent that as soon as they realised the water may be out for more than 24 hours, bottled water was left outside each flat by 6.30pm on 5 January 2021
2. It had been reassured by the managing agent that the water supply was restored by 9.15pm on 5 January 2021
3. It had been advised that shared ownership leaseholders ‘are unable to register themselves’ on the portal and had been working with the managing agent to work out a more efficient way of doing this.
The resident responded to the landlord on 11 February 2021 to express his disappointment that the landlord had not ‘pushed’ the managing agent to answer his concerns, especially around the delivery of bottled water. He expressed his frustration with the lack of a ‘clear route’ to report or chase repairs which he felt was due to the landlord’s ‘inability to put a good enough process in place’, and highlighted the following outstanding issues:
1. The resident’s accounts in relation to the delivery of bottled water differed to that of the managing agents. Residents were told that water would be delivered earlier in the day and were not informed once it had been delivered
2. The fuse board had blown on 4 January 2021, but no explanation had been provided as to why it took a whole day to be looked at as it was an emergency
On 18 February 2021, the landlord acknowledged the resident’s stage two escalation and stated that it would provide a response by 18 March 2021. It requested an extension to provide its response on two occasions.
The landlord provided its stage two response on 29 March 2021. It apologised to the resident for his dissatisfaction with the way the managing agent handled the water outage. It stated that its contract with the managing agent does not mention that, in the event of a water outage, residents should be provided with bottled water within a certain timeframe. It explained that the managing agent agrees that bottled water was provided to residents 24 hours after the issue was reported and, whilst the landlord agreed this could have been provided sooner, it did not have the ability to ‘penalise’ the managing agent for this due to the absence of any contractual agreement. The landlord mentioned that the three different issues that caused the water outage were fixed within 29 hours of being reported and it felt that this timeframe was ‘not unreasonable in the circumstances’ as residents were not left ‘in difficulty’ for a very long time.
The landlord also explained that the resident highlighting his frustration about the lack of communication during the water outage led it to arrange a meeting to discuss ways to improve this. It stated that the managing agent’s contract was set up by the freeholder and the landlord holds a head lease for residents. It is the managing agent’s responsibility to ‘interact and report’ to the landlord and the landlord ‘acts as a conduit to requests’. It acknowledged that the multi-layered process is not ideal but state that it had no control over changing the terms of the agreement. The landlord explained that there was now a process in place to catch issues that may arise during the day, but not at nights or weekends and admitted there was a gap in the process. The landlord informed the resident that it had arranged a further meeting with the managing agent in April to discuss ways to improve the interaction with residents and it would update the resident on the outcome of this meeting. The landlord stated that it hoped the resident would allow it to try and ‘improve things’ with the managing agent but explained that he could complain to the freeholder or the First Tier Tribunal if he remained unhappy.
The resident contacted this Service on 9 April 2021 as he was dissatisfied that the landlord had not addressed his concerns or proved that it did enough during the water outage to show duty of care. He noted that he appreciated the apologies offered and solutions that have been proposed for the future, but he still had unanswered questions.

Assessment and findings

During the course of this investigation, the Service tried to obtain more information about the contractual agreement between the landlord and the managing agent, in relation to the responsibilities the landlord has in the event of a water outage. The landlord has been unable to provide this evidence or confirm the details of any agreements that may be in place. As such, this assessment is based on what is considered to be reasonable in these circumstances.
The resident has clearly detailed the distress he experienced during the water outage. The landlord had an obligation under the landlord/tenant relationship to ensure that its residents were kept updated during this emergency. The landlord has not provided any information to evidence that it took the appropriate steps to keep residents updated on the progress of the repairs. Although the landlord was not responsible for carrying out the necessary repairs, it had a responsibility to have oversight of these and provide feedback to its residents.
There is no evidence to suggest that the landlord took necessary steps to satisfy itself that the residents were kept informed, either through itself or the managing agent. The resident said that he had raised the issue of not having access to the portal prior to the emergency but this was not rectified. The landlord was aware of this lack of access but has not provided any evidence to show that it took the necessary steps to update its residents in this emergency, given the lack of access.
It was appropriate for the landlord to offer the resident its sympathies as this demonstrates that it understood the distress and inconvenience to the resident. It was also appropriate for the landlord to propose solutions for the future as it is a principle of good complaint handling for a landlord to learn from the outcomes and seek to prevent further service failures occurring. The landlord has provided evidence to show that it kept the resident updated with the outcome of its meeting with the managing agent, but to date, neither the resident nor the landlord has confirmed if this issue has been resolved.
The landlord has acknowledged that the bottled water could have been delivered sooner, however the landlord mentions that it has limitations on what it can do in these circumstances. The landlord has not been able to confirm what was within its control during this emergency, or evidence that it took adequate action where it was able to. Ultimately, the landlord’s approach to this emergency was, in the Ombudsman’s opinion, passive which exacerbated the distress and inconvenience to residents. As the landlord does have responsibilities for the wellbeing of its residents, who are in a contractual relationship with it, not the freeholder or managing agent, it is appropriate for it to take the necessary steps to ensure its residents are not negatively impacted by any gaps in policy or contractual agreements which may lead to its inaction in the event of an emergency.
In summary, there has been service failure by the landlord in relation to its handling of the report of a water outage. The landlord did not communicate effectively with its residents during the outage, despite knowing that they did not have access to the portal which was being updated by the managing agent. Whilst there were limited steps it could have taken, it would have been responsible for the landlord, and in line with the landlord/tenant relationship to have liaised with the managing agent and been proactive during this emergency. The landlord has not been able to demonstrate that it did enough to keep the resident updated or to ensure that it had adequate policies and procedures in place which details its obligations in an emergency.

Determination (decision)

In accordance with Paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of reports of a water outage.
In accordance with Paragraph 25(a) of the Housing Ombudsman Scheme, the resident’s complaint about the actions of the managing agent is outside jurisdiction.

Reasons

The resident had to ask for updates several times during the water outage which caused him distress and inconvenience. The landlord was aware of the resident’s inability to access the portal, but it did not act proactively by taking actions to update and reassure the resident during the emergency. The landlord has also acknowledged that the emergency could have been handled better, and that its contractual limitations with the managing agent caused distress to the resident.

Orders and recommendations

Order

The landlord is to pay the resident £110 in recognition for the distress and inconvenience experienced by resident due to its inability to keep him regularly updated during the water outage.

Recommendations

If it has not already done so, the landlord should ensure that its shared ownership residents have access to the portal.
It is recommended that the landlord should review its policies to ensure that its obligations and responsibilities to its residents are clear in the event of an emergency where a third party may be involved.
It is recommended that the landlord writes to the other residents that were affected by the water outage to update them on its discussions with the managing agent, confirm its roles and responsibilities, and inform residents on who to contact in the event of an emergency or urgent repair.