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Peabody South East Limited (201911503)

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REPORT

COMPLAINT 201911503

Peabody South East Limited

20 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

  1. The complaint concerns:
    1. The landlord’s handling of the resident’s reports of damp and cold in his home.
    2. The landlord’s complaints handling.

Background and summary of events

  1. The resident has a shared-ownership lease with the landlord. The property is a new build, and is covered by a new build structural warranty. The resident has an underlease with the landlord, who holds a superior lease with the freeholder. The superior lease was not provided for this investigation.
  2. The resident has explained to this Service that he initially reported “wet/damp/rotting/rusting” in his downstairs toilet (WC) to the landlord during the initial defects (snagging) period in 2015 and 2016.
  3. On 31 August 2018 a surveyor attended the property to investigate the resident’s reports that the WC felt damp and cold. The surveyor found:

“WC would seem to be built as per the drawings …Insulation in place… moisture meter, revealed some slightly high readings to the bottom left corner … skirtings dry and floor dry. Visually…no signs of leaks and was hand dry within this areas lagging … open an inspection hatch … again nothing was seen...beam and plank flooring …services have been put through the slab the holes have not been made airtight… noted that there seemed to be missing telescopic air vents to this elevation and the return elevation… possibility that moisture from the sub-floor is entering the void within the boxed area in this location and is condensating … causing this mild damp at low level. I requested that the contractor try his best to fill these holes from the access that was available. The issue of the room being cold is primarily due to not enough heat being used, as your aware the downstairs WC heating is supplied by electric heated towel and not via the wet heating system.”

  1. There is no evidence of further reports from the resident until 23 October 2019, when he asked the landlord for “a reference number to seek compensation for the damp, rot, rust” in his WC (it is not entirely clear what he was referring to in this request). He explained that “the issued still remain[ed] unresolved…as [he was] clearly still experiencing cold/damp/wet/rust…especially in the winter months”. The landlord confirmed on 6 November that it would not offer compensation. It said its surveyor had said in 2018 that no further works were required. It provided him with the surveyor’s report.
  2. The resident contacted this Service on 3 January 2020 and explained his complaint. He said that the warranty providers would only accept a claim if the issue with the property was “structural”. He wanted the landlord to confirm whether the issue was structural, or carry out further investigations to make the correct determination. We advised him to make his landlord aware of his concerns, and sent him a summary of what he had told us.
  3. On 6 January 2020 the resident forwarded the landlord the summary we had sent him, and asked it to raise his concerns as a formal complaint. The landlord asked him for the warranty’s definition of what was “structural in relation to the issue”. On 12 January 2020 the resident sent the landlord his warranty policy wording.
  4. On 20 January 2020 the landlord told the resident that it was unable to answer his question. It said it was possible for the damp to be caused by a structural issue, but would depend on the nature of the damp, and where the extra moisture came from. It said there could be numerous causes. It said that if the issue related to the same one its surveyor investigated in 2018, then it was not caused by a defect. It recommended that he seek an independent surveyor for further investigations if he disagreed with the landlord’s position, and that “If this issue is not covered by your … warranty you also have the option to claim off your building insurance”. The resident responded on the same day, and said he would advise his warranty providers of the landlord’s response.
  5. The resident rang this Service on 11 May 2020 and advised that he was dissatisfied with the landlord’s response. We contacted the landlord on 28 May and asked it to escalate the resident’s complaint. We explained that his concerns related to the ongoing problems in his WC: cold, mouldy tiles, rotten wood, rusty radiator. We contacted it again on 30 July, and 17 November asking it to respond following the resident’s concerns that it had still not responded.
  6. The landlord issued its stage two complaint response on 5 February 2021. It said that, although it had responded to the resident’s stage one complaint on 20 January 2020, its response was not a formal one. It acknowledged that it had received correspondence from this Service on 28 May 2020, but due to an oversight on its behalf had failed to respond and escalate his complaint. It said it could not find records of contact from this Service in July 2020, but responded to our correspondence in November 2020. It said that following the resident’s complaint it had introduced a new monitoring system to ensure it received all contact from this Service. It apologised, and offered the resident £350 compensation. This comprised of £250 for poor complaint handing, and £100 in time and trouble pursuing the matter.
  7. The landlord said it had not received confirmation from the resident whether he had sought an independent surveyor as it had previously advised. It said it could not respond further until knowing the outcome of the survey. It concluded by explaining how the resident could refer his complaint to this Service if he remained dissatisfied.

Assessment and findings

Handling of reports of damp and cold

  1. The resident’s lease agreement states that he has the normal responsibilities of a full homeowner. The resident is “obliged to pay 100% of the outgoings relating to the property and to keep the property in good and substantial repair and condition”. The landlord is responsible for keeping communal areas in good and substantial repair. Its leaseholder website states that it is responsible for repairs to:

1. The structure of the building

  • roof repairs
  • rainwater pipes and gutters
  • external drains, soil pipes and sewers
  • damp-proofing works
  • brickwork
  • floor joists
  1. No information about the superior lease has been provided which might indicate the landlord is not responsible for the structure of the property. Nor did the landlord give any such indication in its complaint responses to the resident.
  2. New build warranties usually cover a property against structural faults. They do not usually provide cover for matters or repairs caused by a owner or resident.
  3. Damp, cold, and mould (as reported in the resident’s escalated complaint), generally, are most commonly attributable to two primary causes: structural and/or repair problems, or resident ‘lifestyle’, such as not heating the property properly, not using ventilation systems, or drying clothes on radiators. A freeholder or landlord is usually responsible for addressing and resolving damp and mould problems resulting from structural or repair problems. Residents are generally responsible for such problems resulting from their lifestyle.
  4. The landlord’s inspection in August 2018 found no single source of the problems the resident was reporting, but suggested a number of possible causes.
  5. The resident reported to the landlord that the problems of damp and cold were still occurring in October 2019. Instead of reinspecting the property in light of the new report, it relied on its 2018 inspection. Given that over a year had passed, that the inspection had been inconclusive, and that, regardless of any warranty, a freeholder/landlord is ultimately responsible for structural issues causing damp and related problems, the landlord’s decision was not reasonable or appropriate. The reasonable thing for the landlord to have done in the circumstances, was to either inspect the property itself, or arrange an inspection (if the superior lease states that the freeholder holds higher responsibility), in order to satisfy itself and the resident, as to the presence of the problem, and its causes, whether they be lifestyle, or structural/repair issues. Logically, only once that was done could the landlord and resident know whether a warranty or building insurance claim was relevant.
  6. For the same reasons, it was unreasonable for the landlord to advise the resident to commission his own inspection, and to rely on him not doing so (in its February 2021 complaint response) as grounds to take no further action. As above, it was for the landlord to satisfy itself where the problems lay, not for the resident to prove it.
  7. The specific interaction between the landlord’s responsibilities and the new build warranty is not apparent from the evidence provided. Nonetheless, no evidence has been provided for this investigation which indicates that the landlord’s responsibilities for the structure of the property were superseded by the presence a new build warranty. Accordingly, the landlord’s failure to take reasonable action in response to the resident’s reports in 2019 and onwards, was a serious failing.

Complaint handling

  1. The landlord’s compensation policy sets out that in circumstances of poor complaint handling it can offer the resident up to £100 compensation. It can also offer up to £400 compensation in recognition of the resident’s time and trouble.
  2. The landlord acknowledged that it had failed to provide the resident a formal stage one complaint response in January 2020, and had failed to escalate his complaint following involvement from this Service. The Ombudsman’s dispute resolution principles are: be fair, put things right, and learn from outcomes. The landlord demonstrated that it followed these principles as it acknowledged its failings, set out how it would ensure not to repeat similar mistakes, and offered the resident £350 compensation.
  3. The offer of compensation was in line with the landlord’s own compensation policy as explained above. In the circumstances of this complaint, and the landlord’s failure to escalate and formally respond to the resident, it was reasonable for it to have compensated a higher amount for its poor complaint handling. It recognised that this was its more significant failing.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in landlord’s handling of the resident’s reports of damp and cold.
  2. In accordance with paragraph 55 (b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to investigation for its complaint handling which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Reasons

  1. The landlord failed to inspect the resident’s property after he repeated a continuation of damp and cold problems. Its action in recommending the resident commission his own inspection was not reasonable.
  2. The landlord acknowledged its failings in terms of its complaint handling, apologised for them, demonstrated its learning, and made a reasonable offer of compensation.

Orders and recommendations

  1. In light of its poor handling of the resident’s reports of damp and cold, the landlord is ordered to:
    1. Pay the resident £200. This payment must be made within four weeks of this report, and this Service must be updated when it is complete.
    2. Inspect, or arrange the inspection of the relevant parts of the resident’s home to confirm the presence of the problems being reported, and clarify their nature, i.e. either structural/repair related, or lifestyle related. A report should be prepared setting out the inspection’s findings and any recommendations in regard to the warranty, and the responsibilities of the resident, landlord, and, if appropriate, freeholder. In light of the resident’s reports that the problems are more pronounced at certain times of the year, the landlord should arrange the inspection at a time the resident deems most appropriate, but no later than the end of December 2021. This order is contingent on the resident’s cooperation with the landlord in arranging the inspection, and may also be amended, after discussion with the resident and this Service, in light of any prevailing covid restrictions at the time.