Basildon Borough Council (202115032)

REPORT

COMPLAINT 202115032

Basildon Borough Council

29 June 2023

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

The complaint is about:
1. A dispute over the responsibility for repairs to resolve water ingress at the resident’s property.
2. How the landlord managed the resident’s associated complaint.

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.
Paragraph (42g) of the Housing Ombudsman Scheme states we will not consider complaints which, in our opinion, concern matters where we consider it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, other tribunal or procedure.
After carefully considering all the evidence, in accordance with paragraph (42g) of the Housing Ombudsman Scheme, the following complaint is outside of the Ombudsman’s jurisdiction.
1. A dispute over the responsibility for repairs to resolve water ingress at the property.
In the resident’s complaint, a dispute has arisen over the interpretation of the lease and which party to the lease is responsible for the completion of certain repairs at the property. According to the information provided to the investigation the water ingress is thought to be caused by raised external paving which had compromised the damp proof course, causing water ingress below the patio door. Proposed solutions include lowering the courtyard paving and step to the patio door which may require the patio door to be removed as part of the repair.
The managing agent said that it is not responsible for the repair as under the fourth schedule of the lease, the courtyard, windows, doors, and frames are demised to the resident. This would make the resident responsible for removing the patio door and lowering the courtyard step.
The resident’s view is that the managing agent is responsible for the repair. This is because under seventh schedule of the lease, paragraph 2 the managing agent is stated as having responsibility for the structure of the building and this included the main walls, foundations, roofs, floor slabs and structural concrete floors.
The landlord’s view is that it does not have responsibility for the repair. Its legal team had reviewed the lease and found that the repair did fall under the responsibility of the resident unless the repair was a result of structural damage.
As the main element of this complaint relates to a dispute over the responsibilities as set out in the lease agreement, in accordance with paragraph(42 g) of the Housing Ombudsman Scheme, this complaint is outside of the Ombudsman’s jurisdiction as the appropriate bodies that can make a legally binding decision on the responsibilities on the parties for the associated repairs would be either the First Tier Tribunal (FTT) or the Courts. Therefore, it is recommended that resident obtains their own legal advice on pursuing this matter through the appropriate process.

Background and summary of events

The resident is a leaseholder for a one bedroom property in a building owned by the landlord who is the freeholder. Under the terms of the lease, the building is managed by a ‘manager’ who is referred to in this report as the ‘managing agent’ and who has responsibility for the building’s general management and maintenance.

The lease

Under the terms of the lease the managing agent is responsible for maintenance, repair, renewal, and insurance of the amenity lands.
1. The amenity lands comprise of the main structures of all the buildings and common parts of the estate.
2. In the second schedule the amenity lands are described as including the main walls and floor slabs.
3. In the seventh schedule the managing agent is required to keep the premises properly supported and protected by the main structure. The lease says that the managing agent will keep the resident as the leaseholder protected from costs and expenses related to it keeping the main structure repaired and maintained.
The premises demised in the lease to the resident consists of internal walls, floor tiling and screed, windows, fames, and ceilings. Those parts of the main structure that surround and support the main flat are reserved to the managing agent and the freeholder. In the fifth schedule of the lease the leaseholder is obligated to keep the property in a good and substantial repair condition.

Complaints and Comments Policy

The landlord has a three-stage complaint process. Its complaints policy says that it aims to respond to complaints within ten working days on receipt of a complaint. Where this is not achievable due to the complexity of the complaint, the landlord will inform the resident of any delays and an expected response time.

Summary of events

In 2020 the resident reported his property had water damage on the ceiling from the balcony above and water ingress from under the property’s patio doors. The resident was seeking to have repairs completed to stop the ingress and make good any water damage so that he could rent out his property.
On 12 October 2020, the managing agent emailed the resident to update him on an inspection it had undertook. It had found that the paving laid right up to the step of the door frame meant that it was vulnerable to water driving into the flat. A solution to resolve the water ingress was to lower the external paving to prevent the water coming in below the door frame.
On 3 December 2020, the resident emailed the managing agent because his insurance underwriter had advised his claim could not be resolved as the repair was the management company’s responsibility. The resident asked for an explanation from the managing agent because he wanted to have the matter resolved so that he could rent out the property.
The managing agent responded on the same date to advise that due to the gap at the bottom of the patio doors the resident needed to make necessary repairs before any remedial works take place. The suggested course of action was the replacement of the patio door which the managing agent told the resident that he was responsible for maintaining and replacing the windows and doors, which it said formed part of the demised premises.
On 5 December 2020, the managing agent emailed the resident with sections from schedule 1 of the lease. It said that as windows were part of the property the resident had the obligation to keep them in a good and substantial repair. The managing agent therefore did not have any further obligation ‘over and above external decoration.’
On 11 December 2020, the resident reported to the landlord that the managing agent had not made contact regarding his claim made for damage caused by water that had entered the property. The resident said the loss adjuster was awaiting a response from the freeholder to approve the repair. The resident had been told the patio door needed to be moved to undertake the repair and he wanted to clarify who was responsible to do this as per the lease agreement.
On 14 December 2020, the resident notified the landlord of the managing agent ’s position that he was responsible for the repair. The resident acknowledged his lease said he was responsible for keeping the doors and windows in good repair, but the ingress of water was not caused by the patio door and seemed to be coming from underneath, through a gap above the floor for which he did not believe he was responsible. The resident suggested that there could be a failure of the waterproof membrane / bad workmanship or structural movement which could be assumed were inherent defects and asked the landlord to advise the best course of action.
The landlord replied to the same day to advise that the resident needed to discuss the matter with the managing agent because they were responsible for the building’s maintenance and would arrange for inspections and repairs.
On 17 December 2020, the resident received an email from the landlord. It said that the managing agent was responsible for dealing with and managing the repair’s resolution. The landlord would not be involved.
On 22 December 2020, the managing agent confirmed to the resident that it believed the water ingress was caused by the raised external paving which had compromised the damp proof course, allowed a bridge, and caused the damp conditions internally. The solution for the repair was that the courtyard paving and step that rose to the patio door needed to be lowered and as the steps slab went underneath the patio door, the door would need to be removed as part of the repair. The managing agent said that it was responsible for the amenity lands excluding any part specifically demised to the tenant and that the courtyard area had been demised to the leaseholder and the resident would therefore be responsible for lowering the paving.
On 8 January 2021, the resident emailed the landlord. It was his view that the paving and step height causing the water ingress was a design fault and since this was an underlying defect it would be the responsibility of the freeholder.
On 13 January 2021, the landlord wrote to the resident. It said:
1. From the lease, the principal communications needed to be with the managing agent.
2. It could not confirm that it was the freeholder for the property and was seeking clarity on this.
On 22 January 2021, the resident asked the landlord to identify within the lease agreement where it said the repair would be his responsibility.
On 26 January 2021, the landlord emailed the resident. It said that it was waiting to find out whether it was the freeholder and would update the resident as soon as it knew. It also said that it had created a formal complaint so that the issue would be monitored and escalated accordingly.
On 9 February 2021, the resident received an email from the managing agent which copied the premises section from schedule 1 of the lease. It highlighted that the window frames, the glass and the door and frames were in its view the responsibility of the leaseholder.
On 19 February 2021, the resident emailed the managing agent discussing the possible causes of the defect which was believed to be related to the failure of the damp proof course due to the building’s design. It was the resident’s view if the issue was caused by the buildings design and original construction then the repair would the responsibility of the building owner. The resident said that the landlord had so far been unable to say whether it was the building’s freeholder and asked what part of the lease was being relied on to make him responsible for repairs to the building. A further update was also provided, the resident had their own contractor look at the issue who had found that at the base of the patio door there was a gap allowing moisture to come through. The resident asked for it to clarify who was responsible for the repair.
On 23 February 2021, the resident emailed the managing agent with his position that he would be progressing with the works to avoid any further delay or financial loss on his part for being unable to rent out the flat. The resident said that he strongly believed the managing agent should have accepted the costs incurred.
On 1 October 2021, after contact with the resident, this Service wrote to the landlord to ask it to provide a formal response to the resident’s complaint about reimbursement for the repair.
On 5 October 2021, the landlord sent its first response to the resident which it said was a stage 2 response. It said:
1. The block was managed by the managing agent and any defects which the resident was not responsible for “should be communicated to the management company.”
2. The managing agent had informed the resident that under schedule 1 of the lease, the doors and windows to the property are the responsibility of the leaseholder.
3. The complaint was not upheld because the managing agent was responsible for managing and maintaining the building.
On 28 October 2021, the resident received advice from the leasehold advisory service which had considered the lease and advised that the seventh schedule of the lease, paragraph 2 read that the “manager” was responsible for the structure of the building which included the main walls foundations and roofs floor slabs and structural concrete floors entrance halls corridors stairways (excluding any part specifically demised to a tenant) external walkways driveways and exterior parts of the building comprising the flats…including the balconies. If the water ingress had come from an area the manager was responsible for then it understood that the managing agent would bear the costs of any damage caused. The resident was advised that this was the advisory service’s interpretation of the lease and only the Courts or Tribunal could make a legally binding decision.
On 1 November 2021, this service wrote to the landlord to escalate the resident’s complaint to stage 3. The reason for this was that the resident was not satisfied that the landlord would not take responsibility for any repairs to the building despite being the freeholder.
On 3 November 2021, the landlord sent a complaints response to the resident to let him know that it would not consider the complaint at stage 3. This was because the resident had not requested a stage 3 escalation within its 10 days response timeframe. It took the opportunity to confirm that the block was managed by the managing agent and to reiterate that under schedule 1 of the lease the doors and windows to the property were the resident’s responsibility.

After the final response letter

The resident has told this service that due to his view that the repair related to the main structure of the building which was the freeholder’s responsibility he had not completed the repair.
On 14 February 2022, the landlord wrote to this Service to provide evidence for this investigation. It said that its legal team had now reviewed the lease and advised that:
1. The managing agent would keep the main structures properly repaired and maintained with the resident indemnified against all costs and expenses in connection of this.
2. If the managing agent was not adequately carrying out its responsibilities it could consider enforcement action under the terms of the lease. However, its legal team had recently reviewed the lease and found that the repair did fall under the responsibility of the resident, unless the repair was a result of structural damage. The landlord understood that the resident had been informed of this by the managing agent.

Assessment and findings

Whilst the dispute over the interpretation of the lease about who has the ultimate responsibility for the repair of water ingress is best placed for another body, the Housing Ombudsman can assess whether the landlord acted reasonably as part of its role as the freeholder of the building in handling the resident’s queries and complaint on this matter.
Between November 2020 and February 2021, the landlord could not say whether it was the freeholder for the building. Whilst this Service has not seen any evidence that confirmed its status as the freeholder, the landlord’s subsequent complaint responses from October 2021 did acknowledge its role as the freeholder. That landlord was unable to identify a building that it owned in a timely manner has implications on how the landlord manages both its stock and its arrangements with its managing agent to ensure that it is compliant in delivering its repairs obligations and general estate management. It is reasonable to expect the landlord to know what property it owns, and the landlord repeatedly failed to answer the resident’s question about whether it was the buildings freeholder, prolonging the resident’s wait for a clear answer.
The Housing Ombudsman’s Spotlight Report on managing agents, which can be found on our website, is about how landlord’s manage relationships with residents when there is a managing agent involved in providing services. A section of the spotlight report focuses on how landlords manage complaints from leaseholders and encourages effective complaint management by communicating clearly with residents and by it ensuring complaints are handled in line with the Ombudsman’s complaint handling code.
The landlord initially advised the resident that the matter would be ‘monitored and escalated’ via its complaints process from 26 January 2021. The landlord failed in its service to provide an update, as no stage 1 complaint response was sent. It was not until this Service wrote to the landlord on behalf of the resident that a complaint response was issued, at stage 2. This is confusing as it is not clear why the complaint was escalated to stage 2 at this point. This stage 2 response sent on 5 October 2021 confirmed its status as the freeholder. The landlord has failed to administer its complaints process appropriately resulting in an excessive delay in providing the resident with the complaint response and an answer to his query. It has failed to keep to its policy commitments of providing a response within 10 days.
In the circumstances outlined throughout the summary of events, the landlord discharged any responsibility for the repair and the complaint about the managing agent’s interpretation of the lease back to the managing agent. This included signposting the resident to make a complaint directly to the managing agent. In both in its pre-complaint correspondence and in its complaint responses the landlord sought to take a position of having no responsibility for the case. The spotlight report says that the practise of signposting back to the managing agent in contexts such as these is inappropriate. The expectation is that the landlord ‘owns the relationship’ with its resident and that it is proactive in pursuing resolutions on the resident’s behalf. Due to this approach, it had failed in its service to the resident.
In its complaint handling, the landlord did not conduct a detailed investigation of the complaint. Its responses repeated the position of the managing agent rather than seeking to assist the resident by obtaining and sharing its own legal advice on the matter. It is not until after the resident brought this case to the Ombudsman and the following request for information from us, that on 14 February 2022 the landlord provided this Service with evidence that its legal team had fully considered its responsibility under the lease. The landlord now stated that after the legal teams review it agreed with the managing agent’s interpretation of the lease. It had also found that it could take enforcement action against the managing agent if they were in breach of the lease. By completing this review, the landlord had identified that it did have a responsibility to ensure the managing agent was adhering to the agreement and therefore its approach during this complaint was not reasonable. Whilst this later review did not change the decision regarding the repair for the resident, the review provided clarity on the landlord’s position and what its responsibilities were. However, as this step was not taken during the complaints process it has also highlighted the failing in how the landlord responded to the resident at the time of it issuing its formal complaint response. In addition, the landlord has not evidenced sending this legal advice directly to the resident as would have been appropriate.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman’s Scheme there was maladministration in how the landlord handled the residents associated complaint.

Reasons

The landlord did not take responsibility for the relationship with the resident by seeking to clarify its own position on the lease through the complaints process and sought to place all responsibility for communicating with the resident about the water ingress repair and associated complaint onto the managing agent. In addition, it did not adhere to its policy commitments for timescales in responding to a complaint by not providing a stage 1 reply within its prescribed timeframe.

Orders and recommendations

It is Ordered that the landlord pays the resident compensation of £300 for the resident’s time and trouble in pursuing the complaint within 4 weeks. This should be paid directly to the resident and evidence of compliance should be provided to the Ombudsman.
It is Ordered that the landlord considers the Spotlight on landlord’s engagement with private freehold and managing agents and completes the self-assessment to consider their position with respect to their engagement with managing agents and/or freeholders. Evidence of compliance can be demonstrated on the completion of the self-assessment which should be provided within 3 months of this Order.