Metropolitan Housing Trust Limited (202005072)

REPORT

COMPLAINT 202005072

Metropolitan Housing Trust Limited

24 November 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

The complaint is about the landlord’s handling of the resident’s reports of a leak, his requests for compensation, and his request to view its compensation policy.

Background and summary of events

There are three joint tenants on an assured shorthold tenancy. One tenant is acting as the sole representative and is referred to in this report as ‘the resident.’
The tenancy agreement stipulates that a tenant may be entitled to compensation if the landlord is late in carrying out a repair. It states that “the rules and details of how this compensation applies are set out in the compensation policy”.
The property is a flat situated in a building with similar properties.
The landlord is a housing association. Its housing management services are provided by a managing agent (the agent). The agent is responsible for maintenance and property management issues, but any complaints are dealt with by the landlord. The landlord is ultimately responsible for the agent’s actions.
On 16 April 2020 (a Thursday) the resident reported to the landlord’s managing agents a potential leak. He explained that he had not been in the property “for a few weeks due to the coronavirus outbreak in London. I returned on Tuesday to check on the flat and found that a piece of plaster from the ceiling above the bath has fallen off. Upon closure inspection, I could see that the fallen plaster was damp, indicating some sort of leak in the flat above. We will not be in the flat for the next few weeks. Please could someone come to the flat in the meantime and repair the issue. He provided photos of the fallen plaster and wall it came from.
In an email dated 1 May 2020 to the managing agent, the resident reported that he still hadn’t received any updates regarding the condition or repair of the bathroom since the damage was reported on 16 April 2020. The resident asserted that he has been forced to stay with family during the lockdown because, in his view, the collapse of the ceiling was due to a lack of structural integrity, and the imminent danger it posed rendered the bathroom unusable and consequently the flat uninhabitable.
The managing agent responded by email on 1 May 2020 advising the resident that they had been informed that same day that the cause of the leak had been stopped. The area of plaster that had fallen would need to dry out for at least two weeks before any repair works could be carried out (to the ceiling), and this would most likely be after the lockdown.
On 11 May the agent updated the resident, saying that “As per my last e-mail we will need to wait for the affected area to dry out before any work can be carried out. During Lockdown your Landlords contractors are only carrying out emergency repairs therefore the plaster works will most likely be done once we are out of lockdown. I will of course notify you of the date once I am aware.”
On 13 May 2020 in an email to the managing agents, the resident requested a response to an earlier request for a reduction in rent equivalent to the period during which he was unable to live in the flat, from the date that the damage was reported until the landlord could confirm to him that the property was once more safe to live in. The resident said that he was considering seeking compensation for delayed repairs and asked for a copy of the compensation policy referred to in his tenancy agreement.
On 14 May 2020 the agent emailed the resident explaining that the landlord’s contractors did not deem the ceiling repairs to be an emergency. These works would be scheduled after the Covid19 lockdown had been lifted. The email continued that, in light of the above, if a request for compensation was made due to the flat being, in the resident’s opinion, uninhabitable, this would not be warranted and would not be accepted. The resident replied on 15 May. He disputed the agent’s explanation that the property was not uninhabitable. He explained that “Without professional assessment, the structural integrity of the ceiling cannot be determined – no-one knows for how long the leak was ongoing, which could have weakened the structure of much more of the ceiling. The fact remains that, as pointed out above, the bathroom is unusable since any use of the bathroom could cause another collapse due to the weak structure. At such a time that the ceiling has been made good and put back to its original condition, we will then be able to move back into the property as the bathroom will be safe and fit for purpose once again.” On 18 May 2020 the agent informed the resident that they had managed to arrange for one of their own contractors to attend the property on 19 May to quote on re-plastering the ceiling.
The resident sent further emails to the agent in May 2020, asking for the compensation policy. In response, the landlord provided a weblink to the landlord’s complaints policy.
The resident emailed the agent on 27 May 2020 reiterating his request for the compensation policy, not the complaints policy it had sent a weblink for.
Following a conversation with the managing agents the resident sent a further email to them on 27 May 2020. He wrote “From what you told me after you spoke to [the landlord] over the phone, my understanding is that the compensation policy referred to in the tenancy agreement does not exist. If my understanding here is incorrect, please let me know by reply.” The agent replied the next day confirming that his understanding was correct.
The agent updated the resident on 28 May 2020 that “a contractor will be attending the property on Monday 1st June to carry out the works to the bathroom ceiling”. The contractor would have the keys if the resident was unable to attend.
On 23 June 2020 the resident asked the agent for compensation due to delayed repairs, which he said had taken 46 days from when the repair was first reported. The resident said that because he had not been made aware that the work had been completed and potentially was still, in his view, unsafe, he continued to live elsewhere incurring expense. “We believe that, when allowing for a reasonable period of two weeks for the ceiling to dry out, we are entitled to compensation equal to the value of a month’s rent (£1950), for the full time that we were unable to live in the property due to delayed repairs by [the landlord].” The resident also explained his dissatisfaction with how his request for a compensation policy was dealt with, having requested this on four separate occasions only to be told on 27 May 2020 that one did not exist, despite it being referred to in the tenancy agreement.
On 1 July 2020 the managing agent sent an email to the resident informing him that “Your Landlord has looked over the contents of the e-mail and it’s attached document and have offered a sum of £322 in compensation. If you could please confirm if you are willing to accept this that would be greatly appreciated. If you do not want to accept this, I can of course go back to your Landlord and we can continue to negotiate.”
On 9 July 2020, in response to this offer the resident said “we do not accept the sum presented. Whilst we are prepared to be flexible, we expect a reasonable value much closer to our original request, which fairly compensates us for the long period we were unable to use flat.”
On 16 July 2020 the property manager informed the resident by email that the landlord had increased its offer of compensation to two “working weeks” of rent. This was unacceptable to the resident who also challenged why such calculation should be based on a working week rather than a full calendar week.
Following contact from the resident, this Service wrote to him on 11 September 2020 encouraging him to lodge his concerns as a formal complaint with the landlord.
In an email to the landlord on 23 October 2020 the resident said that he would “like to formally escalate a complaint” that he had made via the managing agent in June, July and August. In his view the amount of compensation offered was insufficient. At this stage, however, no formal complaint had been logged.
When the email of 23 October 2020 was received there was some delay in trying to locate the resident’s complaint. He had not been provided with a reference number. It was later established on 27 October 2020 that the complaint was raised directly with [the landlord] and the correspondence was in the name of the managing agents.
Internal emails dated 9 November 2020 note that one of the landlord’s officers had offered compensation to the resident inappropriately (i.e. without the matter being investigated).
On 16 December 2020 the landlord wrote to the resident with its formal response to stage one. It referred to the resident as having contacted it on 19 November 2020. The landlord said it would honour the compensation offered by its officer of one week’s rent (£322), and also offered £50 compensation for communication delays that had occurred when the resident tried to resolve matters (it is not clear which specific delays the landlord was referring to).
The resident asked the landlord on 15 February 2021 to escalate his complaint (a copy of his request has not been provided for this investigation). The landlord acknowledged his request on 18 February, and asked him to clarify which issues he believed remained outstanding.
The resident replied to the landlord on 8 March 2021. He explained that he remained dissatisfied because:
1. The landlord failed to address the fact that it took two weeks to respond to an emergency, which he claimed, forced the residents to vacate the property due to safety.
2. The landlord failed to address what he considered a crucial point, namely, that he was not informed that the work was completed.
3. The compensation offered, ostensibly to honour what had been offered previously, was for one week of rent, whereas the previous compensation had been increased to two weeks. He also queried and disputed the landlord’s use of a work week rather than a calendar week. “
4. The stage one response explained that the management agent could not access the complaint policy at the time. However, there had been no acknowledgement that the agent had told the resident the policy did not exist.
5. The notion that the residents were safe to return to the property was made not by an expert professional visiting the property, but by a property manager checking photos.
The landlord sent its final complaint response on 15 March 2021. It explained that it had reviewed its handling of the way the repair was handled and the way the stage one complaint was managed. It explained that:
1. It was aware that the leak was reported on the 16 April 2020 and was rectified on the 30 April 2020. Because this was, in its view, a routine repair rather than an emergency, it considered the repair as being completed within its policy timeframes.
2. It acknowledged the resident had not been informed when the repair work was completed. It apologised, but noted that the resident had already notified the managing agents that he was staying away from the property due to the Coronavirus outbreak.
3. The resident had been offered compensation of two weeks’ rent on 16 July 2020. However, its officer had erred by offering the compensation without appropriately investigating the matter. Nonetheless, the landlord agreed to compensate for one week of rent.
4. It recognised that the resident had “received conflicting information as to whether the tariff [i.e. compensation policy] was available or if the tariff existed… during this time an internal tariff was used by the Customer Care Team which we would not share with our customers, additionally, the colleague who was previously liaising with [the management agent] would have little knowledge regarding compensation as he did not work within the Customer Care Team. Our compensation policy has now been changed meaning the tariff is now available to our customers, more information can be found at…” None of the contractors involved with the repairs had considered them to be unsafe or make the property uninhabitable. The landlord repeated its compensation offer of £322 (five days of rent), and £50 for poor communication. It explained that its response was the end of its complaint process, and told the resident he could bring his complaint to this Service.

Assessment and findings

Policies and Procedures

The landlord’s repairs guide for tenants stipulates that the landlord is responsible for repairing leaks in the property, and the tenancy agreement stipulates the landlord is responsible to repair the ceilings.
The landlord considers emergency repairs as repairs that are required to avoid immediate danger to one’s health and safety; a risk to the residents’ or others’ safety or property; serious damage to the residents’ home or adjacent buildings. The landlord classifies an emergency repair as a flood or a major water leak where the leak cannot be contained. It stipulates that emergency repairs should be completed within 24 hours. Other repairs are generally classified as routine, with a 28 day target.
The landlord’s repairs guide also states that it will aim to keep the resident informed and be clear about the next steps and expectations.
The tenancy agreement stipulates that a tenant “… may be entitled to compensation if …[it is] late in carrying out a repair. The rules and details of how this compensation applies are in the compensation policy. …[A tenant] can see any information …[it has] about the terms of this tenancy, our duty to repair the property and our policies and procedures for consulting and transferring tenants and allocating housing.”
The landlord has both a compensation policy and a “tariff of discretionary compensation payments”. The tariff sets out specific amounts of compensation for different types of issue.
The resident reported the leak and fallen plaster on 16 April 2020. He also explained at the time that nobody would be in the property “for the next few weeks”, and asked that the repairs be done in that time. The agent informed the resident on 1 May that they had been told that day the leak had been resolved. There is no evidence that the leak could reasonably have been said to have been an emergency, and the time taken to resolve it was within the landlord’s 28 day timeframe for routine repairs.
The agent passed on to the resident the contractor’s view that two weeks were needed for the plaster to dry before repairing, but that as the covid lockdown was in place, and the plastering was not considered to be an emergency, the final plaster work would not be done until after the lockdown was lifted. It transpired that the agent was able to arrange alternative contractors who completed the work on 1 June 2020, the date given to the resident by the agent in their update to him on 28 May. The total time taken was 46 days. However, 14 days of that time was needed to allow for the plaster to dry. Exceeding repair targets is not, on its own, an indication of service failure. There are many situations where the nature of a repair means it cannot reasonably be completed in the target timeframe. The key measure is why a repair was delayed, whether that was reasonable, and whether the landlord updated the tenant. In this case the reason the repairs were delayed was due to the plaster drying time, and the agents explained what was happening and how much time was needed. Overall then, the time taken by the landlord for the repair (via the agent) was reasonable and appropriate in the circumstances at the time.
The photos provided by the resident when he first reported the leak and fallen plaster show that a large piece of plaster had fallen into the bath, leaving a significant hole at the top of the wall. The resident’s concerns about safety were understandable in the circumstances, at least for anyone using the bath/shower. Nonetheless, in the absence of supporting evidence, this particular repair issue cannot reasonably be said to have made the whole property uninhabitable, as was claimed. The resident explained to the agent that he was concerned about the structural safety of the property due to the outstanding repair. On that basis he sought compensation for not being able to live in it at the time. It is not clear how that balances with his earlier explanation that the residents would be away from the property “for the next few weeks”, and so his absence was not because of the repair, at least not fully. In any case, the agent explained that its contractors did not agree, and that it would therefore not agree to reimburse or compensate the resident for rent.
The resident disputed the agent’s explanation about the habitability of the property, saying that “without professional assessment” the scale of the repair could not be known. However, the agent had made clear they were passing on the contractor’s feedback. Their explanation was therefore reasonable, and matched what the resident was seeking, i.e. a professional assessment.
In general, a landlord will only provide a full rent refund if it believes the entire property is uninhabitable. In cases where only specific rooms are unusable, a landlord will usually provide a proportionate amount of rent refund, relative to the number and type of rooms affected. The decision is a discretionary one lying with the landlord, which it should make based on the advice of its operatives and contractors. In this case, there were no grounds to provide a rent refund, and so the landlord’s officer’s subsequent decision to offer two weeks of rent refund is inexplicable. It was also a service failure, because, based on the landlord’s complaint response and internal emails, the officer acted outside the relevant policies and procedures, albeit to the resident’s benefit. The action also unreasonably raised the resident’s expectations about his complaint, and the potential for compensation.
The resident explained to the agent in May 2020 that he was waiting for confirmation that the repairs had been completed. On 28 May the agent told him the repair would be “carried out” on 1 June. The resident later complained that he had not been told the repairs had been completed, and that omission had led to him spending further time away from the property. It is true that the landlord did not follow up and confirm the completion of the repairs. However, its explanation that they would be done on 1 June was correct. It could be argued that the agent’s update was ambiguous, but as it stands, the update explained that the repair would be done on that date. If the resident was uncertain about that, it was open to him to make enquiries to reassure himself.
As has been seen, the landlord’s original compensation offer was based on a “working week” of rent, i.e. five days, rather than seven. The resident rightly responded that that was an unusual and unintuitive basis to work from, given that rent is based on a calendar month. Nothing in the landlord’s policies provided for this investigation refers to a work week when calculating compensation. In its complaint response the landlord repeated the same basis for its compensation, thereby continuing the confusion. It should have identified the incongruity and addressed it, and its failure to do so was poor.
The resident asked for a copy of the landlord’s compensation policy (as opposed to the tariff). His request would be reasonable at any time, but even more so given that the tenancy agreement refers to it in relation to situations such as his, when he was concerned about repair delays. The landlord has had a compensation policy since at least 2012, and has previously provided it to the Ombudsman in relation to other investigations. The policy does not indicate that it cannot be shared with tenants. Good practice is for any landlord to be open and transparent about its policies and procedures. It is not apparent why the resident had to ask multiple times for it, or why he was eventually told it did not exist. It may be that the policy was undergoing an update or revision at the time, but if so, that explanation should have been provided.
Following from that, the landlord’s explanation about the policy in its final complaint response was confused, and again overlooked the fact that the landlord had the relevant policy in place. It referred only to the tariff document, which, at the time, it said was not for public use. The landlord missed an opportunity to identify and acknowledge its poor handling of this issue (by its agent), to learn from the mistake, and to remedy it.
The landlord’s handling of the leak repair was reasonable and in line with both its repair timeframes and the circumstances. There was service failure by the landlord in offering compensation outside its relevant procedures, where no compensation was due, in not identifying and addressing the resident’s dispute of the “working week” basis for the compensation, and in not providing the compensation policy. Having said that, regardless of how it was calculated, the amount of compensation the landlord offered, £322 (plus £50 for other shortcomings), exceeded what would usually be considered appropriate. The landlord therefore suitably remedied its errors.

Determination (decision)

In accordance with paragraph 55 (b) of the Housing Ombudsman Scheme, the landlord has offered redress prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Reasons

The landlord handled the resident’s request for compensation and his request to see its compensation policy poorly. However, it responded to the main issue of the leak and subsequent repairs reasonably, and the compensation it offered was a reasonable remedy for its mistakes.

Recommendations

If it has not done so already, the landlord should now pay to the resident the total of £372 it offered in its complaint process.
The landlord should consider the findings in this report and identify what lessons it can learn about its handling of compensation requests, and how it manages and shares its policies and procedures.