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Metropolitan Thames Valley Housing (MTV) (202212130)

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REPORT

COMPLAINT 202212130

Metropolitan Thames Valley Housing

6 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

  1. The complaint is about the landlord’s response to the resident’s:
    1. Reports of damage caused by a leak.
    2. Associated complaints.

Background

  1. The resident is a leaseholder of a two-bedroom flat on the third floor of a three-storey property, the freehold of which is owned by the landlord. The block is managed by a third-party managing agent.
  2. The resident complained to the landlord on 29 September 2021 that the issue of gutters flooding her boiler and kitchen had been ongoing for more than a year. She said that she now needed a new boiler and compensation. The landlord’s response said that no leak had been detected during a visit but guttering issues at the block were the remit of the managing agent. The landlord partly upheld the complaint due to the communication and delays and referred to the her lease concerning the managing agent.
  3. The resident responded in February 2022 that she expected the landlord to resolve the complaint as she paid service charge to the landlord. The landlord then asked for evidence of the damage caused to the kitchen and on 24 March 2022 issued a final complaint response acknowledging its delays in contacting the managing agents. It said it would continue to monitor the managing agents and offered £300 for the damaged kitchen flooring and £50 for time and trouble.
  4. In April 2022 the resident advised the landlord that the issue was not resolved.  She asked for details of the repairs as they had been repeated since 2016 and the problem remained. She requested more compensation due to being approximately £800 out of pocket due to the leak. A further complaint was submitted in August 2022 when the landlord raised a job to investigate the gutter above the property due to water ingress.
  5. The landlord’s response, dated 25 October 2022, said that it had attended in April 2022 to resolve the leak and had not been advised of further issues. It recommended that the resident make a claim against its public liability insurance as the boiler and floor repairs were the resident’s responsibility. It offered £75 compensation for poor communication and service failure.
  6. In October 2022 the resident stated that when it rained, water still leaked from the gutters into the boiler flue and into the boiler. It then leaked through the boiler and onto the resident’s kitchen counter and onto the floor. She would like the landlord to fix this leak. She stated that she had replaced the kitchen flooring which was affected by the leak and also paid for a gas safety check on the boiler. The resident would like the landlord to reimburse her costs and  replace her boiler. She said that water has been seeping through the boiler for years and an engineer had advised that it could stop working at any point.

Assessment and findings

Scope of investigation

  1. The evidence provided to this Service indicates that there have been a series of complaints from the resident over several years relating to the same issue. The first was allocated the reference 76388 in September 2020 when the landlord advised a response would be issued by 13 October 2020. This initial complaint was not brought to the Ombudsman’s attention within 12 months of exhausting the landlord’s complaints procedure. In accordance with paragraph 42 (b) of the Housing Ombudsman Scheme, the Ombudsman may not therefore consider it.
  2. No response has been seen under reference 76388, but the resident chased the repair a year later on 29 September 2021 when reference 167050 was allocated by the landlord. Confusingly, the next response provided is undated but refers to a complaint dated 4 October 2021 and says ‘stage one final response’ but offers internal appeal rights, rather than to this Service. The resident raised the same matter again on 9 February 2022. A final response issued on 24 March 2022 refers to the complaint being escalated on 24 February 2022, and quotes the reference 167050. Compensation was awarded and appeal rights were then given to this Service. It may be that responses are missing from the file submitted by the landlord which would better indicate how the complaint process was followed.
  3. The resident did not refer the matter to this Service at that time, but instead complained to the landlord again on 22 August 2022 when the reference 187529 was allocated. The landlord responded on 25 October 2022 when again the letter was headed ‘stage one final response’ and compensation was awarded. Internal appeal rights were given, rather than to this Service.
  4. This investigation is made on the basis that the response dated 25 October 2022 was a final response, albeit lacking the correct appeal rights, and combines the landlord’s references 167050 and 187529. The landlord chose to offer a  further response rather than refer the matter to this Service when approached in August 2022, thereby in effect reopening the previous complaint.
  5. As outlined in the Ombudsman’s letter dated 15 November 2022, part of the resident’s complaint brought to this Service was around water leaking through a bathroom vent. This does not appear to have been raised as part of the complaint process under the references 167050 or 187529. The Housing Ombudsman can only investigate matters which have already been through a landlord’s internal complaints process, so the bathroom vent issue does not form part of this investigation. This is in accordance with paragraph 42 (a) of the Housing Ombudsman Scheme which says that the Ombudsman may not consider complaints which, in the Ombudsman opinion, are made prior to having exhausted a landlord’s complaints procedure. If the resident has not already done so, she may wish to contact the landlord directly to make a formal complaint about this specific issue.

Assessment

Repairs

  1. Section 5 of the shared ownership lease for the resident’s property, effective 2007, stipulates the landlord’s responsibilities. Section 5(5)(a) says that (prior to the grant of the superior lease) the landlord shall maintain repair, redecorate, renew and improve the roof, foundations and main structure of the buildings in the estate and all parts of the building which are not the responsibility of the leaseholder or any other leaseholders. 5(5)(b) includes the pipes, sewers and drains and (c) the common parts. 5(7) says that, following the grant of the superior lease, the landlord shall procure that the management company complies with its obligations in clause 5 of the superior lease.
  2. Online information for residents who are leaseholders gives the following information: “repairs and maintenance –  If you live in a flat – we are responsible for the exterior of your building and communal areas” and “we’ll repair roofs and gutters”.
  3. Following the resident’s complaint to the landlord on 29 September 2021, its response (reference 167050, undated but referring to complaint of 4 October 2021) said that the guttering was not the responsibility of the landlord. It advised her to refer to her lease for information regarding the managing agent. It acknowledged that there had been poor communication but did not make an offer of a financial remedy.
  4. The later response of 24 March 2022 acknowledged that the landlord should have liaised with the managing agents about the repairs, and that it would now resolve the repair without delay following an inspection. It offered £300 for the damage caused to the kitchen flooring as well as £50 for time and trouble caused by the landlord’s delay in contacting the managing agents. At this point the resident would reasonably expect that the landlord would take the matter forward to its conclusion.
  5. By the time of its response in October 2022, the landlord said that, as a leaseholder, the boiler and floor repairs were the resident’s responsibility, despite it previously having offered compensation in respect of the damaged flooring. The landlord recommended that the resident looked to making a claim via its public liability insurance for the damages and attached details on how to do this. The landlord partially upheld the complaint due to its delay with the complaint being raised and the managing agent being made aware that there was still an ongoing leak. It offered £75 compensation made up of  £25 for poor complaint handling and £50 for service failure.
  6. In its email to this Service on 17 November 2022, the landlord stated that “the block is a third-party managed block and [the landlord] is responsible for all external repairs including roof.” It added that it does not have a copy of the service level agreement with the managing agents. However, in a later email on 6 December 2022 the landlord stated, “the Compliance team have confirmed that as [the resident] is a leaseholder, [the landlord is] not responsible for this repair or replacement, and that as [the landlord is] not the freeholder of the building the external repairs to the guttering/roof are the responsibility of [the managing agent].”
  7. There is no evidence that the resident has seen the lease or the ‘superior lease’, the document is blank where the leaseholder and witnesses’ signature are described.  It would not be reasonable for a resident to refer back to an original lease, which uses specific legal terminology, in order to log a repair on their property. In any event, the lease says that the landlord shall ensure the managing agent complies with its obligations.
  8. The landlord’s own website says that it is responsible for roof repairs on blocks of flats owned by leaseholders. Information on the landlord’s website, and sent to this Service, confirm that the landlord is responsible for external repairs. It, therefore, is fair in all of the circumstances that the landlord take responsibility for the repair to the guttering. As stated above, the lease specifies that it is the landlord’s duty to “procure that the management company complies with its obligations in clause 5 of the superior lease.” This indicates that the resident should expect the landlord to take responsibility for the managing company’s failure to undertake repairs identified in the lease.
  9. The evidence supplied by the landlord shows that it had logged the resident’s reports of a leak for several years. It is not for the resident to determine how the landlord would “procure” the managing company’s actions with respect to the repair. This Service concludes that the landlord’s final decision, of 24 March 2022 was in consonance with the terms of the lease and the provision of its policy. No evidence has been provided to this Service to indicate that a contract for the repairs exists between the resident and the managing agent, thus, it would have been appropriate for the landlord to have resolved the issues sooner.
  10. The landlord also failed to direct the resident to its liability insurance at an earlier date. It is not unreasonable that the resident makes a claim against the landlord’s policy, but it is unreasonable that it did not direct her to do so previously. If the resident has not already made a claim on the landlord’s insurance, it should now support her in doing so.
  11. The landlord stated that could not “accept liability” for the damage to the resident’ boiler. It further stated that the offer of compensation for the replacement of her flooring had been made outside its process, because it had communicated regularly with the Managing Agent to log the repairs.
  12. It is fair in all the circumstances of the case that the resident be paid £500 in respect of the poor handling of the repair. This should be on top of the sums already offered for time and trouble and service failure to reflect the particularly poor management of this issue since the complaint made in September 2021. This sum reflects figures recommended in the Ombudsman’s remedies guidance for cases where there has been considerable service failure, but where there may be no permanent impact on the resident. This can include misdirection, as has occurred here with the confusion around who was responsible for repairs and mixed messages about what the landlord would compensate for. In addition, the resident had to chase the repair, which she says had not been resolved by October 2022.
  13. The Ombudsman acknowledges that this has been a frustrating issue for the resident which has taken too long to resolve, with confusion around who was responsible for repairs. The landlord should now support the resident in managing the repair, whether that be via the managing agents or its own repairs process,  and in resolving any insurance claim relating to damages as a result of the leak. The resident should be put back into the position she would have been in had the leak not occurred, in so far as is possible.

Complaint handling

  1. The landlord’s complaints policy says at clause 3.2 that stage one complaints will be responded to within 10 working days. A stage two complaint will only be reinvestigated if the stage one response is factually incorrect, does not address the initial complaint, important information had not been considered, or actions agreed had not been completed. A stage two resolution will be provided within 20 working days.
  2. In this case, as covered above, there is a lack of evidence to support that the process was correctly followed. It is not explained why two of the responses were labelled “stage one final response”.  Whilst the landlord’s policy of not reviewing cases at stage two unless the stated criteria is met is understood, it should not be possible for the stage one response to also be the final response at the date of issue.
  3. The resident’s email of 29 September 2021 was acknowledged, and the resident was advised that a response would be issued in ten working days. The landlord then wrote to advise the resident that there would be a delay, which is reasonable. The copy of the response then issued is undated, but again apologises for the delay. This appears to be a fair response to the delay which was not significant.
  4. On 9 February 2022 the resident stated that she was unhappy with the outcome of the complaint. There was an email conversation where the landlord requested receipts for damaged flooring, and a stage two complaint response was issued on 24 March 2022. Whilst this was over the 20 working days allowed for in the landlord’s complaints policy, it is evident that there was communication with the resident and efforts were made to resolve the complaint. At this stage, the resident had appeal rights to refer to this Service.  Delays in the complaint process after this point are not the sole responsibility of the landlord, however it did not appear to direct the resident to the Ombudsman on subsequent contact, although the internal complaints process was exhausted.
  5. Following further repairs being raised and further contact from the resident via an online complaint form on 22 August 2022, the landlord logged a new complaint and said a response would be made in ten working days.  The response was not made until 25 October 2022, but again apologised for the delay and offered £25 in respect of poor complaint handling. This is reasonable in terms of the delay which the landlord had kept the resident appraised of in its emails dated 21 September 2022, 7 October 2022 and 19 October 2022.
  6. The “stage one final response” of October 2021 reference 167050 appears to be a stage one response, as a stage two response with the same reference was issued in March 2022.
  7. Similarly, the  final response of 25 October 2022 reference 187529 failed to include appeal rights to this Service, despite being labelled “final” on the letter and the accompanying email. The landlord also refers to the letter as the final response in its correspondence with this Service. By the date of this letter, the resident was in contact with this Service and was being advised on how to proceed. Given that residents are asked to allow landlords to issue a final response before referring to this Service, the stages of the landlord’s complaint process must be clearly followed to ensure that residents are not delayed or prevented from accessing the Ombudsman.
  8. It would be reasonable for the landlord to pay £100 in compensation to the resident for its handling of the formal complaint. This would be in the range of the Ombudsman’s recommended remedies for instances of service failure resulting in some impact on the complainant.  We recognise that there has been service failure which had an impact on the complainant but was of short duration and may not have significantly affected the overall outcome for the complainant. In this case, the outcome in terms of the repair may have been the same, but the resident would  have more confidence in the landlord’s complaint process had it been clearly followed and explained.
  9. In addition, the landlord should ensure that relevant staff are reminded to follow the published process, including when to open a duplicate complaint on the same issues and to ensure residents are clear on what stage of the process their complaint stands.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of:
    1. The landlord’s handling of the repairs to the guttering and associated damage caused.
    2. The landlord’s response to the resident’s complaint.

Orders

  1. Within four weeks of the date of this determination, the landlord should provide evidence to this Service that it has:
    1. Paid the resident the total sum of £1000 in compensation comprising:
      1. The sum of £500 in respect of its handling of the repair to the resident’s guttering and associated damage to the resident’s property, in addition to the £350 offered in March 2022 and £50 in October 2022.
      2. Paid the resident  £100, including the £25 offered in October 2022, in respect of complaints handling.
    2. Arranged an appointment with the resident to resolve the issue of the leaking guttering.
    3. Supported the resident in making a claim on its public liability insurance, if not done already.
    4. Ensured salient staff dealing with complaints are clear about the complaint process, particularly in respect of duplicate cases and clearly identifying and relaying to residents what stage their complaint is at.

Recommendations

  1. It is recommended that the landlord:
    1. Review its complaints internal process document as the copy provided with this case, appears to be a draft copy with comments for discussion.
    2. Liaise with the resident regarding the bathroom vent repair she has raised, including a referral to the managing agent if appropriate.