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Peabody Trust (202008926)

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REPORT

COMPLAINT 202008926

Peabody Trust

26 April 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 is about:
  1. The landlord’s response to the resident’s reports of a leaking roof and damage caused to her living room ceiling, internal walls and possessions and;

 

  1. The landlord’s complaint handling.

Background and Summary of events 

 

Policies, procedures and NHBC 

  1. The landlord’s repair policy (for tenants) states it is responsible for repairs to the communal areas including roofs and plastering. There are four different repair categories: Emergency repairs; Routine repairs; Fast Response and; Communal repairs. It does not specify larger scale works or latent defects. 
  2. Under section 11 of the Landlord and Tenant Act 1985 (the Act), the landlord must keep in repair the structure and exterior of the property. It is also responsible for the external walls and the roof of the building and internal walls and ceilings.
  3. The National Housing Building Council (NHBC) is a warranty and insurance provider for new homes. There is a two-year builder warranty period to cover defects that are not general wear and tear or maintenance issues. The NHBC also provides further insurance under its Buildmark cover for the following eight years if there is damage to the home because the builder failed to build certain parts of the home to NHBC requirements. It provides a guarantee if the builder cannot do this.
  4. The landlord’s complaints process is comprised of two stages. Section 4.5 of its Complaints policy states stage one will be an investigation carried out by a case manager from the relevant service area. If the complaint is escalated to stage two, an independent review will be carried out by the Customer Experience Team. The below sections of the landlord’s complaints procedure are relevant:
    1. Section 3.7 states a full investigation will be carried out at stage one and if the outcome of the investigation does not require any remedial actions or a need to obtain further information, then a response to the complaint addressing all the issues must be sent within 10 working days.
    2. Section 3.8 states if this is not possible, an explanation will be provided as to why this is the case, an update on the progress, what will be the next steps and when they can expect to hear from it.
    3. Section 3.1 states once the stage one response has been sent, the complainant has 10 days to request escalation to stage two.
    4. Section 5.2, the review of the complaint must be carried out within 15 working days of the complaint being acknowledged.
    5. Section 5.5 states If a full response cannot be provided within 15 working days, an interim call or email/letter must be sent to the complainant explaining why this is the case and the date on which they can expect the review to be completed and a full response issued. In such circumstances the complainant must be kept updated on a weekly basis.
  5. The landlord’s Compensation policy under section four states it will not make compensation payments where a claim can be made on home contents or buildings insurance and further that residents are expected to take out adequate home contents insurance for their furniture, decoration and personal possessions to insure them against accidental damage, loss, fire or water damage, burglary and so on.
  6. Section 7.1 of the landlord’s Compensation policy provides general compensation and includes a scale for time, trouble and inconvenience from £1 to £400 depending on the extent of the disruption caused.
  7. Section 7.2 includes a scale for complaint handling which provides for between £1 to £25 for minor failure, between £26 and 75 for moderate failure and between £76 and £100 for severe failure described as: “evidence of extensive failure to follow the complaint policy or procedure or to investigate a complaint correctly and cause significant impact on complainant”.

Background

  1. The resident is an assured tenant. The property is a second-floor flat within a 2-story block. The property is approximately ten years old. 
  2. The landlord has confirmed to the Ombudsman that the roofing leaks came to light several years ago and are due to a failed Ethylene Propylene Diene Monomer (EPDM) Rubberoid roofing system due to a failed installation. It explained that due to the original developer and roofing contractors no longer being solvent, it referred the issue to the NHBC in 2016. It said the main body of repair carried out by the NHBC at that time was over a neighbouring flat x, with some additional isolated repairs across other sections of the roof. This work was completed in September 2017.  No repairs were completed over the property in question as the NHBC had decided that no repairs were required to this section of the roof. The landlord advised the repairs undertaken failed within a year and the NHBC was called back. It said its Latent Defects Team (LDT) on being made aware of the issue with water ingress at the property, it was able to challenge the NHBC on their original findings and have its claim validated for the roof issue over the property as part of the original claim.
  3. The resident originally raised the leak with the landlord in or around April 2018 when there were signs that the leak was affecting her property. The landlord inspected the property but there was no further contact between the parties until early 2019 when the resident re-raised the problem with the leak with the landlord.
  4. The Housing Ombudsman’s approved Scheme includes timescales within which a resident is expected to bring a matter to the attention of the landlord as a formal complaint which is usually six months of the matter arising. Therefore, on this basis this investigation is limited to considering the report of a roof leak and associated damage from 27 August 2019 which is six months prior to when the resident raised a complaint via social media on 27 February 2020.

Summary of Events

  1. On 27 February 2020, the resident complained to the landlord via social media about its response to a leaking roof that she advised had been ongoing for at least three years. The leak was causing water damage to her living room ceiling and her carpet and sofa.
  2. On 6 March 2020, the landlord called the resident advising it was awaiting an update from its LDT. On 9 March 2020, the landlord replied in writing to the resident stating it was chasing NHBC on a recall to works they carried out to the roof – originally in 2016/2017. It said it had escalated this to Senior management and that it will also be escalating this at NHBC. It advised it would provide an update when it had received a response from the relevant parties.
  3. On 20 April 2020, the landlord raised a responsive repair job for the resident’s living room ceiling to be made safe at the property. The landlord’s notes state “Apt to be booked once restrictions are lifted”.
  4. On 1 June 2020, the resident called to chase the ongoing roof repair referencing the landlord’s communication of 9 March 2020 advising it was looking into the matter. She reiterated that as the issue had not been resolved her carpet and sofa had been badly damaged. The resident also said that an officer had told her it would replace these items. The landlord advised during the phone call that its policies would not cover damaged to possessions.
  5. On 2 June 2020, the landlord sent a stage one response advising its LDT were chasing NHBC on a recall to works they carried out to the roof at an earlier date. It said it had escalated this matter to senior management and NHBC and it will provide an update once a response has been received from the relevant parties. It advised that a responsive repair had been raised to make the resident’s living room ceiling safe and an appointment needs to be booked once the coronavirus restrictions are lifted. It said its Surveying Team will be in touch shortly or she may wish to contact them to update her. It advised that having looked into this matter, it confirmed it would not be replacing the carpet or sofa or considering any compensation and it had no records to support her claim that it agreed to replace the damaged items or pay compensation. The landlord suggested the resident make a claim for the damaged items via her home contents insurance policy. It explained its policy was not intended to replace or compensate for a resident’s lack of home contents insurance. It also said if she felt that it had acted negligently, and she wished to pursue this, the resident should contact its Insurance Team setting out her case and providing any supporting documentary evidence.
  6. On 14 June 2020, the resident replied advising she was “very disappointed” that it deviated from the central issue; the landlord’s responsibility and liability in causing damage to her property and allowing her to continue to live in non-habitable accommodation where she continues to pay rent. She referenced having to live in a “pool of water” whenever it rains and reiterated frustration at the matter remaining unresolved by the landlord. The resident stated it was unclear why Covid-19 restriction would affect external roof works and requested that it urgently contact the relevant persons and advise her when essential remedial works will be carried out. She also asked for her complaint to proceed to the second stage.
  7. In a further response dated 16 June 2020, the landlord reiterated the points made in its stage one response including that it was awaiting an update from senior management and the NHBC regarding the roof repair and that there was an active repair raised for works to be carried out to the living room ceiling. It said it had contacted the LDT and Surveying Team to contact her with an update. It also reiterated that it will not replace the carpet or sofa and that the resident can make a claim for the damaged items via her home contents insurance policy.
  8. On 25 June 2020, the resident’s partner responded to the landlord setting out the history of the leak including:
    1. The roof leak was first reported by residents of neighbouring flat x in 2017;
    2. the resident then contacted the landlord on 12 April 2018 due to signs that the leak was affecting their property;
    3. an appointment was made for 25 April 2018 however they did not hear from the landlord again until 2019 when the landlord was attending flat x where the residents had to move out of due to the flood;
    4. despite chasing the landlord again in February 2020, no effective steps had been taken.
  9. The resident’s partner also said that water ingress had caused the internal walls to rot and the ceiling plasterboard to fall off, risking collapse. Furthermore, he described the impact of the leak on him and the resident including having to live in a damp and wet flat and due to him being severely asthmatic, having to sleep with the windows and doors open to let in fresh air. He said that every time it was forecast to rain, they had to take time off work to stay in the flat collecting water with buckets.  He also referenced the landlord’s obligations to carry out responsive maintenance and repairs within a reasonable amount of time and ‘make good’ of any damages to the internal decoration including damage to property caused by disrepair.
  10. On 26 June 2020, the landlord asked for clarification as to what the resident was ideally seeking as a resolution to her complaint. It also advised it would continue with the review and aim to respond by 17 July 2020, however, advised this may take longer as the Covid-19 pandemic was having an impact on its service provision ability due to a number of staff and its contractors on furlough coupled with a backlog of work to get through.
  11. On 18 July 2020, the resident advised the landlord that she wanted:
    1. A definite date of when the roof will be repaired;
    2. A definite date of when the water damage to the internal walls, ceiling and doors will be repaired and made good and;
    3. A definite date of when the carpets and sofa will be replaced.
  12. The landlord arranged with the NHBC for it to carry out the internal repair required to the resident’s property. This is confirmed in its case note dated 21 August 2020 which states the NHBC will be “taking on” the response repair to the internal ceiling previously assigned to its surveying team, referencing a visit to the property by the NHBC on 27 August 2020.
  13. On 28 August 2020, the resident chased the landlord asking for progress on the repairs and advising the leak had now ruined their “entire entertainment system”.
  14. On 9 September 2020, the landlord advised it was chasing the roof repair and will get back to the resident as soon as possible. It said given the delay, it would look to offer compensation. 
  15. On 7 October 2020, the landlord emailed the resident advising the NHBC had advised the schedule of works is complete and had gone to tender. It also said the claims handler at NHBC said a temporary overlay of the roof had previously been successful and proposed the same is carried out here in the interim to “hold back water ingress” and is awaiting authorisation.
  16. The landlord’s internal communications dated 27 October 2020 referenced that the NHBC were in the process of carrying out temporary repairs over the flat to hold up the water ingress until they have completed their tender process for the subsequent work. In her communication with the Ombudsman, the resident confirmed temporary work to the roof was completed in early November 2020.
  17. On 12 November 2020, the landlord issued its stage two response. It stated that in terms of the roof repair specifically its LDT are continuing to liaise with NHBC on a recall to works carried out. It reiterated its previous position in relation to the resident’s claim for reimbursement for the cost of damaged possessions including her sofa and carpet, namely that the resident should make a claim on her home contents insurance policy.
  18. The landlord stated however that it accepted there had been delays in identifying the matter as a latent defect and that the resident was in this position through no fault of her own. However, it said as this has now been accepted as a latent defect, it was important to state that it is also in this position through no fault of its own either. Nevertheless, it said that it will continue to lobby for the fix to the roof and any related repairs. It also stated whilst the resident had asked to back date to 2017, its complaints policy allowed it look as far back as six months prior to when this complaint was logged. As a gesture of goodwill, it offered her compensation of £300.00 for her time, trouble and inconvenience in pursuing the matter. It also said it offered her the maximum for complaint handling- £100, to take into account any failings during the formal complaints process – prior to and at stage one and two, therefore offering total compensation of £400.
  19. On 20 November 2020, the resident advised the Ombudsman that she was extremely unhappy with the £400 “goodwill” offer for “thousands of pounds worth of damage”. She reiterated that the reported the leak years ago and the landlord “did nothing” causing the problem to worsen, and it has not yet been resolved. The resident also said she has no home content insurance because she could not afford it and did not expect her house to flood due to the negligence of the landlord. On 21 January 2021, the resident informed the Ombudsman that the leak with the roof has been pending four years and is not yet resolved.
  20. The landlord’s internal communications with NHBC show the NHBC attended a “pre-start meeting” at the property building on 2 February 2021 and on 25 February 2021 the NHBC advised there was a drainage issue which needed to be resolved before the works could commence. 

Assessment and findings 

Landlord’s response to the resident’s reports of a leaking roof and damage caused to the lounge ceiling, internal walls and possessions.

  1. Under its repair policy, the landlord is responsible for repairs to the communal areas including roofs and plastering. However, the landlord has explained that the leak to the roof of the resident’s building is due to failed EPDM Rubberoid roofing system due to it being poorly installed and this constitutes a latent defect. Usually, where a latent defect comes to light within ten years of the property being built and the builder is a member of the NHBC as in this case, the builder would be responsible for addressing the defect.  In this case however, the landlord has confirmed that due to the builder/roofing contractors becoming insolvent, it referred the matter to the NHBC in accordance with its eight-year insurance Buildmark cover.
  2. The NHBC subsequently carried out repairs to the roof of the resident’s building in 2017 however the main repairs to the roof were over neighbouring flat x, and no repairs were completed to the section of roof over the property. The landlord has told the Ombudsman that the NHBC returned a year later when it became clear the repairs had not effectively resolved the issue, however, it is unclear from the available evidence as to what, if any, further works were carried out to the roof at this stage. It is clear however that, at the time of the resident’s complaint on 27 February 2020, the landlord was aware that the property had been affected by leaking from the roof.
  3. It is noted that in its final response of 12 November 2020, the landlord acknowledged that as the cause of the leak was due to a latent defect, the resident was “in this position” through no fault of her own. The landlord also stated that it was also “in this position” through no fault of its own either. This is accepted in as much as once the cause was identified as a latent defect and the NHBC accepted responsibility for the rectification works to the roof, the landlord was not in control of resolving the issues or the timescales followed by the NHBC to complete the necessary work. However, it is reasonable to expect the landlord to have chased up the NHBC to avoid any delays and also to have kept the resident informed about the progress of the roof repairs during the complaints process. 
  4. Following the resident’s complaint of 27 February 2020, the landlord advised the resident on 9 March 2020 it that it was chasing NHBC on a recall to works they had previously carried out to the roof. It said it had escalated this to Senior management and that it will also be escalating this at NHBC. It advised the resident that it would provide an update when it had received a response although no date was specified. Whilst the evidence indicates the landlord raised a responsive repair job on 20 April 2020 for the resident’s living room ceiling to be made safe at the property, no update was provided to the resident, as promised.  It was only after the resident chased the landlord on 1 June 2020, that it issued a stage one response in which it advised the resident that a responsive repair had been raised to make her living room ceiling safe and that an appointment will be booked once the coronavirus restrictions are lifted. It also reiterated that it was chasing the NHBC on a recall to works to the roof they carried out at an earlier date and that it would provide an update when it had received a response.
  5. After the resident contacted the landlord again on 18 July 2020 and 28 August 2020 chasing the repairs, the landlord confirmed to her on 7 October 2020 that the NHBC had advised the schedule of works was complete and had gone to tender and that it intended to carry out a temporary repair to the roof in the interim to “hold back” water ingress which was awaiting authorisation. The NHBC subsequently applied a temporary watertight coating to the roof to stop further water ingress in November 2020. At the same time, the NHBC carried out the promised internal repairs to the resident’s ceiling which it had also accepted responsibility for. However, as at the date of the final response on 12 November 2020, repairs to fully address the latent defect to the roof, had not yet been completed. 
  6. Therefore, it took approximately 14 months, from August 2019 until November 2020, for the temporary repair to be provided to the roof and the same amount of time for internal repair to be provided to the resident’s ceiling. As mentioned above, although the landlord was reliant on the NHBC in carrying the works, it told the resident on a number of occasions that it was chasing the NHBC. However, no evidence of such has been provided to the Ombudsman for the timeframe between August 2019 and August 2020 therefore it is unclear if or how often the landlord was chasing the NHBC during this period. Clearly, the repairs provided in November 2020 indicate that the landlord had taken steps to progress the works with the NHBC at this point and this is confirmed by its case note dated 21 August 2020 which confirmed the NHBC had agreed to carry out the internal ceiling repair previously assigned to its Surveying Team. The roof repair provided however was only temporary.
  7. The landlord has also said that the Covid-19 pandemic impacted on the time taken to resolve the leaking roof. It is acknowledged that within a month of the resident’s formal complaint of 27 February 2020 regarding the leaking roof, the UK had gone into ‘lockdown’ in response to the pandemic. In its 26 June 2020 communication to the resident, it advised that the pandemic was impacting its service provision ability and to expect delays. However, it is evident that the landlord did not provide the resident with regular updates throughout the 14 months, including the timeframe prior to the pandemic; on the majority of occasions, the landlord only communicated with the resident after she had contacted it, usually after not hearing from the landlord for either weeks or sometimes months, despite promising updates. Therefore, it is a concern that there were significant gaps in communication from the landlord throughout which meant the resident had to spend an unreasonable amount of time pursuing a fix to the issue.  This issue is further addressed in the complaint handling section below.
  8. Therefore, it is acknowledged that the delays in repairing the defective roof must have been extremely frustrating and inconvenient for the resident as she had to live with the leak and the water damage caused by this for an extended timeframe. However, due to the landlord identifying that the leak was caused by a latent defect, ultimately it is not responsible for the rectification works although it is evident it could have done more, particularly earlier on, to progress matters more quickly. In its final response, the landlord acknowledged there had been a delay in identifying the matter as a latent defect and offered the resident £300.00 in recognition of her time, trouble and inconvenience. The landlord rejected the resident’s request for reimbursement for the cost of her possessions damaged including a carpet and sofa advising that it is not permitted to offer compensation because this should be covered by her own home contents insurance provider. It said the resident can make a claim through her home contents insurance. This is in accordance with the landlord’s Compensation policy which makes clear it expects residents to take out adequate home contents insurance. Therefore, the landlord’s stated position in regards to paying compensation for damaged her possessions due to the leak, is in line with its policy.
  9. It is noted however that in its communication to the resident dated 16 June 2020, the landlord stated that should she feel it has acted negligently she may want to pursue a claim via its insurance team and provided contact details. The landlord reiterated this in its stage two response. In light of the resident explaining she does not have home contents insurance, she has the option of contacting the landlord’s Insurance team to enquire about making a claim on the landlord’s insurance.
  10. In terms of the compensation offered, the £300 falls into the medium tier of the scale in the landlord’s compensation policy for time trouble and inconvenience. Whilst it is acknowledged that the leak from the living room ceiling had a considerable impact on the resident over an extended length of time, the amount is at the higher end of this tier and after taking into account delays caused by Covid-19, the amount offered is reasonable.
  11. Therefore, the compensation offered by the landlord in its complaints process together with its commitment to continue to chase the NHBC to provide the permanent roof repair, is sufficient to show that the landlord has provided reasonable redress. However, in light of the internal damage caused by water ingress, it is reasonable for the resident’s internal decorations to be restored back to their original condition. In its communications to the Ombudsman dated 15 April 2021, the landlord confirmed that as part of the NHBC claim, once the roofing repairs have been completed, the internal damage caused by the water ingress will be reviewed and remedial repairs carried out. Therefore, it is appropriate to include a recommendation below for the landlord to ensure this is adhered to by the NHBC.
  12. In addition, the landlord has told the Ombudsman that it would be prepared to offer further compensation to affected residents on a case by case basis, including the resident for further time, trouble and inconvenience until the outstanding repairs are completed. Therefore, it is reasonable to include a recommendation below to reflect this.
  13. As at the date of the final response on 12 November 2020, the landlord stated it would continue to lobby for the fix to the roof and it has confirmed in its most recent communication to the Ombudsman of 15 April 2021 that this work remains outstanding. Therefore, it is also appropriate to include a recommendation below for the landlord to continue to lobby the NHBC until the promised rectification work to the roof is provided.

Complaints handling

  1. The landlord’s complaints procedure states that it will provide a complaint response under stage one and stage two within 10 and 15 working days respectively and where it is unable to keep to these timescales it will advise the resident when they can expect a full response.
  2. As the resident raised a complaint on 27 February 2020, the landlord’s stage one response dated 2 June 2020 indicates it took more than three months to respond to the complaint. As mentioned above, the landlord did not provide any updates during this timeframe nor did it advise the resident when she could expect a response. It is noted that the landlord did not acknowledge this in its stage one response nor explain or apologise for the delay. There was a further delay of nearly four months in providing a stage two response from when this was requested by the resident on 14 June 2020 until 12 November 2020 when the landlord issued its stage two response. It had sought clarification from the resident on 26 June 2020 as to what she sought as a resolution and at the same time advised it aimed to complete the stage two review by 17 July 2020 but explained that there might be a delay in providing the stage two response due to a backlog of work due to Covid-19. After the resident provided the requested clarification on 18 July 2020, the landlord only provided one update on 7 October 2020 until its final response of 12 November 2020.
  3. Therefore, it is evident that the landlord failed to follow its complaint process when handling the resident’s complaint which resulting in a protracted complaint process. This amounts to service failure. In its stage two response it stated it was offering £100 which was the “maximum” for complaint handling to take into account “any failings during the formal complaint process prior to and at stage one and two”. In light of identified failings when handling the complaint, it is reasonable for the landlord to offer the resident the maximum amount under its compensation policy, which was fair in the circumstances.

Determination (Decision)

  1. In accordance with paragraph 55(b) of the Scheme, there was a reasonable offer of redress by the landlord which resolves the complaint regarding the landlord’s response to the resident’s reports of a leaking roof and damage caused to the living room ceiling, internal walls and possessions.
  2. In accordance with paragraph 55(b) of the Scheme, there was a reasonable offer of redress by the landlord which resolves the complaint regarding the landlord’s complaint handling.

Reasons

  1. There has been an unreasonable delay in providing a permanent repair to the roof of the resident’s building. However, as the cause is a latent defect with the roof which the NHBC has accepted responsibility to fix, the landlord is not in control of the timescales being followed to complete the repairs. A temporary fix to the roof and the resident’s ceiling was provided during the complaint procedure and the landlord has committed to chasing the NHBC until they complete the repair to the roof and restore the internal decorations to their original condition.  It also offered to pay the resident £300 in compensation and explained its policy does not cover damage to possessions.
  2. The landlord did not follow the timescales stated in its complaint process when dealing with the resident’s complaint and its failure to do so resulted in a protracted complaint process. However, the £100 offered during its complaint process, was reasonable and therefore resolves the complaint regarding complaint handling satisfactorily. 

 

 

Orders and recommendations 

 

Recommendations

  1. The Ombudsman recommends that the landlord should:
  1. Continue to lobby the NHBC to provide a permanent fix to the roof and related repairs, as promised in its complaints process. This should include remedial works to restore internal decorations damaged by water ingress.
  2. Pay the resident the compensation of £400.00 offered in its complaint process.
  3. Revisit the issue of compensation for further time, trouble and inconvenience once the outstanding repairs have been completed, as the landlord advised it would do in recent correspondence to the Ombudsman.