Wandsworth Council (202209074)

REPORT

COMPLAINT 202209074

Wandsworth Council

27 April 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. The landlord’s handling of repairs for water ingress at the resident’s property.
2. The landlord’s response to the resident’s concerns about the responsibility for the waste pipe that services the property.
3. The landlord’s handling of the associated complaint.

Background and Summary of Events

Background

The resident is the leaseholder of the property, and the landlord is the freeholder. The resident lives in a flat that occupies the ground and first floors of the block. The lease began on 17 March 1989.
The resident’s daughter (the representative) made the complaint on the resident’s behalf. The representative has provided a lasting Power of Attorney naming her as the resident’s Attorney.

Summary of Events

Scope of the Investigation

There have been historical reports of water ingress in the main bedroom ceiling of the property. Previously water ingress was reported, repaired and dealt with in 2011, 2016 and 2020 via stage one complaints and insurance claims. The Ombudsman cannot investigate a complaint that has not completed the landlord’s internal complaint process or that was not brought to the landlord’s attention within six months of the matter arising. Therefore, this investigation will not consider events that occurred prior to 2021. This also includes any matter that has already been decided by an insurance claim.
The Ombudsman will only examine events from 5 October 2021 onwards. This is seven months prior to the formal complaint being made and aligns with the landlord’s stage one and stage two complaint responses.
The resident is disputing the responsibility for repairs to a waste pipe serving their property that is only accessible from the neighbouring property and the communication from the landlord regarding this. In particular this is about Clause 3(i) of the lease and whether the resident is responsible for repairs and maintenance of a pipe which is accessed from their neighbour’s property.
Whilst we can review the landlord’s handling of repairs to the pipe and consider whether it acted in line with its own policies and procedures; it is not the role of the Housing Ombudsman to interpret the terms of a Lease with regards to the respective repairing obligations of the landlord and leaseholder, particularly when these terms are in dispute. The representative may want to seek their own legal advice as to the repairing obligations set out in the Lease.

The landlord’s handling of repairs to a leak at the resident’s property.

The representative contacted the landlord on 5 October 2021 to report water ingress into the property. An inspection took place by the maintenance manager on 12 October 2021. The inspection concluded the leak was from the bedroom windowsill and an assessment was made to re-point around an airbrick, rake out & renew any defective mastic to affected windows and re-point any areas of brickwork that might be required.
The visit on 12 October 2021 took place without the representative being aware the visit was being made. The representative said the landlord was aware of the need to contact her in the first instance and had email and contact phone numbers for her.
The representative spoke to a manager on 19 October 2021 about the unannounced visit on 12 October 2021. During this conversation the representative says she was informed by the manager she would get photos and a copy of the report from the visit.
The repairs were completed on 25 October 2021. Scaffolding was left in place to monitor the repair due to the reoccurrence of previous water ingress. The landlord says no further reports of water ingress were made during that time by the resident or the representative and the scaffolding was removed in February 2022 due to upcoming bad weather. The representative says no inspection was carried out during this time by the landlord despite assurances it would do so.

Response to the resident’s concerns about responsibility for the waste pipe serving the property

On 19 November 2021 the representative was contacted by the next-door neighbour who is a tenant of the landlord stating there was water coming into their flat and was asked if the neighbour could inspect the resident’s property to try and locate the source of the leak. No source of the leak could be found, and the neighbour contacted the landlord’s area housing team who inspected both properties.
The representative spoke with the landlord on 24 November 2021 and was promised a call back the next day once the manager had received the report of the inspection. The representative was also told they would receive a copy of the report and any photos taken.
The landlord wrote in a letter dated 24 November 2021 to the resident to inform her the landlord’s contractors had advised that the leak was from the resident’s kitchen waste pipe which was causing water to build up behind the resident’s kitchen wall and into the neighbour’s property. The landlord requested in the letter that the resident carry out repairs to avoid any further damage.
The representative in its complaint letter to the landlord stated they received the letter on 27 November 2021.
The representative visited the neighbour’s property on 27 November 2021 with a plumber and arranged for an engineer to visit on 29 November 2021.
The representative states both assessments concluded the repairs were the responsibility of the landlord for the following reasons:
1. The stack/waste pipe servicing the resident’s property was in the neighbour’s property.
2. The cause of the leak was due to a corroded part of the pipe only being visible and repairable from the neighbouring property.
3. There was no water leakage or penetration behind the kitchen wall in the resident’s property as the kitchen sink and washing machine were correctly installed.
The representative stated in her stage two complaint to the landlord that they were not made aware by the landlord at the time of inspection in November 2021 of its assessment and only saw a cut out in the neighbour’s wall on the 27 November 2021, when taking the plumber to view the pipe and was given sight to photos via WhatsApp by the neighbour.
The representative emailed the landlord on 1 December 2021 to say they had not received the promised phone call from the landlord and had not received a copy of the report or site photos as promised. The representative requested a copy of the survey map for pipes and drainage pertaining to the block, or how a copy could be obtained.
The representative emailed the landlord on 5 January 2022 as she had not had a response to her email from 1 December 2021 and requested the landlord respond to her. The representative said they were expecting the contractor’s report along with the written recommendations.
The landlord in its stage two complaint response stated that due to the extent of the damage affecting the neighbour and to mitigate the damage, it arranged to create an opening in the neighbour’s property to access the pipe. This was done on 27 November 2021 and reiterated that the pipe served only the resident’s property. The landlord sent another repair request letter to the resident on 29 November 2021 to update her however the letter was addressed to the resident’s daughter.
The landlord in its stage two complaint response said that the effect the leak was having on the neighbour was very serious and it had a duty to prevent any further damage. It stated due to the time that would be taken by agreeing the responsibility for the repair the landlord said it carried out the repairs and to cover the cost of the works which would resolve the neighbour’s ingress problem and end the complaint. The landlord has confirmed it has completed the repair but not provided evidence of the date the repair took place.
On 11 May 2022 the representative complained to the landlord about the following matters.
Complaint regarding water ingress:
1. Following the last incident, the resident repaired and decorated the affected internal areas only for the water ingress to reoccur again on 5 October 2021.
2. The representative stated she had taken a builder to the property who on inspection determined the repairs were not to a good standard and there were gaps in the repointing and window frames.
3. She was waiting to finalise an insurance claim but was still waiting for the requested information from the landlord.
4. The representative was not kept updated during the repair process despite assurances from the landlord that she would be and had not received the photos and site report from the visit on 12 October 2021.
Complaint about responsibility for the waste pipe:
1. The resident had received a letter from the landlord to carry out repairs on the waste pipe serving the resident’s property but disputed this and said her concerns and request for further information including legal proof of responsibility were ignored.
1. She had made a Subject Access Request in December 2021 for all documents from the previous four months and had received very little information back.
The landlord issued an acknowledgement on 12 May 2022 and informed the representative a full response would be issued by 13 June 2022.
On 1 June 2022 a site visit was arranged with the maintenance manager and an inspection of the property showed no further water ingress was occurring. Additional work was arranged to apply storm dry brick sealer to the right-hand side external flank wall which was arranged to avoid any further issues. Damp meter tests showed the walls to be dry.
The landlord issued its stage one response on 13 June 2022 and in its response stated:
1. The complaint regarding the water ingress repairs from October 2021 was not upheld due to the repairs being completed and no further water ingress occurring. A further inspection had taken place on 1 June 2022 and there were no signs of water ingress, but the landlord would meet with its contractor on 14 June 2022 for a closer inspection and to rake out and re-run the mastic if required.
2. Upheld the element of the complaint regarding communication as the landlord agreed it should have contacted the representative and explained it was unable to provide the photos and reports requested. The photos were unable to be recovered from the member of staff’s phone and there were no written reports to provide.
3. Partially upheld the complaint about the responsibility for the waste pipe serving the resident’s property. It acknowledged the representative was not given the information she requested regarding responsibility for the waste pipe servicing her property under the terms of the lease but felt the contents of the complaint response provided the confirmation needed.
4. Apologised for visiting the resident despite being aware of the need to contact the representative first and advised that staff had been reminded and its IT systems updated.
5. Explained to the resident how the current insurance claim for the latest repair for the water ingress could be progressed.
The representative responded to the stage one response on 1 July 2022 to request the complaint be progressed to stage two. As part of the escalation request the representative said:
1. The complaint should not have been responded to by a member of staff that was named in the complaint. The representative stated that this made her feel the complaint had not been taken seriously.
2. During the meeting at the resident’s property on 1 June 2022, at the representative’s request, photos were taken on a mobile phone with agreement to forwards these onto the representative.
3. The landlord contacted the representative by email on 15 June 2022 asking her to call to arrange a suitable time for a contractor to redo the mastic sealant and further clean off any red stains on the windows. The representative called the landlord the next day and arranged for the work to be carried out but did not hear back from the landlord. On speaking with the resident, the representative understood the repairs may have been carried out on 28 June 2022 but there had been no confirmation from the landlord.
4. The contractor’s report regarding the waste pipe should have been sent to her and she was only made aware of the contractor’s recommendations and advice through the stage one complaint response.
5. Is contesting that the explicit and implicit terms of the lease for the responsibility for the property waste pipe would not pass the ‘reasonableness’ test under tenancy law.
The landlord issued the stage two response on 20 July 2022 and in the response:
1. The landlord agreed that the particular member of staff should not have been the responding officer due to being named as part of the complaint and that his line manager, or another senior officer, should have responded.
2. Having reviewed the stage one response, the concerns raised were investigated fully and without bias.
3. It did disclose all the information it held on file under the subject access request. The building maintenance manager advised that he did not recall a discussion with the representative regarding sending the pictures that he took but they were sent to the representative on 8 July 2022 and apologised for the delay.
4. Confirmed there was a delay in carrying the works agreed on 15 June 2022 to re-mastic the windows and complete a cleaning of red stains on the windows but that the works were completed on 28 June 2022.
5. Stated it would contact the resident in three months to confirm there was no further water ingress
6. Agreed it would have been helpful for it to provide a copy of the contractor’s report relating to the responsibility for the leaking waste pipe but that this information had been given to the representative during phone calls between 21 November 2021 and 29 November 2021.
7. Acknowledged it had written a letter to the resident’s sister rather than the resident regarding the waste pipe repair and apologised for this error.
8. The repair was completed by the landlord to avoid further damage to the neighbour’s property and would normally recharge the resident £69.69 for the cost of the works carried out to the leaking waste pipe but as parts of the complaint were upheld, it had waived the charge.
The representative has since advised the Ombudsman that a further leak occurred in January 2023.

Assessment and findings

Policies and Procedures

The fourth schedule, section two of the lease states the landlord is to repair, cleanse, uphold, support and maintain the exterior of the block.
Section three of the fourth schedule states the landlord is to repair, cleanse and maintain the exterior of the windows, window frames, window sashes and the glass therein to the flat and as often as may be necessary to replace the whole or part of the window frame, window sashes and window furniture.
The landlord is responsible for repairs to the structure and exterior of the property and is responsible for maintaining communal areas. There is no published repairs policy from the landlord, but it would be reasonable for a repair to be completed by the landlord within 28 days.
Section 3(i) of the lease states the resident is to keep the flat in good and tenantable repair and condition and to make good all damage occasioned whether to the flat or to any other part of the block caused by a stopping up, bursting, leakage or overflow of water or any other substance in or from the flat or any part thereof.
The landlord has a two stage complaints process. An acknowledgement of the complaint will be sent within two working days at both stage one and stage two. A response for stage one complaints will be issued by a service manager within 20 working days and a response to stage two complaints will be issued by a senior manager within 15 working days. If a response cannot be provided within these timescales the resident will be informed and told why.
The landlord has a discretionary compensation policy which follows the remedies guidelines issued by the Local Government and Social Care Ombudsman.

The landlord’s handling of repairs to a leak at the resident’s property.

The resident has stated in her complaint letters to the landlord that the impact of the water ingress has affected her mother’s health, whilst the Ombudsman understand the situation has caused the resident distress it is not the Ombudsman’s role to make a determination on matters such as the impact on health, as in a personal injury claim. These are matters that are more properly considered by the legal processes.
In accordance with its obligations set out in the fourth schedule, section two of the lease the landlord was required to investigate the resident’s reports of water ingress into the property and to put right any issues it identified which were its responsibility.
The landlord’s records show the repair was reported by the resident on 5 October 2021. The landlord arranged for an onsite assessment to be completed, and this was carried out on 12 October 2021 which identified the repairs required. Following this assessment the repairs were completed on 25 October 2021. The landlord responded to the repair request and completed the initial repairs within an acceptable timescale. Although the landlord considered the repair to be completed it decided to keep scaffolding in place to be able to monitor the repair in case of any further water ingress occurring.
The landlord by leaving the scaffolding up for four months to carry out inspections had an opportunity to check the repairs had been completed correctly and whether there were any other issues. Leaving the scaffolding up clearly showed its intention to do so however there is no evidence of any inspections taking place and the landlord confirmed it did not inspect the property during this period. This would not have helped resolve the resident’s ongoing concerns of reoccurrence. However, both the landlord and resident have confirmed there was no further reports of water ingress during that time.
The landlord visited the property on 1 June 2022 in response to the complaint and inspected the property for signs of further water ingress. The assessment was that there was no further water ingress occurring and damp meter tests showed the walls to be dry, but the landlord did agree to closer inspect the mastic in the windows and to try and clean red dust from the window frames.
In the stage two response the landlord also stated it would recontact the resident after three months to establish if the situation had changed. The landlord’s records show it emailed the resident on 16 September 2022 to ask if the water ingress had reoccurred and the representative replied on 19 September 2022 to confirm it had not reoccurred. This was an appropriate response by a landlord as it has addressed the repairs in a timely manner and took further steps to ensure no further re-occurrence had taken place.
The Ombudsman is not able to comment on the landlord’s response to the leak in January 2023 as this leak has occurred outside of the period under investigation. The Ombudsman has however made a recommendation, as set out at the end of the report, in order to help bring the matter to a close.

The landlord’s handling of the resident’s concerns about the responsibility for the waste pipe

When notified by the next-door neighbour of the leak the landlord responded by investigating the cause, it then notified the resident of its conclusions and asked for the resident, under the terms of the lease to carry out the repairs. That would be usual practice by the landlord. One letter issued by the landlord was incorrectly addressed to the representative’s sister, this did not cause a significant delay as the representative noticed the return address on the envelope and contacted her sister. The landlord apologised for its error.
The landlord discussed the issue over the telephone with the representative and notified the resident of its decision regarding responsibility for the repair. The landlord has acknowledged that its contractor’s findings were not sent to the representative at this time, in its complaint response. The resident questioned why a copy of the lease was not included in the letter informing the resident of the responsibility for the repair. In its complaint response the landlord provided a copy of the lease to the resident and explained how it had reached its decision.
As there was a dispute between the landlord and the resident regarding the responsibility for the repair, the landlord decided that to reduce the risk of further damage to its tenant’s property it would arrange for the repair to be completed. This was a reasonable and sensible decision by the landlord.
The resident has asked for copies of survey maps for pipes and drainage pertaining to the property. The landlord has advised the resident it does not hold copies of these documents so is unable to provide these to the resident.
The landlord has consulted with its Dispute Resolution and Compliance team and its view is that clause 3(i) of the lease along with the flat’s definition would confer liability for the pipework solely servicing the resident’s property on the resident even if access is obtained from a neighbouring property. Whilst this matter remains in dispute the landlord has considered its responsibility for the leak and in its response to the resident it advised them to seek independent legal advice which would be for the resident to decide if they wished to pursue this further.

The landlord’s handling of the associated complaint

The landlord’s complaint policy states a stage one response will be issued within 20 working days and a stage two response within 15 working days. These timescales are outside of the Ombudsman’s complaint handling code which recommends 10 working days for stage one and 20 working days for stage two.
The landlord’s complaint policy states that at the stage one response a service manager will investigate the complaint. The stage one acknowledgment stated the Deputy Manager for the Southern Area team would issue the stage one response. The stage one response was instead issued by the Area Housing Manager who in this case was named as part of the complaint being made. No explanation was given to the representative in the stage one response as to why the responding manager had changed.
Although elements of the complaint at stage one were upheld it is not appropriate for a member of staff named as part of the complaint to respond as it raises issues of transparency and potential bias in the decision.
During a complaint process the resident must feel they are being treated fairly. The landlord in its stage two response recognised the response was not handled by an appropriately senior member of staff and acknowledged that this would not have been the correct way for the complaint to have been investigated.
The stage two response was issued by a senior manager not related to the complaint or involved in the stage one response. This was in line with its complaints policy.
The resident has mentioned the lack of communication and a failure to send reports and phots as promised. The evidence does show that there is failure in the communication by the landlord as:
1. The landlord made a visit to the resident unannounced on 12 October 2021 despite being aware of needing to contact the representative.
2. Following the arrangement for repairs to be carried out on 16 June 2022, no further contact was had with the resident and the repairs carried out on 28 June 2022 without informing the resident of the new date or confirming the repairs were completed.
3. Following the water ingress repair scaffolding was kept up for follow up inspections but no inspections took place. There is no evidence of the landlord contacting the resident to provide any updates or reasons why.
4. When the report for the leaking waste pipe was completed by the contractor, the resident was not given a copy of the report despite being told she would receive a copy.
5. Sent a letter to the resident but addressed this to the wrong person.
Where a landlord recognises a service failure the Ombudsman will then consider whether it has taken action to put things right. In this case the landlord acknowledged it should have been more proactive in post inspecting the external works for water ingress rather than waiting for contact from the resident. The landlord apologised to the resident, inspected the property in June 2022 and agreed to contact the resident after three months to confirm there was still no further water ingress. The landlord did this on 16 September 2022 and the representative confirmed there had been no further water ingress.
The landlord agreed with the resident that the complaint at stage one should not have been responded to by a manager named in the complaint. The landlord apologised to the resident and the stage two response was issued by an impartial member of staff. It reviewed the stage one response and concluded the stage one response showed no bias in its conclusions. In the stage two response the landlord showed it had learned from this and stated all future complaints would be seen by a senior member of staff and allocated to an appropriate person to issue the response.
The landlord agreed it would have been beneficial for the resident to have received a copy of its contractor’s report regarding the responsibility for the waste pipe. It did however speak with the resident between 21 November 2021 and 29 November 2021 to inform the resident of its contractor’s assessment and by a letter received by the resident on 27 November 2021. A copy of the lease was provided to the resident during the stage two response.
The landlord acknowledged that the letter sent to the resident on 29 November 2021 was incorrectly addressed to the wrong person. It apologised for this error.
The landlord made the decision to complete the repair to the waste pipe to avoid any further damage to its tenant’s property and waived the charge that would have been paid by the resident.
The decisions and actions taken by the landlord in response to the complaint are considered reasonable redress to the failures and shortcoming identified in the complaint. The landlord has apologised for these actions and has demonstrated how it will learn from this complaint.

Determination (decision)

In accordance with paragraph 53b of the Housing Ombudsman Scheme, the landlord has offered redress prior to investigation which, in the Ombudsman’s opinion, resolves the complaint about the landlord’s handling of repairs to water ingress at the resident’s property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of establishing responsibility for pipework serving the residents property.
In accordance with paragraph 53b of the Housing Ombudsman Scheme, the landlord has offered redress prior to investigation which, in the Ombudsman’s opinion, resolves the complaint about the landlord’s handling of the associated complaint.

Reasons

The landlord did not monitor the repair following the initial repair being completed as intended but this did not affect the outcome of the repair or cause any further water ingress. It inspected the property during the complaint process, carried out some additional work where identified, and reviewed the status of the repair with the resident as agreed. It failed to provide the reports and photographic evidence when originally requested by the representative. However, the landlord did provide photographs from the visit to the resident’s property in June 2022. The landlord has acknowledged these issues in its complaint response and offered an explanation for why some reports and photographs were unable to be provided and apologised to the resident.
The landlord took appropriate action to investigate the cause of the leak. Once it established the leak was in the pipe serving the resident’s property, The representative was given an explanation at the time about the repairing responsibilities. The landlord recognised that the dispute over responsibility would delay the repair being completed and took appropriate action to complete the repair at no additional cost to the resident.
The stage one response should not have been issued by a service manager named in the complaint. The landlord recognised this in its stage two response, apologised to the resident and has stated all future stage one complaints will be seen by a senior member of staff to ensure they are responded to by the appropriate officer. The landlord accepted and apologised for this failure, and it demonstrated it learned from the complaint

Recommendations

The representative has notified the landlord of a reoccurrence of the water ingress in January 2023. If not already done, the landlord should undertake a comprehensive assessment of the water ingress in order to determine its cause. The landlord should write to the resident to confirm the outcome within two weeks. Where works are identified the landlord should set out a timeline for providing a remedy to resolve the water ingress.
The landlord reviews its complaint handling policy in relation to housing complaints to ensure compliance with the Ombudsman’s complaint handling code.
If the landlord holds any documents or reports not yet issued to the resident in relation to the waste pipe serving the property to issue these to the resident.