Brighton and Hove City Council (202307092)

REPORT

COMPLAINT 202307092

Brighton and Hove City Council

12 April 2024

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 handling of:
   1. The resident’s reports of a leak coming from the property above.
   2. The communication on its process regarding the resident’s insurance claim.
   3. The associated formal complaint.

Background

2. The resident is the assured tenant of the property, a flat in a building owned by the landlord. He has lived there since 2010.
3. In late August 2022, the resident reported a leak into the property from the flat above to the landlord. The records do not state whether the flow was constant or intermittent. Its contractor attended that day but could not find the source of the leak. He reported the leak on several occasions in early September 2022. On 16 September 2022, the landlord disconnected the water to the property above. It also disconnected electrical sockets in the resident’s kitchen and screwed batons to his ceiling to prevent collapse. After this visit, it commissioned an asbestos survey for the property which found potentially hazardous asbestos containing material (ACM) in the kitchen ceiling. It arranged an appointment in November 2022 to carry out works, but the resident was not present to grant access on the day. 
4. The resident submitted an insurance claim for approximately £13,000 in January 2023 to cover the costs of buying and laying new wooden flooring, redecorating and recarpeting. He complained formally to the landlord on 9 March 2023 about the way it had handled his reports of leaks and the fact that it had not acknowledged or processed the insurance claim.
5. In its response of 21 March 2023, the landlord apologised for failing to reschedule the missed appointment in November which meant that it had not attended since then. It said it would carry out any required works including checking and removing any ACM, treating for mould and restoring the electrics as soon as possible. It told him to contact its housing insurance claims department about his insurance claim.
6. The resident was not satisfied with this response and asked to escalate his complaint to stage 2. The landlord wrote to him a week later and again told him to contact the insurance claims department. It wrote on 10 May to state that there had been no progress with the claim and again on 24 May 2023 to state that it could not it could not provide a stage 2 response as he had an outstanding insurance claim.
7. The resident contacted the landlord on several occasions in 2023 asking it to update him about his claim. The works on the property continued after the resident had asked this Service to investigate in May 2023. He said he wanted a thorough redecoration and a fair resolution to his insurance claim. On 21 November 2023, the landlord offered the resident £3,397.46 to settle the claim. The resident was unhappy with this offer and asked this Service to investigate.

Assessment and findings

Scope of investigation

8. The resident has said that the condition of the property has had an impact on his health.  This Service is unable to establish a causal link between reports of the health issues experienced by complainants and the actions of landlords. He may wish to seek legal advice about this, as a personal injury claim may be a more appropriate way of dealing with this aspect of his complaint. Nonetheless, we have considered the general distress and inconvenience which these events may have caused.
9. The resident also disagrees with the sum offered to him by the landlord to settle his insurance claim. This Service cannot investigate insurance claims as they are beyond our jurisdiction: the insurance company is a separate organisation, and the landlord is not responsible for the insurer’s actions. In this report, we have only considered the question of the landlord’s communication with the resident about the claim process and whether it reasonably advised him about the cause of delays.

The resident’s reports of a leak coming from the property above.

10. The landlord’s repairs policy says it will attend and carry out emergency repairs within 24 hours. Emergency repairs include serious water leaks. The policy says it will complete routine works within 20 working days. These repairs include washing down walls with anti-fungal wash.
11. This Service’s spotlight report on damp and mould (published October 2021) provides recommendations for landlords which include adopting a zero-tolerance approach to damp and mould interventions.
12. The landlord has a responsibility under the housing Health and Safety Rating System (HHSRS), introduced by The Housing Act 2004, to assess hazards and risks within its rented properties. Damp and mould growth and asbestos are potential hazards and therefore the landlord is required to consider whether they amount to a hazard that may require remedy. Any unsafe asbestos containing materials (ACM) must be encapsulated (made safe) or removed.
13. It is not entirely clear when the resident first reported the leak to the landlord. In his formal complaint to the landlord, he stated that he first became aware of the leak on 26 August 2022 when he saw water coming through his kitchen ceiling and first contacted the landlord on 30 August 2022. He said 50 litres of water a day came through the ceiling for 3 weeks. The landlord visited the property above on 31 August 2022 but could not identify the cause of the leak and did not stop the flow. On the evidence, the water continued to flow into the resident’s property for more than 2 weeks.
14. It is not clear exactly how much water entered the property and for how long it did so. The resident said approximately 50 litres of water came through the ceiling a day for over 3 weeks. He has provided photographs of the leak and its aftermath. This Service treats such evidence with some caution because it is not possible for us to independently verify the location and timing of the photographs, or the validity of the images themselves. Nonetheless, the images appear to show that there was a substantial amount of water and the damage caused was considerable. They show mould, corrosion, heavy drips and that the wooden floor was severely warped. The landlord’s repair logs also refer to an “uncontainable” leak and later to a “catastrophic” leak between 31 August 2022 and 16 September 2022.
15. This evidence, taken together with the other evidence of the required works – mould washes throughout, replastering of ceilings and disconnection of electric sockets, supports the resident’s account of a significant leak. There is no indication of the landlord responding to the resident’s reports in an appropriate or reasonable manner or in line with its policy.
16. Once the leak had been stopped, the property required repair. As is stated above, the landlord carried out some repairs on 16 September 2022. On its next visit, on 20 September 2022, it identified potential asbestos containing material (ACM) in the kitchen. It arranged for this to be tested. This was later made safe and/or removed.
17. The landlord visited the property on 18 November 2022. It found that the plastered wall surfaces were dry but that there was evidence of mould. It therefore arranged for this to be treated. However, thereafter, there was a delay in the works for several months.
18. In its stage 1 complaint response of 21 March 2023, the landlord partly upheld the resident’s complaint on the basis that, having failed to gain access to the property in November 2022, its contractor failed to inform the landlord of this which meant the landlord did not book another visit until March 2023. It did not, in fact, attend, until June 2023.
19. The records show that, from March 2023 onwards, the resident sometimes refused to allow workers access to the property. On 28 March 2023, he refused to allow an appointment to deal with the asbestos to go ahead. The landlord could not deal with other repair issues until the asbestos had been removed. The works were therefore put on hold.
20. The landlord attended the property on several occasions such as on 26 May 2023 when it disconnected the light fitting and the carbon monoxide alarm in the kitchen ceiling to allow for replastering. However, there were several occasions when the resident refused to allow operatives entry to the property. For example, on 29 November 2023, he refused to admit a plasterer as he was unhappy with the offer of compensation from the landlord’s insurers. On 1 December 2023, the plasterers attended again, and the resident told them he had cancelled the appointment.
21. While this Service appreciates the frustration that the resident must have felt at the time, when making our findings, we must consider that these actions delayed the repairs and were not the fault of the landlord. We have, therefore, reduced our order for compensation for the delays that took place, in line with our guidance on remedies.
22. Overall, the landlord’s handling of the repairs was inadequate and did not comply with its guidance on repairs. However, the resident’s actions contributed to this delay. The landlord did not make an offer of compensation for its failures in the stage 1 complaint response. This Service has made an order for compensation but, in line with our guidance, the amount ordered has been reduced because the resident’s actions contributed to the delay.

Communication on the insurance claim

23. The landlord has explained the reason for delays in insurance claims in 2023. It says it took over the management of repair insurance claims from the local council in mid-2022. It was ill-prepared and under-resourced for this task which caused a backlog to develop in early 2023 when the resident made his claim. The landlord brought the matter under control later in 2023 but it is clear that the insurance claim was not under consideration for a considerable period.
24. There was, on the evidence seen, a delay of approximately 6 months while the resident’s claim sat in limbo. During this time, the landlord’s communications with the resident about the insurance claim were inadequate. It did not tell him about the delays in its complaint response in March 2023 but advised him to contact the insurance department himself. When he later asked for the details to do so, in April 2023, it did not provide them. It wrote to him on 10 May 2023 to tell him it had not yet considered his claim as it was developing new and consistent processes. It told him it would respond to him as soon as possible. It did not do so until November 2023. By any standards, this was inadequate communication.

The associated formal complaint

25. The landlord’s policy on complaint handling states that it should not handle complaints under its corporate complaints process when they “involve an insurance claim”. However, the policy accepts that “there may be aspects of the complaint that could be investigated concurrently”.
26. This Service’s guidance on complaints involving insurance issues states that complainants should be able to raise a formal complaint while making an insurance claim, particularly if they have raised additional issues. Vitally, the statutory Complaint Handling Code (the Code) requires landlords not to exclude complaints unreasonably. A landlord should, therefore, clearly explain which issues can be considered through its complaints procedure and which will be handled by its insurers.
27. In this case, the resident complained about 2 matters: delays in carrying out repairs and the delay in processing his insurance claim. The landlord refused to provide a stage 2 complaint response for either.
28. However, while the landlord was correct to say that its policy put matters involving the insurance claim itself beyond the remit of the complaints process, it was wrong to state, without any consideration of the facts, that it could not investigate other elements of the complaint. Its own policy said this would be possible and the Ombudsman’s dispute resolution principles, together with our insurance cases guidance, indicate that it would have been appropriate. The guidance states that the reason for refusing to handle complaints about insurance claims is that “it is possible that any admission or acceptance by the landlord of being at fault could invalidate any claim being processed by its insurer”. While this would justify refusing to look at the facts around the insurance claim, it would not justify refusing to consider matters such as delay after the leak had occurred, particularly as the landlord had already given its stage 1 response without raising this matter. 
29. Further, the landlord did not tell the resident that it would not escalate his complaint until May 2023 which was significantly outside its standard response timeframe. It should, at least, have told him it would not reply earlier to allow this Service to investigate sooner.

Determination

30. In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of:
    1. The resident’s reports of a leak coming from the property above.
    2. Communication on its process regarding the resident’s insurance claim.
    3. The associated formal complaint.

Orders and recommendations

Orders

31. Within 4 weeks of the date of this decision, the landlord must provide the resident with:
    1. An apology for the failures identified in this report.
    2. Compensation of £700 which is broken down as follows:
       1. £300 for failures in handling the resident’s reports of leaks.
       2. £200 for delays and poor communication in processing the resident’s insurance claim.
       3. £200 for its handling of the associated formal complaint.

Recommendations

32. In completing its self-assessment, as required by the Code, the landlord should strongly consider amending its complaint handling guidance to ensure that it does not wrongly exclude complaints in future.