City of Westminster Council (202310687)

REPORT

COMPLAINT 202310687

Westminster City Council

24 October 2024 (amended at review)

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 leaks into his property from an upstairs neighbour.
   2. The subsequent damage and its offer of compensation.
2. The Ombudsman has also considered the landlord’s complaint handling.

Background

3. The resident is a secure tenant of the landlord. The landlord is a local council. This is a 3-bed, fourth floor flat in a block. There are long term health vulnerabilities recorded on the resident’s tenancy agreement. The resident reports that he has a heart condition and epilepsy.
4. On 11 January 2023, the resident reported an “uncontrollable” leak coming into his property. The landlord’s contractor attended the same day and noted that the leak was coming from the flat above. It tried to gain access to the flat above but was unsuccessful. It noted that a new job would need to be raised for a plumber to gain access to check for leaks and carry out any repairs.
5. On 12 January 2023, the landlord’s surveyor raised a job order to inspect the flat above. The landlord’s contractor attended both the resident’s property and the flat above on 20 January 2023. It could find no leaks, and the resident confirmed the leak had stopped and he had just been left with marks on the kitchen and bathroom ceiling. He asked for these to be redecorated.
6. The resident reported several further leaks from the flat above from 6 February 2023 until 9 March 2023. He also reported that his bathroom and toilet tiles were damaged due to the leak.
7. On 16 March 2023, the resident submitted a stage 1 complaint to the landlord. He said the following:
   1. He had a leak into his property since January 2023, and this had not stopped dripping into his kitchen, bathroom and toilet.
   2. His upstairs neighbour was not giving access, and the landlord only called the neighbour after the resident had telephoned the landlord the previous day. The neighbour had told the landlord he was out of the country and would not be available until 28 March 2023, but the resident had heard the neighbour upstairs in his flat.
   3. He wanted the landlord to take action to stop the leak.
8. The landlord gained access to the neighbour’s flat on 28 March 2023. It repaired the leak, which was coming from drainage pipes underneath the neighbour’s bathtub.
9. The landlord responded to the resident’s stage 1 complaint on 29 March 2023. It said the following:
   1. Its procedure in relation to ‘no access’ or ‘refused access’ to properties is that it will pursue an injunction if there are 3 consecutive incidents of no access for scheduled appointments, following written notification. Following this, it would refer cases to its legal team who would pursue an injunction.
   2. The process above was not followed as most jobs the resident raised were dealt with as emergency or immediate jobs. The contractors simply attended as soon as possible, and did not schedule appointments, which then resulted in them being unable to gain access (to the upstairs flat).
   3. The leak upstairs was attended to and rectified on 28 March 2023.
   4. The landlord had attended the resident’s property on 13 March 2023 to inspect the damage, but as the leak was still active, it could not proceed with remedial works. It had raised a job to carry out a new inspection on 13 April 2023, so it could proceed with the works.
   5. It had passed its concerns regarding the upstairs neighbour to the housing officer.
   6. It partly upheld the complaint. It could not discuss actions of other residents but accepted that the repeated access issues caused by the works orders being raised as emergencies, had been inadequately monitored, causing an error in the management of the repair.
   7. It apologised and offered the resident £50 compensation for the delay in remedying the leak, due to its failure to identify 3 consecutive no access instances.
10. On its inspection of 13 April 2023, the landlord ordered mould washes and decoration to airing cupboards in the entrance hall, the toilet, and kitchen ceiling to be redecorated.
11. The resident submitted a stage 2 complaint on 18 April 2023. He said that during a recent inspection, the landlord had told him that it would not replace or repair the tiles in his property. He said these had been damaged, through no fault of his own and would cost hundreds of pounds to repair or replace. He said the damage to the tiles had been exacerbated by the time it took the landlord to resolve the leak. He asked for the landlord to return the property to the state it was in before the water damage, including repairing or replacing the tiling.
12. The landlord responded to the resident’s stage 2 complaint on 2 June 2023. It said the following:
    1. It reiterated its stage 1 response.
    2. It would not be replacing or repairing the tiles as these were the resident’s own tiles. It had not consented to the resident installing his own tiles but gave retrospective permission. The landlord made it a condition of consent that when residents replaced tiles, they are responsible for sourcing any replacement materials.
    3. The tiles were grouted/bonded to ply. The panel itself did not seem to be damaged and the repair could likely be carried out without the need to replace any tiles as the panel just needed securing.
    4. It made a provisional appointment for 16 June 2023 to assess the area in question.
    5. It apologised for the delay in providing a stage 2 complaint response within its published timescales and awarded a further £20 in recognition of this. (This was a total of £70, including the £50 offered at its stage 1 response).
    6. It partially upheld the complaint as it is responsible for making good, damaged areas following a repair and it should have raised the appropriate orders to address this.
    7. It had learned from the resident’s complaint and identified service improvements around how it recorded and flagged “no access visits” against high priority orders, so it could promptly identify these in addition to outstanding works.

Post internal complaints procedure

13. The resident cancelled the mould wash and decoration works on 26 June 2023, as he advised the landlord, he had carried out the renovations himself.
14. The resident complained to this Service on 24 June 2023. As an outcome to his complaint, the resident would like compensation for the delays to rectifying the leak, compensation for the money he spent on decorating his home and for the landlord to speak to his upstairs neighbours about their behaviour towards him.

Assessment and findings

Scope of Investigation

15. The resident has stated that the landlord should be liable for the damage to his property. While we appreciate the resident’s frustration, this Service can not decide whether the landlord is liable for damage. Liability is a legal issue, which would need to be determined using legal avenues. This investigation will focus on how the landlord handled the original reports of a leak, the subsequent visits to repair and the later request that it cover the costs of damage caused.
16. The resident has stated that the landlord’s handling of the neighbour’s behaviour has caused him distress and inconvenience. While we understand the resident’s distress, this Service cannot investigate the landlord’s handling of the neighbour’s behaviour towards him. This is because this has not been investigated through the landlord’s internal complaints process. Paragraph 42. a. of the Scheme states that we may not investigate complaints which are made, prior to having exhausted a landlord’s complaints procedure.

The landlord’s handling of the resident’s reports of leaks into his property from an upstairs neighbour

17. It was appropriate that the landlord’s contractor attended on the same day, when the resident reported a leak coming into his flat from the flat above. It acted within its repairs policy, which states that it will attend to immediate jobs within 2 and 24 hours. The landlord responded within its published time scale. It was also appropriate that the contractor attempted to access the flat above to attempt to remedy the issue, and that it then raised a new job for a plumber to gain access to the flat above.
18. It was further appropriate that it visited the flat above on 20 January 2023. It was further reasonable that it did not carry out any further works on this date, as it could not see a leak and the resident had confirmed that the leak had stopped.
19. It was further appropriate that when the resident reported a further leak on 6 February 2023, that the landlord’s contractor attended the same day.
20. However, it was inappropriate that when the landlord’s contractors were unable to gain access to the flat above on 6 February 2023, the landlord did not call or write to the upstairs neighbour to request access to identify the issue or carry out any repairs. It did not raise any subsequent jobs to inspect the flat above, and this is a failing on the part of the landlord. This caused the resident distress and inconvenience and impacted on the enjoyment of his home, as the leak persisted and continued to damage his property.
21. It was reasonable that when the resident reported the leak again on 9 and 10 February 2023, that the landlord’s contractor attended on both days. However, as it was unable to gain access to the flat above, it would have been appropriate for the landlord to contact the upstairs neighbour to request access to carry out the repair.
22. The landlord’s repairs policy (in its tenant handbook) states that residents are responsible for providing access at reasonable times for repairs or inspections to be carried out. It states that it can take legal action if residents do not provide access when reasonably requested. Had the landlord attempted to contact the neighbour sooner to request access, the repair may have been carried out significantly quicker. The fact that it did not, caused the resident distress, anxiety and continued to impact on the enjoyment of his home. The leak was ongoing, and this continued to damage the resident’s property, exacerbating his distress and anxiety.
23. The records show that the landlord’s contractors attempted to access the upstairs property on a further 3 occasions from 15 February 2023 until 6 March 2023. Although it was reasonable that it did so, had the landlord contacted the upstairs neighbour in a timely manner, its contractors could have accessed the property and attended to the leak much sooner.
24. The landlord’s contractor was not able to carry out the repairs to the upstairs plumbing until 28 March 2023 and this is an unreasonable delay for the resident. He had a constant leak affecting his flat from 6 February 2023 until 28 March 2023 and this compounded the damage to his flat from the leak.
25. Although the landlord has acknowledged its failings in not writing to the neighbour to request access, it failed to consider the adverse effect on the resident and its offer of redress was not proportionate to the detriment suffered by the resident.
26. The landlord’s compensation policy offers discretionary compensation of up to £250 for low impact failings and offers between £250 and £700 for medium impact. It offered only £50, despite the stress and anxiety caused to the resident. Further, it did not take into consideration the resident’s vulnerabilities, despite having a note of the health issues on record. This is contrary to its vulnerable resident’s policy. It did not consider the serious impact on the resident; this is a failing on the part of the landlord and evidence that its response was not resident focussed.
27. Due to the above, a finding of maladministration is made along with orders for redress.

The landlord’s handling of the subsequent damage and its offer of compensation

28. The landlord’s repairs policy states that residents are responsible for their own internal decorations, however where decorations have been damaged as a result of repairs or improvements it carries out, the resident will be offered the choice to have a contractor carry out the works or be offered decoration vouchers.
29. It was appropriate that the landlord offered to carry out decoration works further to the leak damage. This was in line with its policy and demonstrates a willingness to put things right. However, it is unclear why the resident was not offered the option of decorating vouchers to carry out the works himself, as per the landlord’s policy.
30. Further, the landlord offered no compensation for the damage to the resident’s property or the distress and inconvenience and impact on the enjoyment of his home for a period of 5 months. This caused the resident distress and frustration and impacted on the landlord/resident relationship.
31. The landlord’s tenant handbook strongly advises residents to take out their own contents insurance. It offers an option of an organisation it partners with, and encourages residents to shop around.
32. The landlord’s repair policy (within the tenant handbook) states that if residents’ decorations are damaged because of a flood caused by another resident, it will be the resident’s own responsibility to make good the damage. This is not covered by the landlord’s buildings insurance.
33. The landlord’s public liability insurance states that if a loss is caused by landlord negligence, the law says it must put things right. Claims must show that:
    1. The landlord had a responsibility.
    2. The landlord failed to meet that responsibility and/or was negligent.
    3. Loss or damage was caused as a result.
34. It advises residents to contact it as soon as possible if they believe they might have a claim.
35. The landlord provided the resident with details of its public liability insurance; which was appropriate.
36. However, in its complaint responses there is no evidence that it advised the resident to contact his own contents insurance provider to submit any claims for damages. This is contrary to its compensation policy, which states residents should be advised of the correct insurance routes when making claims for personal belongings. This is a failing on the part of the landlord and is not resident focussed.
37. Due to the above, a finding of service failure is made, along with orders for redress.

The landlord’s complaint handling

38. The landlord’s corporate complaints policy states that it will respond to stage 2 complaints within 20 working days.
39. The landlord informed the resident it would need an additional 20 working days to provide its response, which was appropriate.
40. It took the landlord 31 working days to respond to the resident’s stage 2 complaint, which was one day over the timescale allowed. It offered £20 compensation for this, which the Ombudsman considers reasonable for a short delay of this nature.

Determination

41. In accordance with Paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of the resident’s reports of leaks into his property from an upstairs neighbour.
42. In accordance with Paragraph 52 of the Scheme, there was service failure in the landlord’s handling of the resident’s reports of the subsequent damage and its offer of compensation.
43. It has also been determined that in accordance with Paragraph 53 of the Scheme, the landlord made an offer of redress in relation to its complaint handling that was sufficient to put things right.

Orders

44. Within four weeks of this report, the landlord is ordered to:
45. Apologise in writing to the resident for the failings identified in this report.
46. Pay the resident £550 for the following:(This replaces its original offer of £70):

1. £350 for the time, trouble, distress and inconvenience in pursuing the leaks into his property from an upstairs neighbour.

2. £200 for the distress and inconvenience in pursuing the subsequent damage and the offer of compensation.

47. Review the failings identified in this report, paying specific attention to the following:
    1. The no access procedure.
    2. Provide an action plan which includes staff training to prevent a recurrence of these failings.