Clarion Housing Association Limited (202222421)
REPORT
COMPLAINT 202222421
Clarion Housing Association Limited
22 December 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 the level of compensation offered by the landlord following a wastewater leak into the resident’s home.
Background
- The resident is an assured tenant of the landlord at the property which is a three-bedroom flat on the ground floor.
- The resident originally reported a leak into the property on 31 December 2020. The landlord inspected the property on 14 January 2021 and confirmed that the leak was coming from the toilet drain valve from the property above. The resident also reported damp and mould within the property on 17 May 2021.
- The resident contacted the landlord again on 1 June 2022 to report a leak and damp and mould in the property. The resident made reports of a constant leak and a foul smell throughout the property on 9 June 2022. The landlord attempted to attend the property the next day but was unable to gain access.
- On 14 June 2022, the resident contacted the landlord’s out-of-hours service to report an uncontainable leak running down the bedroom walls. The landlord attended the property the following day to complete the required repairs. The contractors had to stop the work before completing the repair as they believed that the materials surrounding the stack pipe may contain asbestos. The contractors isolated and sealed the bedroom as a safety precaution.
- On 16 June 2022 the resident raised a complaint about the continuous leak into the property and explained that:
- The leak had been ongoing for many months
- The landlord attended multiple times to deal with the leak, but the leak had not been resolved
- The affected bedroom was uninhabitable, due to the leak causing damp, mould, and flies in the bedroom
- The resident wanted a sufficient level of compensation to replace the damaged carpet and furniture
- The landlord provided a stage 1 response on 9 August 2022. It upheld the complaint and explained that:
- The soil stack and boxing-in materials in the bedroom tested negative for asbestos
- The delay in repairing the leak was due to:
- Waiting for the asbestos test result
- Not being able to start the works as scheduled on 4 August 2022, due to inability to access the property.
- Any further damage to the resident’s property would be addressed once the leak had been repaired
- The landlord was unable to compensate the resident for personal damages and explained the process for claiming on its liability insurance policy
- The landlord acknowledged its delay and apologised to the resident for having to make repeat contact and for the inconvenience caused
- The landlord awarded the resident £400 compensation.
- The resident escalated the complaint to stage 2 of the complaints process on 11 August 2022, as she was dissatisfied with its stage 1 response. The resident explained:
- The landlord failed to acknowledge its lack of action overall
- The resident had been sleeping in the living room for three months, due to the condition of the bedroom
- The damp and mould had caused the resident to suffer from a chest infection
- The landlord had not rectified several property issues despite multiple visits and promises
- The £400 offer of compensation was unacceptable
- The level of compensation offered should cover the costs required to replace furniture and reflect the level of stress and inconvenience that had been caused.
- The landlord provided its stage 2 response on 16 August 2022. It partially upheld the complaint and explained that:
- The leak that affected the bedroom was due to a defective communal soil pipe.
- There had been a change in area management during this repair issue.
- The landlord was unable to comment on the reason for delays before the change in area manager, as it could not access all the repair history due to issues with its system.
- The landlord’s stage 1 complaint response only cited the reason for delays that were known at that time. It apologised that its stage 1 response failed to explain that it could not review the full timeline of events due to issues with its system.
- The landlord repaired the leak on 11 August 2022 and agreed to replace the carpet and redecorate the room as a goodwill gesture.
- The landlord agreed to remove the furniture affected by the leak and dispose of it, subject to the resident signing a disclaimer stating that the landlord is not responsible for the replacement or reimbursement of the disposed items. The resident signed this disclaimer on 23 August 2022.
- The landlord arranged for a contractor to conduct an environmental cleaning of the bedroom and dispose of the affected furniture on 16 September 2022.
- After the environmental cleaning and disposal had been completed, the landlord planned to arrange a further appointment to proceed with the works required in the bedroom, relating to the damage caused by the leak.
- In addition to the compensation awarded at stage 1, it agreed to compensate for three months’ loss of the bedroom.
- In recognition of the issues, loss of the bedroom for three months and service failures identified the landlord offered the resident a total of £1012.47 in compensation, inclusive of the £400 awarded at stage 1.
- The landlord provided a follow-up and final response on 20 December 2022. It explained that:
- The landlord completed most work relating to the damage caused by the leak on 20 October 2022.
- Renewal of the bedroom carpet was due to be completed on 4 January 2023, however, the bedroom was usable in the meantime.
- The landlord recognised that the bedroom flooring may be cold and less comfortable in the meantime, and it apologised for this inconvenience.
- A further £100 in compensation was awarded.
- The resident contacted this service on 17 January 2023 as she was dissatisfied with the level of compensation offered by the landlord.
Assessment and findings
The landlord’s handling of a wastewater leak into the property.
- In June 2022, the resident reported an emergency leak, damp, mould, and a foul smell throughout the property. Most of the required repairs were completed by 20 October 2022 and were fully completed on 4 January 2023.
- The landlord’s repairs and maintenance policy says that any emergency repair should be attended to within 24 hours and works to make the situation safe should be completed at this visit. Further repairs may then subsequently be required.
- The landlord attended the property within 24 hours of the emergency leak being reported. The landlord identified that the materials surrounding the leak may contain asbestos so the works were stopped, and the bedroom was isolated and sealed whilst the materials could be tested for asbestos.
- The landlord requested an asbestos test on 15 June 2022, which was the same day that it attended the property to stop the emergency leak. The landlord could not undertake any repairs whilst it was awaiting the outcome of the asbestos test for safety reasons. The results from the asbestos test were provided on 13 July 2022 confirming that the materials surrounding the leak did not contain asbestos.
- In the Ombudsman’s opinion the landlord’s response to the emergency repair was appropriate. It was reasonable for the landlord to request an asbestos test on materials which may contain asbestos to ensure the safety of the resident and its staff. The requirement for an asbestos test caused a one-month delay in the repair, however, this delay was not avoidable.
- The landlord took the following actions to complete the required repairs:
- 4 August 2022 – The repairs were scheduled to start on this date; however, the landlord was unable to gain access to the property. This caused a further delay of one week.
- 11 August 2022 – The landlord attended the property and repaired the soil stack pipe.
- 16 September 2022 – A contractor disposed of the affected furniture and completed an environmental cleaning of the bedroom.
- 20 October 2022 – The landlord redecorated the bedroom to remedy the damage caused by the leak.
- 4 January 2023 – The landlord replaced the bedroom carpet.
- In the Ombudsman’s opinion (following receipt of the asbestos report) the landlord’s handling of the wastewater leak was inappropriate. It is good practice for landlords to aim to complete all repairs within a reasonable time. What is a reasonable time depending on all the circumstances of a case, including the need and vulnerability of the residents. It must also factor in any delays that are outside the landlord’s control.
- Upon inspection of the actions taken by the landlord, after the asbestos report had been received, we have identified that there was approximately a delay of one month between each job that was completed. No supporting evidence was provided to explain the delay between jobs. Added together the time in between repair appointments caused a delay of four and a half months (excluding one month waiting for the asbestos test results), which is not acceptable.
- In the circumstance that a repair is extensive and will require multiple jobs, it is reasonable to expect the landlord to schedule the appointments promptly. If the appointments for the resident’s repair took place one week after each other the repair would have been fully completed in just over one month instead of the four and a half months that it took. This is important because the sooner that a repair is completed the less it should adversely affect a resident.
- Within its stage 2 complaint response dated 16 September 2022, the landlord offered the resident £612.47 in compensation for the loss of the bedroom for 3 months. The resident reported the leak on 1 June 2022, which means that the landlord’s offer of compensation covers the loss of the bedroom from 1 June 2022 to 31 August 2022. The leak and associated repairs were fully completed by the landlord on 4 January 2023. This means that 1 October 2022 to 4 January 2023 had not been accounted for within the compensation previously offered by the landlord.
- The Ombudsman’s guidance on remedies says that redress should, as far as possible, put a resident back in the position they would have been in had the failures not occurred. The level of compensation offered by the landlord was not appropriate.
The level of compensation offered.
- The resident was dissatisfied with the level of compensation offered by the landlord as it did not cover the cost of her damaged furniture or truly reflect the stress and inconvenience this situation had caused.
- The landlord’s refusal to compensate the resident for her damaged furniture was in accordance with its compensation policy. Clause 19(ii) of the resident’s tenancy agreement says that the resident is responsible for the replacement of all furniture which may be damaged or destroyed during the tenancy.
- The landlord advised the resident that she may claim for her damaged possessions against her home insurer. If she believed that the landlord was negligent then she could claim against the landlord via its insurer. The landlord provided the resident with guidance on how to make a claim against its insurer, which was appropriate.
- Supporting evidence was provided to show that the leak was coming from a defective communal soil stack pipe, which means that wastewater was leaking into the resident’s property.
- The Ombudsman notes, however, that the landlord was bound by s.11(1)(a) of the Landlord and Tenant Act 1985 to ensure that the drains were in repair. Under s.11(1A)(a) of the Act, this extends to the building in which the landlord has an estate or interest. This would include the common parts. It is important to note that a landlord does not need notice of a relevant defect where the disrepair is located outside the resident’s home. The Supreme Court in Edwards v Kumarasmy made it clear that where the defect arises in a common part retained by the landlord or where he has an estate or interest in that part of the property, he will be on notice as soon as the defect exists. On that basis, the landlord was responsible for preventing water from pouring into the resident’s home from 31 December 2020. It reasonably knew of the issue from then and if it failed to prevent water from coming into the resident’s home from that point, and that water damages her goods, it would be fair in all the circumstances for the landlord to be responsible for the damage. That is similar to the position in s.4 of the Defective Premises Act 1972.
- The resident also complained about flies and a foul smell throughout the property. The nature of the leak had a detrimental impact on the resident as it is much more unhygienic living with a wastewater leak in comparison to a rainwater or clean water leak.
- On this basis, the Ombudsman finds that the landlord ought to be responsible for contributing to the resident’s damaged household goods. It can, if it wishes, refer the question to its insurer. If the insurer declines the claim, then the landlord will still be responsible for paying this, for the reasons stated.
- As regards the compensation for the distress and inconvenience caused; It is the Ombudsman’s view that the landlord did not give enough consideration to the nature of the leak and the full impact that this had on the resident. This reflects poorly on the extensive delay that there was to fully complete the repair. No supporting evidence was provided to show that the landlord attempted to prioritise the repair and complete it urgently due to the nature of the leak.
- Lastly, the Ombudsman considered the resident’s allegation that she suffered chest infections and illness. In claims for personal injury, the courts usually rely on medicolegal reports which set out a diagnosis and prognosis – together with how the injury or sickness was most likely caused. In this case, there was no such report – which makes it difficult for the Ombudsman to conclude the cause of the chest infections. For that reason, it is not appropriate for the Ombudsman to award compensation for this.
- Not only was the resident affected by distress and inconvenience, but the use and enjoyment of her home were severely affected.
Determination
- In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in the level of compensation offered to the resident. This is because the landlord’s offer of compensation did not recognise the full impact on the resident.
Orders
- No later than 31 January 2024, the landlord must:
- pay the resident £2,425.98 in compensation. The compensation is comprised of:
- £50 for the delays in completing the repair, previously offered at stage 1.
- £50 for the delayed complaint response, previously offered at stage 1.
- £300 for the resident repeatedly chasing the repair and the landlord’s failure to respond to calls and emails, previously offered at stage 1.
- £100 for the inconvenience caused, previously offered at stage 2.
- £612.47 for the loss of the bedroom from 1 June 2022 to 31 August 2022, previously offered at stage 2.
- £663.51 for the loss of the bedroom from 1 October 2022 to 4 January 2023. This has been calculated at 30% of the £170.13 weekly rent x 13 weeks.
- £650 for the detrimental impact it had on the resident to live with a wastewater leak and the damage it caused for over six months.
- provide this service with evidence of these payments.
- pay the resident £2,425.98 in compensation. The compensation is comprised of:
The compensation must be paid directly into the resident’s bank account and not offset against her rent arrears, if any.
- assess the resident’s damaged household goods and contents and either:
- offer to pay to have them replaced with like-for-like replacements based on their age, style, and specifications.
- Alternatively refer the claim to the landlord’s indemnity insurer to assess the claim for the damaged contents and the resident’s chest infections. If the insurer declines the claims – the landlord must contribute to the cost of replacing the damaged contents on a like-for-like basis in accordance with 34(c)(vii) above.
Recommendations
- It is recommended that the landlord review its policy on compensation to consider payments for damage to goods where its insurer may decline a claim and it would be fair on a discretionary basis to make such an award.