Clarion Housing Association Limited (202223186)

REPORT

COMPLAINT 202223186

Clarion Housing Association Limited

31 January 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

The complaint is about the landlord’s:
1. response to reports of defects at the property.
2. Handling of the associated complaint.

Background and summary of events

The resident has been a shared owner with the landlord since July 2019, it is unclear whether the resident bought the property off plan. The landlord is a housing association. The property is a ground floor flat within a block. A property developer (the ‘developer’) built the property in 2020.
The landlord said it has no vulnerabilities recorded for the resident.

Warranty cover, policies, and procedures

The property was subject to a 12 month defect liability period during which the resident could raise any defects for repairs, ending 26 July 2021. In addition, the property was also covered by a home warranty provided by the National House Building Council (NHBC). The warranty provides cover for 10 years. During that time, NHBC guarantees the obligations of the builder under the warranty. It will either settle or arrange to put right damage resulting from defects caused by the builder where it has failed to meet the warranty provider’s requirements when building specific parts of the property.
The resident was provided with the new home information guide when she purchased her property. The guide stated that the resident was to report any defects to the landlord who would then report them to the developer. The guide also noted that the timeframe for responses relating to defects varied depending on their urgency. It stated that emergency repairs would be attended to within 24 hours. Defects which could lead to essential loss of facilities would be attended to within 7 days. Defects which could be deferred without causing serious inconvenience to the resident would be addressed within 28 days. Routine repairs would be inspected at the end of the defect liability period.
A latent defect is a fault or flaw in a property that could not have been discovered through a standard inspection when buying the property. It is a hidden or concealed defect that may present due to damaged construction materials, poor workmanship or design.
The landlord operates a compensation policy. The policy notes that it will award compensation of £700 and above when there has been a significant and serious long term effect on the resident due to loss of service because of a service failure.
The landlord operates a 2 stage complaints policy. It is an interim policy which has been in effect since June 2022. The landlord will acknowledge a complaint within 10 working days and provide a stage 1 response within 20 working days. It will provide a stage 2 response within 40 working days of an escalation. It will explain to the resident its reasons should it need longer.

Summary of events

The resident reported a defect to the landlord on 25 July 2021. She described how during heavy rain, water was pouring out of the guttering and down the external walls onto the balcony. The landlord acknowledged the report the following day and informed the resident that the contractor would be in touch directly to arrange an appointment. The repair was given a priority timescale of 28 days.
Following the landlord’s report of the defect to the developer, the developer contacted the landlord on 30 July 2021 and requested information from the landlord to assess the claim. There is no evidence to show the landlord responded to their request at that time.
The resident said on 5 August 2021, that several residents from the block had made a group complaint to the landlord. They raised a range of issues about the defects in the building which included their balconies flooding and leaking guttering. Several of the residents reported the same defect of their balconies and guttering needing attention on the end of defect period form, which they completed in June 2021.
It is not evident that any action was taken after the landlord reported the defect to the developer on 26 July 2021. This led the resident to chase updates several times in August 2021 and September 2021. She also sent videos and photographs to the landlord to show the extent of the issue. The evidence suggests she received no contact from the landlord until September 2021, when she further discussed the issue with the landlord. The following day, the landlord contacted the developer and shared a video of the balcony flooding.
The landlord responded to the group complaint on 11 October 2021. It said that all the defects were addressed and resolved on 8 October 2021.
Between 1 October 2021 and 12 November 2021, the resident contacted the landlord a number of times. She said she was told on several occasions that someone would call her back but they never did. She also said she had sent over 50 emails to the landlord asking for updates but had not received a response.
The landlord resumed contact with the developer on 12 November 2021. It said the resident reported the defect within the defect liability period. It also mentioned that the end of defect report form noted that several residents of the block had reported the same defects. It asked the developer to confirm it would attend the resident’s property to remedy to the issue.
The developer informed the landlord on 15 November 2021, that it would not proceed with any repairs. It said that this was because the defect had not been reported during the final defect inspection and the property was out of its defect liability period. The landlord subsequently instructed a surveyor to inspect the property and assess the nature of the defect.
On 19 November 2021, the landlord informed the resident it had made an appointment to carry out the repair to the leaking guttering on 14 December 2021. The landlord’s contractor inspected the property on that day and told the resident that the issue with her balcony was a latent defect. The landlord received the repair report on 6 January 2022, which confirmed the defect was a latent defect.
The resident reported damp and mould in her bedroom on 16 January 2022, which she believed was caused by the water from the leaking guttering. She provided photo evidence to the landlord 2 days later.
The resident said that a contractor attended the property on 21 January 2022, and carried out some repairs to the balcony. It is unclear whether this was organised by the landlord or the developer. The resident said that it seemed to have resolved the balcony flooding. She did, however, point out that this was dependant on what would happen during a heavy rain fall. She also queried when it would address the damp and mould.
On 10 February 2022, the landlord informed the resident that the developer had confirmed it would contact her directly on that day to discuss the “making good works”. It is unclear what “ the making good works” entailed. The resident informed the landlord on 15 February 2022, that the developer had failed to contact her as agreed. She also informed the landlord on 24 February 2022, that after a period of rain, the balcony flooded and the repairs had not resolved the issue.
Between mid–February 2022 and July 2022, there is a significant gap in the landlord’s evidence with no indication that any further works took place. The landlord explained to this Service that as a result of a cyber incident, which happened in June 2022, it had been unable to recover every correspondence regarding the case. However, the resident said she requested updates but had no contact with the team looking into her case until 29 July 2022. She said she had, however, remained in contact with the landlord’s social media team.
The landlord informed this Service that the developer booked to complete the repair on 4 April 2022 but failed to attend. It is unclear what, if any, communication took place between the landlord and the resident about this.
The resident made a stage 1 complaint on 11 August 2022. The complaint was about defects at the property. She said that:
1. The leak on her balcony had gone on for one year.
2. The landlord delayed acknowledging the issue.
3. Due to the delays, there was damp and mould in her bedroom.
Between August 2022 and September 2022, the landlord’s roofing contractor inspected the property and again concluded the defect was a latent defect. The roofing contractor also said that the issue was not limited to the guttering. It described how the defects were due to poor workmanship and highlighted some buildings defects.
The landlord informed the resident on 27 September 2022, that its contractor would install the missing drainage pipes on 13 October 2022.
The landlord issued its stage 1 response on 10 October 2022. It was as follows:
1. It apologised for the delay responding to the complaint. It said that the delay was because of a cyber-attack and IT issues.
2. It apologised as it could not locate the emails from 7 August 2021 to 21 September 2021, when the resident was chasing updates.
3. It provided a timeline of what had happened since the resident had reported the defects. It acknowledged that it could not evidence that it followed the correct process for latent defects and “pushed back” the defect to the developer. It concluded that there was a service failure on its part. It also said that it had not communicated effectively with the resident during that time.
4. On 28 July 2022, the landlord instructed its contractor to attend and repair the latent defect and an appointment was confirmed for 13 October 2022. The landlord informed the resident about this on 27 September 2022. (It explained it had to get parts, which was why the appointment could not take place until October 2022). The landlord advised it would monitor the remedial work to completion and complete any make good works required.
5. The landlord awarded £700 compensation to the resident. £650 to reflect poor communication and £50 for delays responding to the complaint.
On 13 October 2022, the contractor informed the landlord that the defect was due to poor workmanship and should be “pushed back” to the developer. It also provided photos of the issue. It said it had been unable to procure parts to do the repairs. It is unclear whether this was fed back to the resident or whether the contractor actually attended the property on that day.
The resident requested that her complaint be escalated to stage 2 on 13 October 2022. She said that she remained dissatisfied because:
1. the works confirmed in the stage 1 response for 13 October 2022 did not happen as agreed;
2. the compensation offered by the landlord was not acceptable.
The resident said in her escalation request that she wanted the landlord to explain why the works were not completed as agreed. She asked for the landlord to confirm when the works would be completed. In addition, she requested for the landlord to reassess the level of compensation to reflect the further service failures.
On 7 November 2022, the landlord contacted the developer and shared the findings of the survey which it had completed in September 2022. It informed the developer that it was a latent defect and asked for confirmation that they would complete the repairs. It also said that if the developer failed to agree to carry out the repairs, it would inform NHBC.
On 10 November 2022, the landlord contacted the resident to raise a claim with NHBC because the defects were worse than initially suspected, as reported by the landlord’s roofing contractor in September 2022. It also said the developer refused to commit to carrying out the work. The evidence seen showed the resident made a claim to NHBC. The landlord advised it had been unable to retrieve copies of the communications with the developer during that time. This was because the staff dealing with this had left the organisation.
The landlord issued its stage 2 complaint response on 28 November 2022. It was as follows:
1. It apologised for failing to complete the agreed work in October 2022. It explained that this had been due to miscommunication between the landlord and its contractor. It recognised that the contractor reported the defect was a latent defect which required additional works that they had not been scheduled to complete.
2. It started a latent defect claim against the developer but received no response.
3. It contacted the resident on 10 November 2022 and helped her raise a claim with the NHBC. It explained the NHBC would liaise directly with her. It also said if the NHBC concluded work was required, they would either ensure the developer completed the work or take on the work themselves.
4. It committed to follow up with the resident on a monthly basis to ensure the claim was progressing and monitor the claim to its closure.
5. It said that the stage 1 response had been fair and reasonable given the information at the time. It explained that subsequent investigations made it clear that its contractor could not have completed the repairs. It concluded its team followed up appropriately and as agreed.
6. It offered the resident a further £300 compensation to reflect the miscommunication, the missed appointments, and the further delays. This brought the whole compensation to £1,000. It said its offer reflected the delays in service and poor communication, the inconvenience this caused to the resident, and the delays responding to the complaints at both stages.

Post Internal complaint process

The landlord paid the resident £1,050 compensation on 4 January 2023. It added £50 to the agreed compensation for making the payment 6 days late. The compensation was equivalent to:
1. £950 for the delays in service and poor communication whilst responding to the resident’s reports of defects;
2. £50 for the delay in providing the stage 1 response to the resident’s complaint;
3. £50 for the delay paying the compensation to the resident.
The landlord contacted the NHBC for an update on 4 January 2023. Five days later, the developer appointed a contractor to deal with the repairs.
The resident contacted this Service on 4 January 2023. She said she remained dissatisfied with the landlord due to the defect being unresolved and the level of compensation she received.
The evidence shows that the landlord remained in contact with the NHBC and the developer between January 2023 and December 2023. The landlord was liaising with the NHBC about the claim and chasing the repairs with the developer. The evidence provided also shows that the landlord provided regular updates to the resident. Some temporary repairs were carried out in February 2023, but further delays occurred due to the developer’s intermittent engagement and limited availability of the parts to resolve the issue.
The landlord informed this Service that it completed the repairs to address the damp and mould in the resident’s bedroom on 12 June 2023. It said it was a “small patch”.
The resident informed this Service in January 2024, that all repairs had been completed.

Assessment and findings

Scope of investigation

Prior to this investigation, the Ombudsman carried out an investigation into the landlord under paragraph 49 of the Scheme. The investigation reviewed 13 determinations made by the Ombudsman over a six-month period up to June 2022. The investigation identified common points of failure and made recommendations for improvement. The investigation resulted in a special report which was published in October 2022 and can be viewed at https://www.housing-ombudsman.org.uk/wp-content/uploads/2022/10/Clarion-special-report-October-2022.pdf . The landlord has provided the Ombudsman with its improvement plan and the Ombudsman is monitoring its progress in making the changes that are needed.
Some of the events in this case took place over the same period as that investigation and some of the findings of the Ombudsman’s special report are relevant to this case. Whilst, the Ombudsman has issued determinations relating to the failings identified within this report, it has not made any orders or recommendations which would duplicate those already made in the Ombudsman’s special report.

Defects

The Ombudsman’s special report highlighted the following common points of failure in the landlord’s record keeping and communication which are relevant in this case:
1. poor record keeping;
2. poor communication;
3. lack of a clear point of contact for residents when dealing with ongoing issues.
The Ombudsman appreciates that as the resident had moved into a new build property, she would have been disappointed that the defects occurred. This would have impacted on her new home experience. However, the Ombudsman recognises that, from time to time, there will be defects which may not have been identified during the handover of the property. Shared owners are protected by the defect period and the warranties in place. The existence of a defect alone would not constitute a failure on the part of the landlord.
However, during the defect or warranty periods, the Ombudsman would expect the landlord to raise the issue with the developer and act as an appropriate intermediary, coordinating matters between the developer and the resident. This is so it can ensure that repairs are appropriately managed, completed to a satisfactory standard and within a reasonable amount of time.
As per the process set out in the new home guide, residents must report any defect to the landlord who will then report it to the developer. The developer will then be expected to complete the repairs when the issue is reported during the defect liability period. In this case, the resident reported an issue with the guttering and her balcony within the liability cover period. On the receipt of her report, the landlord reported the defect to the developer and allocated a priority timeframe of 28 days for resolution. This was reasonable from the landlord, and in line with what was expected at that point.
While the works were being completed by a third party, the Ombudsman would nevertheless expect to see that the landlord had done all that it could to manage the situation, to proactively pursue the outstanding works, and to consider alternative solutions where the resolution was being prolonged.
In this case, a lack of communication or timely updates is a theme that runs throughout the period of the complaint. The landlord has acknowledged this in its stage 1 response. As the months passed, the resident requested time and time again for updates on when the defect would be resolved. While the landlord said the developer was responsible for the repair, it was also reasonable to expect the landlord to remain in communication with the resident and provide her with regular updates. The landlord promised several times to call the resident back with updates and did not. Those were missed opportunities to keep on top of the issues, resolve things quickly, and rebuild trust with the resident.
For instance, the evidence seen shows that following the report of a defect, the landlord had no further communication with the resident for several weeks. This left the resident chasing the landlord for updates. This was frustrating for her. She was uncertain of who to contact, what would happen next, or whether the issue would be resolved within the agreed timeframe. The evidence seen does not show that the landlord chased the property developer for updates. It did not challenge the developer for not addressing the defect within the agreed time frame or for not providing the resident with updates. The landlord should have acted as an intermediary between the resident and the developer and should have kept the resident informed on progress. It would also have been helpful for the resident to have been provided with a specific point of contact.
In addition, following the initial report of the defect, it is not evident that the landlord communicated with the developer for another 6 weeks. It is acknowledged that the landlord later said it had been unable to locate all the communications which took place with the developer. It said this was because the staff who had communicated with the developer had left the organisation. It is reasonable to expect the landlord to have sufficient record keeping practices to mitigate the impact of staff turnover. The poor record keeping here makes it difficult for this Service to reach a conclusion about what happened during that time.
The developer requested information in July 2021, there is no evidence to show the landlord provided the information at that time. The developer reiterated their request for information once contact resumed. Therefore, it is reasonable to conclude that the landlord did not respond to their initial query. It also suggests that it did not communicate effectively with the developer or pursue the matter to ensure it had addressed the defect within a reasonable timeframe. It would have been reasonable to expect the landlord to liaise with the developer until the matter was resolved.
By the time the resident reported the defect, the landlord should have been aware that it was possible this was a latent defect. This was because a number of residents had already reported to the landlord that they experienced the same issue on their end of defect form in June 2021. They, including the resident, made a complaint about gutters leaking onto their balconies in August 2021. The fact that several residents reported the same issues shows that this was not an isolated incident and this information was an indicator of a wider issue. The same issues affecting several residents suggest this could be a latent effect as a result of poor workmanship or design. According to the warranty cover, latent defects are for the developer to rectify. Those are not dependant on reporting the defect prior to the liability cover period ending.
The evidence seen shows that the landlord had established in December 2021 that the issue was a latent defect. By that time, it also knew that the developer had refused to accept liability for the repairs. It acknowledged in its stage 1 response that during the same period, it had failed to follow process and “push back” the defect onto the developer. It would have been reasonable for the landlord to communicate its findings of the latent defect to the developer in a timely manner. It would also have been appropriate for the landlord to challenge the developer to accept liability for the repairs, earlier than it did. This is because, latent defects are always the developer’s responsibility to address. Those were missed opportunities to pursue the matter as a latent defect with the developer or to make a claim to the NHBC for resolution earlier than it did. The NHBC could have ensured that either the developer addressed the issue or it could have completed the repairs itself.
In addition to the above, the Ombudsman would expect the landlord to consider alternatives or interim works to address issues where a resolution was being prolonged beyond a reasonable timeframe. In this case, it is unclear whether the landlord first carried out repairs in January 2021 or July 2022. It is, however, clear that in July 2022, the landlord had instructed its contractor to complete the repairs. This was over a year after the resident reported the defect and over 8 months after some repairs were first completed.
The Ombudsman recognises that the landlord was not responsible for completing the repairs and that it can take time to procure parts for a repair. It is also recognised that the developer’s intermittent engagement made things more difficult for the landlord. However, it would have been helpful for the landlord to explore making some repairs earlier, especially as it knew the developer had not been forthcoming in resolving the defect.
This Service’s spotlight report on complaints about damp and mould, published in October 2021, confirmed that damp and mould should be a high priority for landlords and they should take a zero-tolerance approach. In this case, the resident reported damp and mould in her bedroom in January 2022. She believed this was caused by the leaking guttering. It is not evident that the landlord had liaised with the developer about the issue in February 2022 when it said the developer would contact the resident about the “making good works”. It would have been appropriate for the landlord to liaise with both, the resident and developer, about the issue.
Additionally, it is not evident that the landlord specifically inspected or assessed the issue of the damp and mould. This would have been appropriate for the landlord to assess whether it was urgent to address the matter and communicate this to the resident. It would have also been reasonable for the landlord to consider whether interim works were necessary. It is acknowledged that the landlord completed the repairs; however, the delay of approximately 16 months to address the damp and mould was unreasonable.
Between February 2022 and July 2022, there is a gap in the evidence provided by the landlord due a cyber incident in June 2022. However, the resident provided evidence that during that period, she spent considerable time chasing the landlord for updates, she said she received no response from the landlord. The evidence also shows that later in the year, some appointments were made to carry out the repairs, but then they did not go ahead. The landlord acknowledged in its stage 2 response this was due to miscommunication and it apologised. Those were further evidence of the landlord’s failings to communicate effectively with the resident.
It is also concerning that the communications the landlord had with the developer did not appear to be recorded on its housing management system. The Ombudsman’s Knowledge and Information Management (KIM) report published in May 2023 says good records promotes transparency, accountability, openness, and trust. It also says that good record keeping is essential for landlords to provide meaningful evidence to any investigations into its actions. While, in this case, the issues began prior to the spotlight report’s publication, the report consolidated some of the good practice that would be expected from landlords at any time. The gap in the evidence provided and the landlord’s explanation that staff had left the organisation, points to failures in the landlord’s record keeping.
In summary, it is recognised that some of the delay in resolving the issues were due to the poor engagement from the developer and its lack of commitment to meet its obligations. It is also fair to say that the responsibility to resolve the defect lays with the developer. However, the landlord did not help to resolve the issues quickly due to its failings to communicate effectively with all parties. It failed to assess the issues in a timely manner or to identify early on that the issue was a latent defect and communicate this to the developer. It also failed to provide regular updates to the resident. In addition, it is recognised that the landlord had a cyber incident. However, some gaps in evidence and the explanation provided for this suggest there was still some failings in the landlord’s record keeping.
It is noted that the resident was left with unresolved issues for a considerable length of time. It is evident that she spent a lot of time chasing updates and a resolution, which caused her inconvenience and frustration.
The Ombudsman expects a landlord to identify its failing and put things right as part of its complaint responses. We expect the landlord to acknowledge when something went wrong, apologise, take action to remedy and consider a financial remedy. In this case, it is noted that the landlord acknowledged most of its failings during the complaint process. It acknowledged its failure to follow process and its poor communication. It apologised to the resident and put steps in place to remedy the issue and prevent the failings to reoccurring. For example, it agreed to provide regular updates to the resident and it completed the repairs to address the damp and mould. This was reasonable from the landlord.
It is also recognised that the Ombudsman identified additional failings by the landlord such as delaying inspecting the defect and consider alternative resolution. However, in the spirit of dispute resolution, the landlord acknowledged the impact its failings had and agreed to pay compensation to the resident to reflect its failures. In total the landlord paid £950 in compensation to the resident, which was in line with its compensation policy. The Ombudsman would have found maladministration but for the remedy offered by the landlord. The landlord’s total offer reflected the failings identified, therefore the Ombudsman determined that, in all circumstances of the case, the level of compensation paid was reasonable redress.

Complaints handling

The Ombudsman’s special report highlighted the following common points of failure in the landlord’s handling of complaints which are relevant in this case: a lack of evidence of learning from the complaint.
The landlord operates a two stage complaints policy. It will acknowledge a complaint within 10 working days and provide a stage 1 response within 20 working days. It will provide a stage 2 response within 40 working days of an escalation. It will explain what its reasons are should it need longer.
The resident made a complaint in August 2022, the landlord provided its stage 1 response 21 days outside its published timeframe. It is recognised that the landlord had a cyber incident in June 2022, and operated under an interim complaint policy, with extended time frame to respond to complaints. However, in this case, the landlord failed to meet those new time frames with its stage1 response. No evidence was seen that the landlord discussed the reasons for this with the resident or negotiated a new timeframe. This was not reasonable or in line with its policy.
Furthermore, it would have been especially important for the landlord to communicate effectively during the complaint process, as the resident had specifically complained about its poor communication. It would have shown that it had reflected and learned from its failings in handling its report of defect. This was also a missed opportunity to rebuild some trust with the resident.
A key aspect of complaint handling is for the landlord to evidence learning from complaints. In this case, and from its own admission, the landlord repeated failings such as poor communication with the involved parties. It did not show it improved its service delivery following the first complaint. It would have been reasonable for the landlord to reflect on the failings identified at the stage 1 complaint and put measures in place to prevent repeating those mistakes. This would have also reassured the resident the failings would not happen again. It took a stage 2 response before improvements were evident. This Service recognises that following its stage 2 response, the landlord’s communication improved and it then provided the resident with regular updates as agreed.
The landlord informed this Service in January 2024 that it has agreed to pay the resident and additional £50 in compensation for failing to pay the full compensation within the agreed time frame. This was reasonable from the landlord.
Overall, the landlord acknowledged its failings at both stages of the complaint. At stage 1 it offered £50 to the resident for the delay responding to her complaint. In line with the Ombudsman remedies guidance, the Ombudsman concluded that the offer of £50, to reflect the landlord’s service failure in its handling of the complaint, is too low and a more appropriate level of compensation is £100.

Determination (decision)

In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, the landlord offered and paid a sum in redress to the resident, prior to investigation which, in the opinion of the Ombudsman resolves the complaint about the landlord’s response to reports of defects at the property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the associated complaint.

Reasons

The landlord acknowledged it had failed to communicate effectively with the resident and the developer, following reports of a defect at the resident’s property. It also recognised its failing to follow process and repeating some of its mistakes. In addition, it failed to inspect the defect in a timely manner and consider whether it could complete the repairs itself. In reflection of its failings and to acknowledge the impact on the resident it offered and paid £950 to the resident in compensation. The Ombudsman determined this was reasonable redress and resolved the complaint.
The landlord failed to respond to the resident’s complaint within its published time frame. It also failed to show it had learned from previous failings.

Orders and recommendations

Orders

This Service orders the landlord to pay directly to the resident £100 to reflect its failings in its handling of the associated complaint. This replaces the offer of £50 made by the landlord. If the landlord has already paid this, it should be deducted from this order.
The landlord is to comply with the above order within 4 weeks of the date of this report.

Recommendation

The landlord to carry out a review of how it records multiple leaks being reported by multiple residents within a building, to improve its ability to be able to identify early, when there is a systemic repair issue or latent defects.