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Lewisham Council (202319211)

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REPORT

COMPLAINT 202319211

Lewisham Council

24 February 2025


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 reports of a leak.
  2. The Ombudsman has also considered the landlord’s handling of the complaint.

Background

  1. The resident is a leaseholder of a 1-bedroom flat on the first floor of a block. The landlord is the freeholder of the building. The resident does not occupy the property but sublets it to tenants. The two flats above on the second and third floor are owned by leaseholders.
  2. On 2 August 2023 the leaseholder reported an ongoing leak that he believed originated from the communal drains located near the bathroom of the flat above. On 25 August 2023 the landlord’s contractor inspected the leak. The same day, the resident made a formal complaint to the landlord. He said that the contractor spent less than 15 minutes on site and did not carry out a thorough investigation. He added they did not engage with him which he felt was unprofessional. He also disputed the contractor’s view that the leak related to an individual leaseholder flat above. On 29 and 30 August 2023 the resident provided pictures which he felt showed the leak was a communal issue. He said the leak was ongoing and causing extensive damage and wanted the landlord to take urgent action.
  3. The landlord issued its stage 1 response on 1 September 2023. It said its plumber attended on 25 August 2023 and advised further investigations would be needed with the flats above as there was no visible leak or blockage on the communal pipework. It said it would conduct further investigations to the flat above on 11 September 2023. It said that, should there be no faults within the communal pipes, he would need to arrange for his own plumber to attend and communicate with the flats above. It reminded the resident that the landlord was not responsible for carrying out any remedial work within his property following a repair or incident, and suggested he claim through his own contents insurance for any damage to his belongings.
  4. The resident asked to escalate the complaint the same day. He felt the landlord dismissed his concerns and said the contractor could not have carried out a thorough visual inspection as the damaged part of the communal drain was hidden behind walls. He added he had liaised with the owners of the flats above and attached photographs and videos showing, in his view, that the water came from part of a communal pipe.
  5. On 13 September 2023 the resident contacted the landlord and said that his appointment for 11 September 2023 was not attended. However, he explained that the landlord’s contractor attended on 12 September 2023 and traced the source of the leak to a leaseholder on the third floor. The resident was unhappy an appointment had been cancelled without prior notification. As an outcome, he wanted a thorough investigation of the issue and compensation for his time and trouble.
  6. The landlord issued its stage 2 response on 3 October 2023. It accepted that it should have made it clear the responsibility for repairs was not with itself, but the leaseholder of the flat where the leak arose. It confirmed, as the resident had expressed, that there was a missed appointment on 11 September 2023, and that this was attended on 12 September 2023 when it located the source of the leak as the mains storage tank in a flat above. It said it had asked its homeownership team to contact the leaseholder above and give a deadline date for them to complete the required repairs. It partially upheld the complaint as it did not clearly explain the responsibility was with the leaseholder above, nor did it follow up with its homeownership team promptly after its operative’s attendance on 25 August 2023. It offered a total of £100 compensation comprised of £80 in recognition of its poor communication and £20 compensation for the missed appointment on 11 September 2023.
  7. On 12 October 2023 the resident continued to complain to the landlord about its handling of the issue. He said he was initially misled by the occupants of the flat above and said the situation was dangerous not just for individual leaseholders’ but the whole building. The resident felt that, given the leaseholder above’s reluctance and their refusal to carry out their obligations under the lease, the landlord should intervene to prevent further damage to the fabric of the building. He stressed the leak was ongoing affecting his property and felt the landlord was doing nothing to resolve this.
  8. The landlord issued another stage 1 response on 30 October 2023. It stated that an inspection took place on 11 October 2023, and confirmed the leak came from a water tank within the leaseholder’s flat above. It said its legal team began its breach of lease procedure against this leaseholder and said it had sent a letter before action on 27 October 2023. It assured the resident it would continue to work with the leaseholder above and its homeownership team would update him fortnightly until the matter was resolved.
  9. The resident asked to escalate the complaint on 26 November 2023. He said the situation was still not resolved and that the homeownership team had not updated him on any progress to date. The landlord issued another final response on 5 January 2024. It apologised that the resident had not been updated as promised, and that going forward it would ensure fortnightly updates until the leak was resolved and committed to update him on 19 January 2024. The landlord confirmed that the leaseholder of the flat above had not engaged with it so it had referred the matter to its legal team to ensure that the leak was fixed. It also promised to update the resident when the leak was resolved.
  10. The resident and landlord continued to exchange emails between January and July 2024 during which the leak persisted. In August 2024, the landlord confirmed it had had been unsuccessful in contacting the leaseholder of the flat above. It said again it had referred the case to its legal team for action and that the process of seeking an injunction could take some time to complete. Around June 2024 the resident arranged for his own solicitors to take action against the leaseholder above, as a result of which they removed the water tank in their flat in August 2024, thus resolving the leak. The resident successfully claimed under his contents insurance for the damage caused, but remained unhappy as he felt the landlord should have taken action much sooner to enforce the terms of the lease and that it was only through the intervention of his own solicitors that the leak was fixed. As a resolution, the resident wanted further compensation.

Assessment and findings

The landlord’s handling of reports of a leak

  1. Under section 11 of the Landlord and Tenant Act 1985, the landlord must maintain the structure and exterior of a property. This is also confirmed in the Lewisham Council Leasehold Guide dated December 2024 which states the landlord is responsible for repairing and maintaining the building which includes the foundation, structure and common parts. This Guide also explains if water is escaping from a leaseholder property and damaging other parts of the building, that leaseholder is responsible for sorting the problem out. If the leaseholder does not carry out the necessary repair within a reasonable time, the landlord will take action against that leaseholder as this constitutes a breach of the lease. This action may include applying for an injunction which will include the landlord’s costs. The Ombudsman recognises that this Guide was not available at the time of the resident’s initial report but is referred to as a sensible guide.
  2. The landlord’s repair policy also confirms that where a leaseholder is responsible for undertaking or authorising works to stop a leak, the landlord expects them to carry this out promptly, and failure to do so may result in further action. It also adds that leaseholders are required to give all authorised employees and agents of the landlord access when required and that leaseholders are responsible for any replacement or repairs necessary due to damage caused by their household either deliberately or by negligence. Leaseholders will be required to pay for any damages to another property caused by their own conduct, appliances or equipment.
  3. It is clear on the basis of the repair policy that once a landlord identifies that a leaseholder is responsible for the leak, it should follow due process to ensure that the leaseholder meets their obligations. As the landlord is the freeholder with an overall responsibility for the block and to protect the interest of its leaseholder, it may, in some scenarios, need to take steps to access a property where there is a significant safety risk.
  4. Following the resident’s initial report of 2 August 2023, the landlord attended on 25 August 2023 and said the issue related to an individual flat above. Shortly after this, the Ombudsman has seen there was a missed appointment on 11 September 2023. The landlord acted fairly by offering £20 for this missed appointment and attended the next day when it located the source of the leak as being from the mains water storage tank in the leaseholder’s flat above. It also confirmed that there was no visible leak from any communal pipe. This would suggest that the landlord had, on this occasion, been able to access to the flat above.
  5. It was identified that the leaseholder above was responsible for fixing the leak. At this point, while the landlord had no obligation to fix the leak itself, it ought to have ensured that it monitored the situation to ensure the necessary repair was carried out within a reasonable time. However, there is no evidence that this happened and the landlord effectively left the resident to monitor the situation. This was inappropriate.
  6. In the landlord’s stage 2 response of 3 October 2023, it informed the resident that it had asked its homeownership team to contact the leaseholder above and give them a deadline to complete the repairs. It would appear that the homeownership team was unsuccessful in contacting the leaseholder above, despite it attempting to do so in January, March, May, July, August and September 2024. It is unclear why the landlord did not serve written notice on the leaseholder above that the flat would need to be accessed to repair the tank and if not by the leaseholder themselves, all costs would be recharged back to them. The landlord will have had an address for correspondence with the leaseholder above on its records, and if notice was sent to that address, it will have been validly served.
  7. It was clear that from October 2023 the resident felt the landlord needed to intervene to prevent further damage to the fabric of the building by getting the leaseholder to organise the necessary repairs to stop the leak once and for all. The resident stressed to the landlord that the leaseholder above had done nothing to resolve the ongoing issue and he felt this was a dangerous situation not just for his property but the whole building. Following the resident’s contact with the landlord, it claimed to have issued a letter before action on 27 October 2023, presumably to the leaseholder above’s address for correspondence as held on its records. This was an appropriate initial legal step, as the landlord needed to allow the leaseholder above some time to resolve the leak. However, in the absence of a response, it does not seem that the landlord sought to escalate this in anyway.
  8. It is concerning that the landlord indicated on 25 March 2024 that it recommended using the fire brigade if the leak continued to worsen as they had jurisdiction to force entry to a property. The landlord had a log of unsuccessful attempts of contact with the leaseholder which span from October 2023 until August 2024. It could alternatively have sought an injunction as early as November 2023. Although seeking an injunction may take time, due process would have been followed had this route been taken by the landlord; the Ombudsman considers had the landlord sought an injunction earlier, it would have been approved earlier.
  9. The Ombudsman notes that, in the landlord’s final response of January 2024, it apologised that the resident had not been updated as promised, and that going forward it would ensure fortnightly updates until the leak was resolved. It committed to initially update him on 19 January 2024.
  10. While it did initially do so, the landlord’s subsequent contact was on 14 February, 4 March and 25 March 2024 and the Ombudsman notes that these were often prompted by the resident asking for updates. This failure to abide by its promise would have caused distress and inconvenience to the resident who may have felt that the landlord was not taking the leak seriously.
  11. The landlord appeared to be taking some practical steps to resolve the matter as, between February and March 2024, it said it was taking legal action such as its solicitor providing a draft witness statement and awaiting confirmation that the case had been assigned to court. The resident was entitled to believe the matter would be swiftly dealt with by the landlord’s legal team as, by February 2024, it had already been 6 months since he reported the leak.
  12. In April and May 2024, the resident continued to chase the landlord as the leak persisted. In August 2024, the landlord admitted that despite its continued attempts it had still not made contact with the leaseholder, or the subtenants of the property above, despite its claim that it had carried out visits, delivered letters to both occupants and the leaseholder, and contacted the leaseholder’s mortgage lender. Despite this, almost a year after the landlord was first notified of the leak by the resident, the leak persisted and continued to impact the resident. This is very concerning particularly as the resident had explained to the landlord on many occasions that the leak had caused extensive damage.
  13. Due to the length of time the leak was allowed to continue, the resident has said his property experienced ‘extensive’ damage. This demonstrates that the landlord’s ineffective response to the resident’s complaint resulted in poor living conditions; the Ombudsman appreciates that the resident did not occupy the property and sublet it to tenants, but a leaseholder has a responsibility to provide satisfactory living conditions for their tenants. The resident’s increasing frustration is apparent throughout the correspondence in late 2023 and 2024.
  14. Eventually, as the leak remained unresolved, and despite repeated chasing of the landlord which necessitated time and trouble and did not result in the landlord itself resolving the matter, in June 2024 the resident instructed his own solicitor at his own cost to take action against the leaseholder above. In September 2024, the resident advised the landlord that in August 2024 the leak was resolved by the leaseholder above. He noted it took his solicitor only 3 months to get a resolution for the issue that the landlord had failed to get any traction on for 12 months. He also said the solicitor quickly tracked down the current address of the leaseholder above and quickly made arrangements to take the leaseholder to court, which the resident noted the landlord had not done. The resident said that only by using the court system and his own money did the matter get resolved, and he felt the landlord had failed in its role as the freeholder.
  15. In line with its compensation policy, the landlord may offer compensation for ‘avoidable’ distress and inconvenience arising from the problem or service failure. The landlord will consider factors including the severity of the issues and the length of time the resident was affected. For high impact service failures where the resident has suffered inconvenience and/or distress because of a serious or repeat service failure, it suggests compensation awards from £251. The Ombudsman has seen the landlord paid £100 compensation to the resident in October 2023.
  16. In this case, after the landlord failed to make contact with the leaseholder above or the occupants, it should have taken further action promptly. However, this did not happen and the leak persisted for almost 12 months. The Ombudsman considers this a substantial time where a leak was affecting another property and it is noted the leak was resolved only by intervention from the resident’s own solicitor, as he could not waiting any longer for the leaseholder to fix the issue or for the landlord to take more forceful action.
  17. While the landlord acknowledged some of its failings and made some attempt to put things right, it failed to update the resident fortnightly in accordance with its commitment and it is additionally of concern that the landlord kept making referrals to its legal team despite having confirmed to the resident that the legal team had, months before, sent a letter before action to the leaseholder above. In the Ombudsman’s view, the landlord should have taken action sooner against the leaseholder above.
  18. The landlord’s apology and compensation offer of £80 were not proportionate to the failings identified in this report. Between August 2023 and August 2024, the resident experienced damage to his property which could have been mitigated had the landlord taken more robust action much sooner. As such, orders have been made below which take into account the severity of the issue and the length of time the resident was impacted, resulting in avoidable distress. This has taken into account the compensation already paid by the landlord and our remedies guidance which suggests awards of up to £600 where there was a failure that adversely affected the resident.

The landlord’s handling of the complaint

  1. At the time of the complaint, the landlord operated a three stage complaints policy:
    1. Stage 1 – where a written response will be issued within 10 working days.
    2. Stage 2 – where a written response will be issued within 20 working days.
    3. Stage 3 – where the complaint is seen by an independent adjudicator and a written response will be issued within 20 working days.
  2. The Housing Ombudsman’s Complaint Handling Code advises that ‘two stage complaint procedures are ideal. This ensures that the complaint process is not unduly long’. The landlord’s three stage complaints process would have meant that the resident had to wait at least a further 20 working days before he was able to exhaust the landlord’s complaints process. The landlord has since updated its complaints policy and from 1 February 2024 no longer used three stages. However, in 2023, stage 3 was a mandatory part of the landlord’s internal complaints procedure.
  3. The resident made a formal complaint to the landlord on 25 August 2023. In response, the landlord acted fairly by issuing its stage 1 and 2 responses broadly within its policy timescales. After the landlord’s stage 2 response of 3 October 2023, the resident made another formal complaint on 12 October 2023 about the same issue. He said he wished to complain about the “landlord’s dealing with the current situation” of the property above.
  4. However, instead of considering this further dissatisfaction as an escalation request, it treated this as a new formal complaint. By doing so, the resident missed an opportunity to have an independent review (stage 3) before coming to the Ombudsman. It also resulted in the resident receiving a total of 4 complaint responses instead of 3, which likely delayed him bringing his complaint to the Ombudsman for investigation. 
  5. Following a further escalation request of 26 November 2023, the landlord did not provide its final response until 5 January 2024. This was 26 working days later and outside its complaints policy timescales. The landlord should have considered apologising for this delay in its final response. In any case, this delay may have been avoided had the landlord escalated the complaint in October 2023.
  6. Overall, the landlord failed to escalate the complaint to stage 3 and its subsequent stage 2 response of January 2024 was delayed. This would have caused distress and inconvenience to the resident as had the landlord escalated the complaint to stage 3 in October 2023, he would likely have received a final response around November 2023. Instead it took until January 2024 – some 2 months later. While this was a minor failing of short duration, it may not have significantly affected the overall outcome for the resident. However, the landlord did not offer an apology nor compensation across its formal responses for these complaint handling failures. In view of this, an order has been made below.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of reports of a leak.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the complaint.

Orders and recommendations 

Orders

  1. Within 28 days of the date of this report, the landlord must:
    1. Apologise for the failings identified in this report.
    2. Pay the resident a further £595 made up of:
      1. £520 for the failings identified in its handling of the resident’s reports of the leak.
      2. £75 for the failings identified in its handling of the complaint.
  2. The landlord must provide evidence that it has attempted to comply with the orders within the above timescale.

Recommendations

  1. The landlord should:
    1. Emphasize in its leaseholder guide that leaseholders have a responsibility to act quickly to resolve certain issues, particularly where they may cause damage health and safety issues for other properties, and the steps the landlord will take as a freeholder where a leaseholder fails to act.
    2. Review this case so that it is aware of its legal powers when a complaint of this nature arises to identify the most appropriate legal route to take.