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Southern Housing (202013457)

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REPORT

COMPLAINT 202013457

Southern Housing Group 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

1.     The complaint is about the landlord’s handling of the resident’s reports of:

  1. Water ingress.
  2. The associated complaint.

Background and summary of events

Background

2.     The resident is an assured tenant of the landlord which is a housing association. The property is a 3 bedroom flat. The landlord is the leaseholder of the property and the apartment building is owned by the freeholder. The freeholder contracts a managing agent and also a right to manage company (RTM).

3.     The tenancy commenced on 26 January 2009. The resident moved into the property via a mutual exchange and the deed of assignment is dated 25 October 2010

4.     This Service asked the landlord to provide a copy of the head lease however, the landlord could not locate this. On the evidence provided by the landlord, it is not responsible for repairs to the fabric of the building. The responsibility for these repairs rests with the freeholder’s RTM.

Landlord obligations

5.     Paragraph 3.5 of the tenancy agreement and The Landlord and Tenant Act 1985 states the landlord is required to keep in repair the structure and exterior of the dwelling. It is also required to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas, and electricity.

6.     The landlord operates a 2 stage complaints policy. It will respond to stage 1 complaints within 10 days and stage 2 complaints within 20 days.

7.     The landlord’s compensation procedure explains it may consider a further financial award to reimburse a resident where a resident incurs costs or there has been a financial loss.

8.     The landlord’s decant policy states it will consider a decant where there is serious damp, disrepair such as less serious damp or the property is declared unfit by the local authority environmental health service.

Scope of investigation

9.     Paragraph 42(a) of the Scheme states, the Ombudsman may not consider complaints which, in the Ombudsman’s opinion:

  1. Were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising.

10. The resident states she has experienced the water ingress for over 10 years at the time of her complaint. This Service is unable to consider the historic matters as there is no evidence provided that the resident brought her complaint to the landlord until 14 April 2020.

11. This Service understands the resident felt the landlord failed to properly address issues which have impacted her living in the property. We recognise the concerns she reported have affected and caused distress to her and her family.

12. In relation to the issues raised, it is not the Ombudsman’s role or expertise to assess whether a property has specific defects. This is because this Service does not make findings on technical aspects in relation to a property or repairs and it is not within this Service’s expertise and jurisdiction to do so.

13. The Ombudsman’s role when considering complaints is to assess whether the landlord appropriately considered matters within the timeframe of the complaint, and reasonably applied its policy and procedure, complied with any relevant legislation, and followed good practice when reaching decisions. Whilst this Service cannot assess the actions after the internal complaint procedure (ICP) was completed, this Service can ensure that this is taken into account and will inform any remedies made. Any reference to events after the ICP are included for context and will not be assessed.

14. This investigation will consider the landlord’s handling of the matters until 20 April 2021 when the resident received the landlord’s stage 2 response.

Events pre-complaint

15. On 13 December 2018, the landlord made a formal complaint to the freeholder. It explained it tried to put a temporary fix of silicone sealant around the leak as a short-term solution for the resident, and to give the freeholder time to arrange for the major repairs to the fabric of the building. The freeholder had however not acted promptly. It wanted the freeholder to complete full long-lasting repairs. The landlord has not provided further correspondence relating to its complaint to the freeholder.

16. On 11 June 2019, the landlord agreed to send the resident a transfer application and advised her to contact the local authority regarding her request for a home move.

Summary of events

17. On 14 April 2020, the resident complained to the landlord. She explained:

  1. She had water ingress into her bedroom for over 10 years.
  2. Recently works were started and scaffolding was put up. A builder attended in January 2020 and cut a hole in the ceiling to take photographs inside the cavity. The fault was identified and the builder left.
  3. The hole was not repaired and no repairs works were followed up. She had covered the hole with cardboard. However, whenever it would rain, there would be water ingress into the bedroom.
  4. She noted she was aware of the dispute between the freeholder and managing agent about the repairs responsibility, as a neighbour worked for the managing agent. However, she wanted the repairs to be completed urgently by the landlord.

18. On 17 April 2020, the landlord acknowledged the resident’s complaint.

19. On 11 May 2020, the managing agent emailed the landlord to confirm the works required to prevent the ingress of water. It recommended installation of a suitable cavity tray, to below the window/screen of the property immediately over at a total cost of £5750 plus VAT.

20. The landlord provided its stage 1 response on 3 June 2020. It stated:

  1. It acknowledged the resident reported an ongoing ingress of water coming into the resident’s bedroom whilst investigations were ongoing and the resident advised this was ongoing for several years.
  2. In April 2020, the landlord’s surveyor responsible for assessing the works was furloughed. The freeholder which built the property was not completing works during the Covid-19 pandemic and this delayed completion of the works.
  3. In May 2020 when the surveyor was no longer furloughed, the surveyor had contacted the freeholder and confirmed it was given the opportunity to rectify the issues before it was pursued by the landlord’s legal team.
  4. On 2 June 2020, the freeholder agreed to fund the required works to the property and this would be arranged by the managing agent.
  5. It explained the works required were outside of the landlord’s remit and it would therefore close the resident’s complaint.
  6. It apologised for the inconvenience caused.

21. On 19 November 2020, the resident called the landlord and explained she had a hole in her ceiling from when builders attended to inspect where the leak was coming from over 1 year ago.

22. On the same date, internal correspondence at the landlord from its building surveyor explained:

  1. The water ingress was through the fabric of the building, it was therefore the responsibility of the freeholder to resolve. It had asked the freeholder to commence repair works and chased this regularly. The freeholder had agreed to the works initially however, it would not provide a start date or schedule of repairs.
  2. It was made aware by the resident that the freeholder’s contractor cut a section of her ceiling out but did not put it back. It had instructed a contractor to complete this and would provide an appointment to the resident as soon as possible.

23. On 15 January 2021, the landlord chased the freeholder’s managing agent for a further update on the works. It explained it had been chasing a solution with them for over 1 year. The managing agent agreed to provide weekly updates however, the individual who agreed to provide the updates left the managing agent and it had not informed the landlord.

24. On 5 February 2021, the resident contacted this Service. It was explained a stage 2 response from the landlord was required before her complaint could be investigated. This Service asked the landlord to provide a stage 2 response to the resident.

25. On 9 April 2021, the landlord and resident engaged in a telephone discussion about her complaint:

  1. The resident explained she moved into the property 11 years ago. She quickly realised that a wall in a bedroom was damp and that some replastering has been undertaken as an ineffective fix.
  2. The situation got worse over time. Initially the wall was damp to the touch and then water began to drip through when it rained and was now a gush into her home when it rained.
  3. Water runs down one side of the wall and from above the window.
  4. Her carpet was badly stained and crisp in places, but she will not replace this until the fault was fixed.

26. On 20 April 2021, the landlord provided its stage 2 response. It stated:

  1. Following discussion with the resident, it had completed its investigation of the resident’s complaint.
  2. It acknowledged the resident understood the responsibility for the fabric of the building was not the responsibility of the landlord, but she expected the landlord to ensure the property was kept in good repair.
  3. It previously closed the resident’s complaint as it seemed a resolution was agreed with the freeholder to fund the repair works. However, it recognised no further work was completed and the ingress of water continued.
  4. Its complaints policy allowed it to close a complaint when an action plan was in place. However, it recognised it did not ensure the required works were completed or it communicated with the resident to update her on the progress.
  5. The managing agent and RTM had changed its position on the freeholder’s offer to fund the required repairs. The freeholder was agreeable to fund the repair work to 3 flats in the Core 5 (area of flats affected) in full and final settlement of the reported issues, on the basis it would have no liability on any defect relating to water ingress going forward. However, other defects had been identified in other cores of buildings. Therefore, the managing agent and RTM company refused to undertake the repairs on the basis of the settlement clause.
  6. It recognised it must ensure the managing agent and RTM met their repairing obligations.
  7. It wrote to the managing agent on 12 April 2021 to confirm if it had not received a confirmed works programme by 16 April 2021, it would commence legal action. The agent did not respond and the matter was therefore passed to its solicitors.
  8. It apologised for the inconvenience caused.

Events post internal complaints process

27. On 21 October 2021, the landlord emailed the resident to explain the position. It stated:

  1. Its solicitors advised it to look to the freeholder of the property to complete the repairs. However, the freeholder had since confirmed the RTM had responsibility to undertake the functions of management within the resident’s apartment building, including compliance with the repair and maintenance obligations under the lease.
  2. It was writing to the RTM to seek its voluntary assistance with the repairs.
  3. It noted similar issues were occurring at other apartment blocks at the landlord, which had complicated matters for the RTM.
  4. It would commence formal legal action against the RTM in the hope it would quickly resolve the repair issues in the resident’s property.

28. In May 2022, the landlord issued court proceedings against the managing agent responsible for the repairs.

Assessment and findings

29. When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only 3 principles driving effective dispute resolution:

  1. be fair – treat people fairly and follow fair processes
  2. put things right
  3. learn from outcomes.

Water ingress

30. The resident has experienced water ingress into her property for a substantial number of years and described it became worse over time causing dampness to her bedroom walls. The leak was determined to be caused due to a defect in the fabric of the building. It was therefore not within the landlord’s responsibilities to repair under the terms of the lease. The responsibility is for the freeholder and its managing agent which are not part of the Scheme.

31. As works were being scheduled by a third party, it is accepted that matters were to an extent, out of the landlord’s control. In such circumstances, the Ombudsman would expect to see that the landlord had done all that it could to manage the situation, communicate effectively, proactively pursue the outstanding works, and to consider alternative solutions where resolution was delayed.

32. The landlord has provided evidence it communicated with the freeholder and managing agent regularly for its agreement to complete the repairs to the fabric of the building to prevent water ingress. This Service recognises the landlord has evidenced it took reasonable steps to work with the freeholder and managing agents which is evidenced by emails it sent on 19 November 2020 and 15 January 2021. Initially, the works were agreed and the landlord closed the resident’s complaint. However, the evidence suggests the cause of the water ingress was an issue experienced at other buildings also owned and managed by the freeholder and managing agent. This therefore caused the planned repair works to the resident’s property to stall and the landlord was required to take legal action.

33. Whilst its communication with the freeholder and managing agent was frequent, the landlord did not provide evidence showing it actively communicated with the resident. The resident was required to regularly chase the landlord for updates. This was unreasonable. Whilst the landlord may have been limited in the actions it could have taken, it should have regularly communicated with the resident to provide reassurance the matter was in hand.

34. This Service recognises the landlord took all reasonable steps to engage the freeholder and managing agent to complete the repairs to the building. It has also now commenced legal action to enforce the covenants of the lease. The landlord’s handling of the repairs was reasonable in the circumstances, although this Service does recognise the impact the outstanding repairs had on the resident.

35. Whilst there was a dispute regarding the repairs, the landlord is expected to consider alternative actions to ensure the impact on the resident was minimised. The Ombudsman’s spotlight on damp and mould explains that where extensive works may be required, landlords should consider the individual circumstances of the household, including any vulnerabilities, and whether it is appropriate to move residents out of their home at an early stage.

36. The landlord has not provided this Service with evidence it completed separate risk and decant assessments of the resident and whether she suffered from vulnerabilities following the reports of water ingress.

37. Whilst an assessment of the risk may not have changed the actions taken by the landlord, this Service would expect to see a clear and considered assessment of the risk posed in the short and medium term, to assess if any interim measures could be put in place. For example signposting to support services, assessment of damp and potential mould, temporary repairs and advice around heating and ventilation. Neither did the landlord evidence it considered action such as to provide the resident with a dehumidifier or heaters to dry out the dampness or consider expert input at the time of the reported issues. The evidence suggests living with a leak, along with the resulting damp and mould, caused considerable distress and anxiety for the resident.

38. This Service notes the landlord previously arranged for a contractor to apply temporary fix of silicone sealant to the area of the leak. This was good practice by the landlord however, a further assessment may have identified further works it could complete to minimise the affect the water ingress had on the resident.

39. Furthermore, on 11 May 2020, the landlord was put on notice the works required to remedy the water ingress for the resident by the managing agent. Whilst this Service cannot expect the landlord to have completed the repairs itself, this Service would expect the landlord to consider alternative measures it could take such as consideration of whether it could repair the issue itself and consider legal action against the RTM or freeholder to recover the cost. There is no evidence the landlord considered this and is suggestive it did not seriously consider alternative measures to resolve the situation for the resident.

40. A risk assessment would have been a useful tool to identify conditions and vulnerabilities affecting the resident and her family at the time, in addition to assessing whether the circumstances suggested a decant would have been reasonable. The landlord should have taken further steps to assess the risk to the family against its risk and decant procedures. Whilst this Service cannot determine if a decant was necessary, the landlord has not evidenced it adequately considered its decant policy, which allows the landlord discretion to agree a decant if the circumstances of the case allow it. It therefore acted unreasonably towards the resident considering the reported property conditions.

41. This Service notes the resident requested a property transfer in June 2019 and was provided a form to complete. This Service has not been provided with evidence of whether the transfer application was submitted or any further correspondence related to this. However, this Service would expect the landlord to have provided the resident with support to complete this in the circumstances where she has experienced a long-standing ingress of water at her property. A recommendation has been made to discuss this again with the resident and to assist her with transfer options should she still wish to move homes.

42. Overall, the landlord’s handling of the resident’s reports of water ingress was reasonable. It is acknowledged the cause was due to the fabric of the building and this therefore was outside of its repairing responsibilities. However, it has failed to show it supported the resident by completing a risk assessment, decant assessment or signposted the resident to alternative services for support. Furthermore, the landlord has failed to show it assessed what works it could complete to minimise the effects of the water ingress for the resident. It also failed to actively update the resident, despite being in regular correspondence with the managing agent and freeholder. In the Ombudsman’s opinion, the landlord’s handling of the resident’s reports of water ingress was maladministration.

The associated complaint

43. The resident complained to the landlord on 14 April 2020. The landlord did not provide its stage 1 response until 3 June 2020. This was a delay of 7 weeks and is evidence of poor complaint handling. The landlord did not provide evidence it sought to contact the resident to request or agree an extension, nor managed the resident’s expectation and provided a date she should receive the response.

44. The Ombudsman’s Complaint Handling Code (the Code) explains that within a stage 1 response, the landlord must confirm to the resident details of how to escalate the matter to stage 2 if the resident is not satisfied with the response.

45. The Code also requires the landlord to progress a complaint to stage 2 of the landlord’s complaints procedure if all or part of the complaint is not resolved unless an exclusion ground applies.

46. Within the landlord’s stage 1 response, it explained to the resident it would close her complaint as it did not have repairing responsibilities for the required repairs. Within its stage 2 response, it explained it closed the resident’s complaint as it seemed a resolution was agreed with the freeholder to fund the repair works.

47. The landlord’s stage 1 response failed to explain to the resident how she could escalate her complaint to stage 2 of its complaints process. It also failed to explain her options to contact the Ombudsman to investigate her complaint. Its complaints policy was also inconsistent with the Code, as it should not have closed the resident’s complaint when it provided a resolution. The closure of the resident’s complaint without ensuring the action plan had been completed and a resolution found, led to the landlord losing sight of the matter and not actively communicating with the resident on the progress. This is evidence of a complaint handling failure.

48. The landlord’s complaint handling was inappropriate. It failed to respond to the resident’s complaint within 10 working days as per its complaints policy. It also failed to provide the resident with an opportunity to escalate her complaint and left the resident within the complaints procedure without a clear resolution. In the Ombudsman’s opinion, the landlord’s handling of the associated complaint was maladministration.

Determination (decision)

49. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in its handling of the resident’s reports of water ingress.

50. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in its handling of the associated complaint.

Reasons

51. The landlord was limited in the actions it could take to complete a long-standing repair and prevent water ingress. Whilst its communication with the freeholder and managing agent was reasonable and it commenced legal action to enforce the third parties to comply with their repairing responsibilities, it failed to effectively communicate updates to the resident. It also failed to appropriately assess alternative options to minimise the impact on the resident and failed to show it had adequately risk and decant assessed the resident.

52. The landlord’s complaint handling was unreasonable. It failed to respond to the resident’s complaint within its policy timescales and its complaints policy was inconsistent with the Code. It also closed the resident’s complaint without ensuring the agreed action plan was completed and provided a resolution. This left the resident in the complaints process with no clear resolution or next steps.

Orders and recommendations

Orders

53. Within 4 weeks of the date of this report, the landlord is ordered to:

  1. Apologise to the resident for the failings identified in this report.
  2. Pay the resident a total of £600 in compensation comprising of:
    1. £300 for any distress and inconvenience caused to the resident and the landlord’s failure to risk and decant assess the resident, or consider alternative interventions in its handling of reported water ingress.
    2. £300 in recognition of the distress and inconvenience caused to the resident by its poor complaint handling.

54. Within 8 weeks of the date of this report, the landlord carry out a full senior management review of this case to identify learning and improve its working practices. The review must include:

  1. A review of its risk assessment and decant procedures in relation to identifying resident vulnerabilities. In doing so, demonstrate how it will actively use its vulnerability information to provide any additional support that may be required.
  2. Complete a risk and decant assessment on the resident and her family considering the living conditions caused by an unresolved ingress of water.
  3. Discuss the housing transfer options for the resident and whether she would like to pursue this further, providing her with supporting information to assist her application should she want to move homes.

55. The landlord should provide evidence of compliance with the above orders.

Recommendations

56. The landlord should review its decant policy to ensure it completes decant assessments when emergency repairs are reported.

57. The Ombudsman has recently made a number of orders and recommendations in other investigations to this landlord about reviewing its complaint handling approach. The Ombudsman has therefore not made further recommendations around these aspects of service in this report but expects the landlord to take all relevant learning points from this case into account in its overall reviews of complaint handling.