Southwark Council (202016039)

REPORT

COMPLAINT 202016039

Southwark Council

17 February 2022

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. This complaint is about:
   1. The landlord’s handling of the resident’s reports of two roof leaks at the building;
   2. The landlord’s response to the resident’s concerns about leaking asbestos;
   3. The landlord’s refusal to provide a proportionate refund of service charges for the period the resident was decanted;
   4. The landlord’s complaint handling.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
3. After carefully considering all the evidence, in accordance with paragraph 39 of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.
   1. The landlord’s refusal to provide a refund of service charges.
4. Paragraph 39 (g) of the Scheme says the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, ‘concern the level of rent or service charge or the amount of the rent or service charge increase’
5. The Ombudsman cannot determine whether service charges are reasonable or payable. Complaints about the applicability of service charges are therefore outside the jurisdiction of this service. This is because the First Tier Tribunal (Property Chamber) is better placed to consider them. It is noted the landlord’s stage two complaint response notified the resident how she could dispute the charges.

Background and summary of events

Background

6. The resident was a leaseholder of the property but has since moved elsewhere. The lease began on 11 October 1999. The property is a one-bedroom flat on the second floor of a low-rise block (the building).
7. The lease agreement shows the landlord is responsible for maintaining and repairing the structure of the building, along with the communal areas and communal heating system. The resident was responsible for the property. It confirms the resident was obliged to pay an annual service charge in respect of various costs, including the maintenance and management of the building and the estate. The agreement does not detail circumstances when the charge will not apply.
8. The landlord’s repairs guide shows repairs are categorised as emergency, urgent or non-urgent.  Urgent repairs will be attended within 24 hours and are considered to present serious risks to health and safety, or the structure of the building. Faults will be made safe in the first instance, but reattendance may be required to complete a full repair. No timescale is given for full repairs.
9. Non urgent repairs are routine issues, presenting no serious risks to health or the structure of the building, to be completed within 20 working days. The guide shows this can include slipped or missing tiles causing water penetration. There may be a reasonable delay prior to commencing major works.
10. The landlord operates a two stage complaints policy. It provided a copy of its complaints policy document effective from 1 March 2021. Since the Ombudsman was unable to find a more relevant document online, the landlord’s document was used for the assessment.
11. The document confirms complaints will be acknowledged within three working days. A full response will be issued within 15 working days at stage one. At stage two, responses will be issued within 25 working days.
12. It says complaints concerning matters that are subject to an insurance claim are not covered by the policy. Compensation should only be considered where the landlord has identified maladministration. The landlord will usually only consider compensation if the complaint has been adequately resolved.
13. The landlord’s insurance policy document sets out the cover provided in the event of loss or damage to landlord’s buildings. Distress and inconvenience are not insured risks covered by the policy.

Summary of events

14. The landlord’s repair history shows a leak was reported in the building’s sloping roof on 1 September 2020. Its repair order said all rooms (at the property) were affected. Inspection and remedy were required. The resident has confirmed this was her initial report of the leak.
15. The landlord’s internal correspondence shows the resident’s formal complaint was referred for investigation on 1 October 2020. The accompanying notes said the resident reported water was “pouring like a shower” in the building’s communal areas. It was also leaking into the property through the attic. No progress had been made with the repair, and a temporary fix was needed because the resident was worried about further damage in the event of rain.
16. Additional correspondence shows the landlord was waiting for scaffolding to be erected on 8 October 2020. It also shows the landlord’s repairs team were aware the resident had raised a formal complaint.
17. Later internal correspondence shows the scaffolding was completed on
    17 October 2020. The landlord’s roofing contractor attended the building on
    20 October 2020 and identified several issues in need of repair. This was seven weeks, or 35 working days, after the resident’s initial report. The Ombudsman has not seen a copy of the roof inspection report.
18. The works order for the leaking roof was marked complete on 28 October 2020. A separate works order was raised the same day, it said the resident reported water leaking into the light fittings from above. As a result, the electrics needed to be made safe. This order was also marked complete the same day. The repairs history does not contain relevant further information.
19. The landlord’s stage one response was dated 17 November 2020. This was 33 working days after the complaint was referred. It acknowledged an agreed outcome deadline of 23 October 2020 was missed. A timeline of events, beginning with the case handler’s involvement and ending with the completion of roofing repairs, was provided. No dates were included in the timeline. An apology was offered for the length of time taken to resolve the “enquiry”, but no formal case outcome was provided. It said the case had been closed but the resident could request a review. The landlord’s correspondence shows it was issued to the resident the following day.
20. The landlord’s timeline confirms the resident chased the repairs on multiple occasions and was unhappy with the level of damage being caused to the property. It shows a tarpaulin roof cover was explored as a temporary fix but was ultimately not possible. The property was eventually surveyed by the landlord’s insurer who advised the resident to leave immediately on safety grounds. The insurer would source alternative accommodation. The resident’s belongings would be put into storage.
21. The resident emailed the landlord on 20 November 2020. She said she wanted to escalate her complaint in line with her email from 27 October 2020. The Ombudsman has not seen a copy of this email. The main points were:
    1. The resident was forced to leave the property on 11 November 2020 as it was uninhabitable.
    2. The insurer’s loss adjuster said she should leave immediately and would be decanted for at least three months.
    3. Ceilings throughout the property were bowing under the weight of water and were at risk of collapse.
    4. Lighting at the property had been disconnected for two weeks prior to the decant.
    5. Some of the ceilings were found to contain asbestos, which needed to be removed. Significant remedial and reinstatement works were required.
    6. The situation was distressing, inconvenient and avoidable. The resident had been chasing the repair from the outset to avoid the level of damage escalating.
    7. Only the landlord’s roofing contractor had attended the leak and no internal inspection of the property was undertaken until around two weeks ago. This inspection was at the resident’s prompting. The landlord should have arranged a surveyor’s inspection.
    8. The resident understood the roof directly above the property had not been inspected since the scaffolding (now removed) was only erected to the lower portion of the roof. It was therefore deemed unsafe to inspection the upper portion.
    9. The leak should be repaired urgently, and any secondary repairs should be completed promptly. The resident’s service charge should be credited for the period she was away from the property, and the distress and inconvenience caused should be acknowledged.
22. The landlord issued a section 20 notice to the resident on 24 November 2020. The notice said the landlord proposed to erect scaffolding and install roof vents. Since there was no existing ventilation, this was needed to release trapped condensation in the loft space and prevent it from affecting the ceilings and electrics directly below.
23. The resident submitted an asbestos enquiry to the landlord on 7 December 2020. She said white stained water was evident on the roof overhanging her balcony. She was advised this was likely to be asbestos, which had previously been confirmed present in the property’s ceilings following testing by the loss adjuster. She said roof and loft repairs were due to be carried out shortly, but they did not include asbestos removal. On that basis, she asked for the roof to be tested in line with the landlord’s maintenance and repairing obligations.
24. The landlord’s asbestos specialist responded the following day. He said panels above the balcony were called soffit and “strongly presumed” to contain asbestos. However, they were not physically inspected due to the associated fall risk. Any works likely to disturb the fabric of the building required a prior asbestos survey. However, since asbestos containing materials did not leak asbestos, it was likely the leak had only stained the soffits. Images of the staining were requested for assessment purposes.
25. Following a review of the images, the landlord updated the resident the same day. It said the soffits looked to be in good condition and were not damaged. The streaking was identified as calcium carbonate left behind during evaporation. This could be cleaned safely with water and washing up liquid. Internal correspondence suggests the roofing contractor told the resident the streaks may contain asbestos.
26. Internal correspondence from 8 December 2020 shows the landlord gained access to the loft space on 25 November 2020. It said “extreme condensation” was identified which was subsequently traced to a burst pipe. This was around 12 weeks after the resident’s initial report. The roofing contractor had repaired slipped and defective tiles, but the resident advised the problem was still ongoing. This prompted the landlord to visit the site having initially agreed to the contractor’s recommendation to install venting. This information supports the resident’s comments around the suitability of the initial investigation works.
27. The landlord’s communal heating specialist carried out a further inspection on
    10 December 2020. Internal correspondence confirms he found the water had stopped leaking. The condition of the loft space suggested the damage was caused by condensation rather than a leaking roof. Ducting containing heating pipes was identified. He noted an underground mains leak on the communal heating system was recently repaired, and suggested steam from this leak had escaped through the ducting into the loft space. He recommended leaving the roof space to dry and considered using dehumidifiers.
28. The landlord issued its stage two response on 8 January 2021. This was 32 working days after the resident’s escalation request. It addressed the resident’s concerns around the leaks, a lack of follow up repairs to the resulting damage (including asbestos removal) and service charges. The main points were:
    1. The landlord initially thought the roof was leaking and completed corresponding repairs on 3 November 2020. During these repairs it noted pipes were venting into the loft.
    2. Later, it found steam from a burst communal heating pipe was venting through ducting causing “extreme condensation” in the loft.
    3. No further leaks were reported since the heating pipe was fixed. The property would be left to dry for a period, but further leaks should be reported.
    4. The resident raised a claim through the landlord’s insurer. The insurer would oversee the resident’s claim for compensation.
    5. The landlord’s relevant specialist confirmed asbestos was not leaking on
       8 December 2020. This assessment was based on pictures the resident provided.
    6. The service charges related to the works along with the upkeep of the communal areas. The resident was liable for the full charges despite having temporarily moved to alternative accommodation. The charges could be challenged through a tribunal.
    7. The complaint was upheld. However, the landlord’s compensation policy did not allow compensation to be awarded while an insurance claim was ongoing.
29. The landlord’s Internal correspondence, from 19 January 2021, shows a further inspection was completed on 13 January 2021. It said the inspection was completed while it was raining but the loft space was found to have dried. The resident’s contractors were still working but no further works were required from the landlord. The property was unoccupied at the time of the inspection. The landlord later said it was unable to confirm when the resident returned to the property.
30. The resident emailed the Ombudsman on 4 May 2021. She said she returned to the property on 10 March 2021 following the insurer’s completion of reinstatement works. However, the landlord had not reinstated damaged communal areas and works including communal lighting, decoration and mould removal were still required. She also said she should be refunded four months of service charges.
31. During a phone call on 8 February 2022, the resident confirmed the insurance claim was settled. She recalled the damage was so extensive the value of the settlement was around £57K. She was willing to provide supporting paperwork if required. While she no longer lived at the property, the leak had occurred during a period when she was working full-time and studying part-time. She was given two flood lights, to light the property, after the electrics were made safe. Overall, she said the situation was distressing and inconvenient.

Assessment and findings

The landlord’s response to the resident’s reports of two roof leaks

32. The lease agreement shows the landlord is responsible for maintaining and repairing the structure of the building including the roof. The timeline shows it took 35 working days, while the scaffolding was erected, for the landlord’s roofing contractor to complete an initial inspection. This was 13 working days after the resident’s report of water “pouring like a shower” into the building when it rained. This was 15 working days outside of the landlord’s timescale for routine repairs.
33. Ten weeks passed before the resident was decanted immediately on safety grounds, on 11 November 2020, following a professional inspection by the insurer. The landlord’s stage one response shows she was frequently chasing repairs during this time and seeking an interim solution. While her later correspondence suggests this was due to concerns around the escalating level of damage, the Ombudsman has not seen the landlord’s contact records to fully confirm this.
34. Ultimately, it took the landlord 12 weeks, until 25 November 2020, to identify the cause of the problem. From the information seen, this is because internal inspections were not attempted by the landlord until much later in the timeline. Overall, this represents an unreasonable response time given the circumstances.
35. It is accepted there were two leaks with seemingly different causes. Further, the resident was responsible for maintaining the property. However, the landlord could have reasonably traced the source of the leak earlier if it had inspected the loft through the resident’s flat. If that happened, the heating fault may have been detected and the decant could have been avoidable. The landlord attended the property on 28 October 2020 to disconnect the lights. The landlord was responsible for the communal heating system in line with the lease agreement. An internal inspection had increased relevance if the landlord was unable to reach the flat roof, above the property, due to the height of the scaffolding. Though the resident’s comments around this were noted, no evidence was seen to confirm this area was not inspected externally.
36. Landlords are required to look at the condition of properties using a risk assessment approach called the Housing Health and Safety Rating System (HHSRS). HHSRS does not set out any minimum standards, but it is concerned with avoiding, or minimising potential hazards. Dwellings should not contain any deficiency that might give rise to a hazard which interferes with, or puts at risk, the health or safety of the landlord’s occupants. Landlord’s typically use monitoring as a means of assessing, and controlling, hazards.
37. Given the above, this assessment found the landlord could have reasonably identified the increasing level of damage, and therefore risk, during the timeline based on the resident’s reports. It therefore found the landlord demonstrated an insufficient level of health and safety, or resolution, focus during its handling of the leaks. As a result, the landlord’s handling was found to amount to maladministration overall.
38. It is understood the landlord did not have the benefit of hindsight while it was managing the leaks. That said, it accepted the substance of the resident’s complaint in its stage two response. While it is acknowledged the landlord identified delays and failures during its complaint investigation, it failed to offer proportionate redress given the circumstances of the case. This was found to stem from the landlord’s complaint handling which is considered below.

The landlord’s response to the resident’s concerns about asbestos.

39. The timeline shows the landlord responded to the resident’s report of asbestos concerns within 24 hours. The evidence shows the response came from a qualified professional with relevant expertise. This initial response demonstrated a strong understanding of both the building’s construction and the potential hazards associated with handling asbestos as a material. That said, photographic evidence was also sought to allow a more comprehensive assessment to be made.
40. The evidence confirms the images were examined quickly, and the resident was given a final reply within the same 24-hour period. Since any physical inspection involved risks around working at height, it was reasonable for the landlord’s expert to conduct a desk-based assessment of the photographs. This also allowed the landlord to issue a prompt response to the resident.
41. Given the above, this assessment found the landlord’s response to the resident’s concerns was appropriate. It is noted the advice about leaking asbestos came from a general specialist, the roofing contractor, rather than a subject matter specialist. It is also reasonable to conclude the insurer was likely to highlight any asbestos related safety concerns, given the evidence suggest it was aware the material was present at the property.

Complaint handling

42. This assessment considered the landlord’s complaint handling in conjunction with the Housing Ombudsman’s Complaint Handling Code (published July 2020). The Code contains a section around “Appropriate remedy” which is applicable given the resident’s complaint was upheld at stage two. Section 5.6 of the Code says, “Any remedy offered must reflect the extent of any service failures and the level of detriment caused to the resident as a result”.
43. The landlord was aware the resident experienced significant disruption due to its handling of repairs. For example, its stage one response shows the resident’s belongings would be placed in storage while the resident was decanted. While this confirms inconvenience occurred, the landlord was also aware of the resident’s distress based on her escalation request. However, beyond apologising, the landlord took no action to address either of these issues in its complaint response.
44. The landlord’s rationale for not awarding redress was based on its complaints policy, which says matters subject to an insurance claim are not covered, and compensation is not usually awarded unless a complaint has been adequately resolved. However, the landlord’s insurance policy document shows distress and inconvenience were not insured risks covered by the policy. Nor were distress and inconvenience even mentioned in the policy booklet.
45. It is therefore reasonable to conclude the insurance settlement did not account for either of these factors which, based on the evidence seen, remain unaddressed. This outstanding fairness issue can be inferred from the resident’s request for a refund of service charges. Though the compensation policy shows complaints should be resolved before compensation is awarded, and the claim was still ongoing when the stage two response was issued, there is no indication the landlord reviewed its complaint response following resolution of the claim.
46. Though the wording of the landlord’s policy was noted, no evidence was provided to show the resident’s distress and inconvenience were appropriately reflected in the insurance settlement. The policy booklet shows the policy is focussed on the cost of building repairs. As a result, this assessment found the landlord failed to offer proportionate redress contrary to the requirements of the Complaint Handling Code.
47. Section 3.11 of the Code sets out the Ombudsman’s expectations in terms of response timescales. It shows landlords should respond within ten working days at stage one and within 20 working days at stage two. If this is not possible landlord’s should contact the complainant and provide an explanation along with a new response date. This should not exceed ten working days. It is noted the landlord’s own timescales are not compliant with the Code. The landlord was also unable to meet its own timescales at either stage. No information was seen to show the resident was made aware of these complaint handling delays, which amounted to several weeks.
48. Given the above, this assessment found there was maladministration on the part of the landlord in respect of its complaint handling. The landlord is encouraged to ensure redress for distress and inconvenience is considered independent from any insurance claim. Awards for distress and inconvenience can be made irrespective of whether an insurance claim is successful or not because they typically address different issues.

Determination (decision)

49. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration in respect of:
    1. the landlord’s handling of the resident’s reports of two leaks at the property.
    2. the landlord’s complaint handling.
50. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in respect of the landlord’s response to the resident’s concerns about leaking asbestos.

Reasons

51. The landlord’s overall response timescale was unreasonable. Internal inspections were not conducted until late in the timeline despite the resident’s repeated contact about the worsening problem. There is no evidence appropriate monitoring of the leak took place. The resident was ultimately decanted by the insurer’s loss adjuster on health and safety grounds. This was due the landlord’s delays in correctly identifying the cause of the leaks and taking appropriate remedial action.
52. The landlord’s asbestos specialist responded quickly to the resident’s concerns. Her evidence was assessed appropriately, and no safety concerns were identified.
53. Though the landlord upheld the resident’s complaint, no evidence was seen to show her distress and inconvenience was appropriately addressed. This was found to stem from the landlord’s complaints policy, which did not conform to the Ombudsman’s Complaint Handling Code in respect of response timescales. There were also delays in the landlord’s complaint handling.

Orders and recommendations

Orders

54. The Ombudsman orders the landlord to:
    1. pay the resident £600 in total compensation within four weeks comprising:
       1. £500 for the distress and inconvenience the resident was caused by the landlord’s handling of the two leaks
       2. £100 for the distress and inconvenience caused by the above identified complaint handling failures

This award is in line with the Ombudsman’s expectations for instances where a landlord has failed over a considerable period of time to act in accordance with policy – for example, to address repairs; to respond to antisocial behaviour; to make adequate adjustments. This is a reasonable benchmark given the circumstances of the case.

Recommendations

55. The landlord to review its processes for handling cases involving severe leaks. This is to ensure risks are monitored and controlled appropriately.
56. The landlord to review its complaints policy in conjunction with the Housing Ombudsman’s Complaint Handling Code to ensure the document is compliant and compatible.
57. The landlord to raise a works order to inspect the building’s communal areas, with a view to repairing any damage confirmed to be resulting from the leak.
58. The landlord should provide evidence of compliance with the above order and confirm its intentions regarding the recommendations within four weeks of the date of this report.