Southwark Council (202346339)

REPORT

COMPLAINT 202346339

Southwark Council

30 October 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 response to the leaseholder’s:
1. Reports of water ingress and associated damage to her property.
2. Complaint.

Background and summary of events

The leaseholder owns a 2 bedroom flat on the first floor of a block, which she lets out to tenants. She purchased the leasehold title in October 2018. The landlord is a local authority and owns the freehold to the property. At the time the leaseholder raised her complaint, the landlord was in the process of completing major works to the outside of the block.
On 8 December 2023, the leaseholder contacted the landlord to report water ingress from above her property, which she said was affecting the whole flat. An operative attended on the same day but was unable to access the neighbouring property. However, they identified a broken external overflow pipe and carried out a temporary repair to it.
The leaseholder raised a stage 1 complaint on 11 December 2023, which the landlord acknowledged on the same day. She stated that:
1. Since the landlord started the major works to the block, water had been entering her property from above. This had caused severe damp and mould.
2. There had previously been a leak from the neighbouring property, which the landlord had repaired. However the neighbour had told her that their property was not experiencing any leaks and was therefore not responsible for the water ingress on this occasion.
3. She wanted the landlord to re-decorate her flat and pay her compensation for the damage it had caused during the major works.
The landlord’s ‘leaks from above’ team attended the leaseholder’s property on 12 December 2023 to investigate the source of the water ingress. Operatives reported that there was no active leak in the bathroom but that “leaks in the back rooms” were due to the major works contractor repairing the balcony. They noted that the contractor needed to “carry out repairs and put rain water pipe back”, but that the main issue was “condensation build up due to lack of ventilation”.
On 14 December 2023, the landlord’s damp and mould team inspected the leaseholder’s property and reported that:
1. The walls and ceilings in the property were dry.
2. The damp and mould in the property was likely caused by condensation, which was also evidenced by videos the leaseholder had sent it.
3. It was unable to gain access to the above property until 24 January 2024 to check for possible internal leaks. This was because the tenants were away but it would investigate further on their return.
4. There was “nothing defective within the block” or from the major works that would have impacted the building or the leaseholder’s property.
The landlord issued its stage 1 response to the leaseholder on 27 December 2023. It upheld her complaint and stated that:
1. It had attempted to contact the tenants of the property above. However it was unable to gain access. It had then referred the works to its out of hours plumber.
2. The plumber was able to identify the source of the leak and made a temporary repair. It was unable to provide any further information due to “data protection guidelines”.
3. On 14 December 2023, it had raised an order for its damp and mould team to carry out an inspection of her property. The team would contact her directly to arrange an appointment.
4. Its compensation policy did not cover damage to personal belongings. If the leaseholder wanted to cover any losses, she would need to make a claim through its insurer.
5. It apologised that the leaseholder “had reason to submit a complaint”.
On 28 December 2023 the leaseholder contacted the landlord and asked it to escalate her complaint. She stated that:
1. Over the previous 5 years, since having had damp works completed on her property, she had not experienced any leaks or problems with damp and mould. However “all of a sudden”, since builders had put up scaffolding, her flat had suffered leaks both at the front and back.
2. As the tenant above had not been there for a while and the property was not in use, there could not have been an internal leak.
3. The plumber was unable to gain access to the above property. However, the leak, which had damaged her bathroom, toilet and kitchen had “magically” stopped after she made a complaint. She felt the water ingress must therefore have been caused by an external rather than internal issue.
4. She had “every right to know” what had caused the leak.
5. She believed that, while putting up the scaffolding, the operatives had cut the rain pipe. This meant that water was soaking into her walls and entering her property.
6. Instead of trying to give advice on how to manage the damp, she wanted the landlord to repair all the damage it had “deliberately” caused to her property. She wanted it to redecorate her flat and compensate her for all the emotional and physical “stress” she had experienced.
The landlord acknowledged the leaseholder’s escalation request on 2 January 2023. It attended the property on 23 January 2024 to carry out a condensation assessment. It reported that:
1. There was mould in the bathroom, hallway, kitchen, living room and bedroom.
2. The leaseholder informed it that there was “moisture penetration into the living room”. However, it was unable to “fully assess” the outside of the building due to ongoing major works.
3. The leaseholder had stated that the drains had “been disconnected”, and that this could have increased the risk of water ingress.
4. It would reassess the property following completion of the major works.
5. It noted that the extractor fans in the kitchen and bathroom were not working, which would increase the risk of damp and mould.
The leaseholder contacted the landlord on 31 January, and 6, 13 and 27 February 2024 to chase her stage 2 response. She approached the Service for assistance on 14 May 2024. We wrote to the landlord and asked it to send the leaseholder a response by 21 May 2024. On 23 May 2024 the landlord issued its stage 2 response. It stated that:
1. It “sincerely” apologised for its poor complaint handling. It added that it had since procured additional staff to help clear through its overdue cases.
2. Its initial response focused on a leak from above and did not address the leaseholder’s concern that the damp and mould had only started after commencement of the major works.
3. With regard to removal of the rain water pipe, the location of the pipes would likely not cause the level of internal damp the leaseholder had reported.
4. Its contractor had attempted to investigate whether erection of the scaffolding had caused damp into her property. However, it had been unable to gain access. It had asked its major works team to contact her so it could access the property and investigate further.
5. The leaseholder might wish to consider previous advice it had given regarding the installation of a ventilation system.
6. It was not responsible for carrying out internal repairs to her property. In order to assess and be compensated for any damages, she should claim through its insurance provider.
The leaseholder contacted the Ombudsman on 29 May 2024. She said that the landlord had broken a rainwater pipe, which caused water ingress into her property. The property above hers had been empty for 3 or 4 months and the leak only started after commencement of major external works to the block in early December 2023. Although the landlord has sent an operative to check for a leak on 23 December 2023, it had failed to resolve it. The property was becoming “black with mould”.
The landlord booked a further damp and mould inspection for 4 June 2024. However, when it attended it was unable to gain access. The records show that the landlord attempted to contact the leaseholder on 18 an 24 July 2024, and 6 and 28 August 2024 to rearrange the inspection but without success.

Assessment and findings

The landlord’s policies and procedures

Under the terms of the lease, the landlord is responsible for keeping in repair the structure and exterior of the property and the building, including drains, gutters, external pipes, loadbearing walls and roofs. The lease also gives provision for the landlord to enter the property upon reasonable notice for the purpose of complying with its repair obligations.
The landlord’s repairs guide outlines 3 categories of responsive repair. The landlord will attend to emergency repairs, which pose a serious risk to the resident and structure of the property, within 24 hours. Urgent repairs, which include partial loss of electricity or total or partial loss of heating or hot water between 1 April and 30 September are attended to within 3 working days. The landlord will respond to all other non-urgent repairs within 20 working days.
The landlord’s complaints policy outlines a 2 stage formal complaints process. It will acknowledge complaints within 5 working days and will respond to stage 1 complaints within 10 working days. It will respond to stage 2 complaints, which is refers to as the “review phase”, within 20 working days. It states that sometimes it may take longer to provide a response. If this is the case, it will discuss with the resident to explain when they can expect a full response by and seek to agree a new timescale. This is broadly in line with the Ombudsman’s Complaint Handling Code (the Code).
The landlord has a compensation policy to recognise where there have been delays or distress as a result of poor service. Payments range from £5 to £20 per week or £250 to £1000 per year depending on the level impact on the resident. It will also pay compensation of between £50 and £250 in recognition of a resident’s time and trouble pursuing their complaint.

Scope of investigation

The leaseholder has stated that the impact of water ingress into her property has negatively impacted her health both mentally and physically. The Ombudsman does not doubt the leaseholder’s comments regarding her health. However we are unable to draw conclusions on the causation of, or liability for impacts on health and wellbeing. Matters of personal injury or damage to health, their investigation and compensation, are not part of the complaints process, and are more appropriately addressed by way of the courts or the landlord’s liability insurer (if it has one), as a personal injury claim. We have, however, considered whether any failings by the landlord have been the cause of distress and inconvenience to the leaseholder.
The leaseholder has requested compensation for damage to personal belongings. We cannot determine liability or make orders in respect of lost or damaged items. Where the Ombudsman awards compensation, it would typically be to reflect the distress and inconvenience caused to the leaseholder as a result of a failing by the landlord.

Water ingress and associated damage

The evidence shows that when the leaseholder reported water ingress into her property on 8 December 2023, the landlord responded appropriately by sending an operative to investigate on the same day. That they were unable to access the property above due to it being unoccupied at the time was beyond the landlord’s control. It is noted that the landlord acted promptly after it had identified a broken external overflow pipe from the neighbouring property and carried out a temporary repair. It is unclear from the records whether this was the source of one of the leaks. However, in her escalation request dated 28 December 2023, the leaseholder stated that the leak to the front of her property had stopped after she made a complaint. This would suggest that the broken overflow pipe may have been responsible for one of the leaks that the leaseholder had reported.
Following the leaseholder’s stage 1 complaint on 11 December 2023, the landlord acted reasonably by carrying out inspections on 12 and 14 December. Its initial inspection identified leaks at the back of the property. The records show that this was as a result of ongoing works to the balcony, and the temporary removal of a rainwater pipe to facilitate the repair. In its stage 1 response, the landlord correctly advised the leaseholder that she could make a claim for damages through its insurer and provided details on how she could do this.
It is noted that the damp and mould inspection on 14 December 2023 found the walls and ceilings of the property to be dry. Furthermore, it found that there was no evidence the major works had impacted the leaseholder’s property or that there were any external defects that would have caused water ingress. Both inspections concluded that the main cause of the damp and mould was condensation and lack of ventilation.
It is reasonable for the landlord to rely on the outcomes of its inspections. However, its records contain conflicting information as to possible causes for the water ingress. The lack of consistent messaging about the causes of the damp demonstrates poor internal communication and poor communication between the landlord and its contractors.
The records show that the landlord had concluded that the likely cause of the damp and mould was condensation rather than internal leaks or water penetration from the major works. However, it had separately identified leaks at the back of the property as a result of ongoing balcony repairs and the removal of a rainwater pipe, which were part of the major works programme.
Furthermore, it had also identified a broken overflow pipe, which could also have been the cause of water ingress. This would have caused some confusion and given the leaseholder the impression the landlord was trying to attribute the cause of the issue solely to condensation rather than ruling out all other possibilities. This was inappropriate given that records showed the landlord had been unable to fully investigate the matter and that other factors could also have been causing the damp.
The landlord’s damp and mould inspection of 14 December 2023 stated that there was nothing from the major works that would have impacted the leaseholder’s property. This was later contradicted by the findings of its condensation assessment of 23 January 2024. This stated that it was unable to properly investigate any possible external causes of water ingress due to ongoing major works. It added that it would investigate further once the works were completed.
It is evident it had therefore not fully excluded the possibility that the major works could have been a contributing factor. The information it provided following its damp and mould inspection was therefore misleading and would have done nothing to reassure the leaseholder that the major works were not one of the causes of damp in her property. The Ombudsman will make an order that, if it has not done so already, the landlord should inspect the outside of the leaseholder’s flat to check if the major works or any external damage had resulted in water ingress.
Furthermore, the landlord’s inability to fully investigate any external causes of the water ingress meant it had relied too heavily on condensation as the main cause of the problem. This would have worsened the leaseholder’s frustration and given her the impression the landlord was not taking the matter seriously enough.
The landlord acted appropriately by carrying out a condensation assessment of the property on 24 January 2024. This identified that extractor fans in the kitchen and bathroom were not working, which would have increased the risk of damp and mould. Under the terms of the lease, the leaseholder is obliged to ensure these are repaired and maintained. Additionally, the records show that the landlord had recommended on more than one occasion that the leaseholder fitted a ventilation system in order to minimise the condensation in the property. This was reasonable advice given the evidence of condensation build up identified in previous inspections. That the leaseholder chose not to follow its advice was beyond its control.
While the evidence shows condensation was one of issues causing damp and mould in the property, the records indicate that the landlord could have done more to investigate other factors. Despite it giving an undertaking it would try and access the neighbouring property when the tenants returned in January 2024, there is no evidence it did so. There are no records to show it had made any further attempts to contact the owners of the above property after initially trying to gain access in December 2023. There is internal correspondence stating that the landlord believed the damp and mould was caused “purely” by “condensation build up due to lack of ventilation”.
However, it also stated that this was “inconclusive” because it had been unable to gain access to the property above. It is noted that the leaseholder disputed that there was a leak from above and said that her neighbour had confirmed this to her. However, it is evident the landlord felt it needed to check it to rule out the possibility of an internal leak. By failing to do so, it could not demonstrate it had investigated all the possible causes of the water ingress. It would have been reasonable in the circumstances for it to have made further efforts to access the neighbouring property to check for possible leaks, even if the leaseholder had ruled this out herself. If it felt this was no longer necessary, it should have recorded why it had decided not to progress with this. That it did not do so meant it was unable to fully exclude this as one of the causes of the damp the leaseholder was reporting. This was a shortcoming. It is noted however that, had there been a leak from the neighbouring property, which the evidence suggests was also leaseholder owned, it would have been a matter between the leaseholder and her neighbour to resolve.
Overall, the records show that the landlord made reasonable efforts to investigate the cause of water ingress into the leaseholder’s property. It carried out inspections in a timely manner. Furthermore, it is evident it had been hampered in its efforts to investigate possible sources of water ingress. This was mainly due to the lack of access to external areas of the building due to ongoing major works, and unavailability of tenants to provide access to their property. However, the landlord provided conflicting and inconsistent information with regard the possible causes of damp in the property, which would have caused the leaseholder unnecessary confusion and distress. For this reason, the Ombudsman has made a finding of service failure.

Complaint

The Code requires landlords to undertake thorough complaint investigations and to address all aspects of a complaint. The landlord’s stage 1 response failed to fully address the leaseholder’s complaint. It provided a summary of the actions it took in responding to the leaseholder’s report of a leak and stated that it had upheld her complaint. However, it failed to provide any kind of assessment of its actions or details of the failings it had identified that led to it uphold her complaint. Furthermore, despite upholding her complaint, it failed to offer an apology or to consider whether compensation would be appropriate.
It is noted that the landlord stated in its stage 1 response that it was unable to provide further details about the repair to an external overflow pipe due to data protection guidelines. Although this is noted, it could have provided more clarification on why it felt it could not disclose any further details. Failure to do so would only have served to give the leaseholder the impression the landlord was seeking to withhold information. This demonstrates a lack of transparency.
The landlord’s response failed to address the leaseholder’s concerns about major works being responsible for the water ingress into her property. There is no indication it had made any effort to investigate this part of her complaint. Additionally, it had issued the response on 27 December 2023, some two weeks after it had carried out its damp and mould inspection. Despite this, it told the leaseholder that it had raised an order for the inspection and that it would contact her to arrange an appointment. This shows a lack of attention to detail and a failure to properly check the response before issuing it. It is noted that it correctly signposted the leaseholder to its insurer so she could claim for any damages caused by the water ingress.
The evidence shows that it took the landlord nearly 5 months to issue its stage 2 response. Despite the excessive delay, there are no records to indicate it had contacted the leaseholder during this time to provide any updates or agree new timescales. Furthermore, there is no evidence it sought to explain why its response was delayed or offer any apologies. The leaseholder was left to repeatedly chase the landlord for information about her complaint, which should not have been necessary given the landlord’s obligations. That it failed to respond within its timescales or maintain reasonable communication during its protracted investigation period was a departure from its policy, and the Code.
It is noted that the landlord did apologise in its stage 2 response for its poor complaint handling and explained that the delay was due to the complaint handler leaving the organisation. This in turn resulted in a backlog of cases. Although it is noted that landlords’ resources can sometimes be impacted for various reasons, they should have adequate handover procedures and resources in place to ensure they keep delays to a minimum and that complainants are regularly updated.
This Service considers the above complaint handling failures amount to maladministration. At both stages of the complaint there were either failures to provide a thorough response or respond within the timescales of the complaint. The stage 1 response demonstrated a lack of investigation and both responses failed to put things right, or consider redress. In determining an appropriate order for compensation, consideration has been given to the Ombudsman’s guidance on remedies.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s response to the leaseholder’s reports of water ingress and associated damage to her property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s complaint handling.

Orders

Within 4 weeks of the date of this determination, the landlord should:
1. Apologise to the leaseholder, in line with the Service’s Remedies Guidance.
2. Pay the leaseholder the compensation amount of £400, which is calculated as follows:
  1. £100 in recognition of the distress and inconvenience caused by the landlord’s confusing and inconsistent communication regarding the cause of water ingress into her property.
  2. £300 in recognition of the distress and inconvenience caused by its poor complaint handling.
3. It is assumed the major works to the block have been completed. If so, and if it has not done so already, the landlord to inspect the external area of the leaseholder’s property to check if the major works or any external damage caused by them may have resulted in water ingress into her flat. The landlord to report the findings of its inspection back to the leaseholder and the Service.
The landlord to review its complaint training to ensure complaint handling staff always contact residents whenever there are likely to be delays in issuing responses, and agree revised timescales wherever appropriate. It should also be emphasised that complaint responses are checked thoroughly to ensure they address all concerns raised and do not contain incorrect information prior to being issued. The landlord to provide details of its review within 8 weeks of receiving this determination.

Recommendations

It is noted that the landlord had attempted to arrange a further damp and mould inspection of the leaseholder’s property between June and August 2024. The landlord to consider giving the leaseholder a further opportunity to have her property inspected. If it has not done so already, it should provide her with any appropriate advice with regard to managing condensation.