Sovereign Housing Association Limited (202014672)

REPORT

COMPLAINT 202014672

Sovereign Housing Association Limited

31 August 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

The complaint is about the landlord’s response to the resident’s compensation claim about leaks which resulted in a decant.

Background and summary of events

Background

The resident is a shared ownership leaseholder of the landlord. The property is a ground floor flat in a block.
The lease sets out the contract between the landlord and the resident. The resident covenants to pay the rent and service charges, while the landlord covenants to insure and maintain the structure of the property. The lease includes a clause for the suspension of rent if the premises are destroyed or damaged by risks covered by the landlord’s insurance so as to be rendered unfit for use.
The landlord’s policies advised that the landlord operated a two stage complaints procedure at the time of the complaint, and if it had “clearly failed” a customer, it would seek advice from its insurance team in the case of insurance claims.

Summary of events

The information provided advises that in December 2017, the resident reported water ingress at his property. The landlord has detailed its actions at paragraph 21a of this report, and its repairs records show that between February and June 2018, works orders were raised and completed to:
1. make safe ceilings which were bowing due to wet from a roof leak;
2. make safe a bathroom extractor fan which had water running through it from a leak;
3. treat and clear mould in the property, caused by a possible leak from a WC from a privately owned flat above;
4. carry out a roof repair, as an electrician advised a leak affecting two properties was coming through ducting from the roof for a fan;
5. erect scaffolding to investigate leaking vents, replace damaged and missing tiles, and investigate water ingress over a window.
The resident’s account also advises that in March 2018 water was pumped out of a soil vent pipe.
In June 2018, the resident was moved out of the property by insurers and placed in temporary accommodation. The events directly after this are unclear, but in August 2018 a specialist report that appears to relate to buildings or contents insurance said:
1. there were extremely high water readings to bathroom and kitchen walls and ceilings, and an ongoing water drip from a bathroom wall;
2. all damage was localised to a boxed off area where the soil vent pipe ran down all three affected apartments at the block;
3. the water supply contained chloride while the water that affected the property did not, which suggested the water was not from an internal source;
4. it was believed all water damage related to an historical issue with the roof, which had allowed rainwater to travel down a conduit. It was noted that contractors were appointed and any issues related to the roof had been rectified, but damage had continued to worsen at the resident’s flat and this had suffered the worst of the damage being on the ground floor.
The information provided then advises that the landlord responded to some enquiries from the resident on 24 September 2018:
1. It noted a request for rent and service charges to be cancelled or paid by the insurer. It advised that temporary accommodation rent and service charges was covered by insurers, but he still remained liable under the lease to pay rent and service charges at his main home, even when decanted.
2. It noted payments and compensation for water leaks into the property were requested. It noted the resident had been informed that insurance could cover utilities and council tax, but advised that as the source of the water leak had not been identified, it was unable to accept or deny liability for any losses at that time.
3. It noted a list of expenses was provided, and it advised the resident to prepare a claim by clarifying items of loss and how they related to the claim. It explained that once liability was established, evidence of costs to provide to the liable party would help simplify the claims process.
In October 2019, the resident asked claim handlers for the buildings insurance policy, which he said he had requested a few months prior. The information provided advises he was supplied this by the landlord three days later. The landlord made arrangements around this time to visit the resident at his temporary accommodation at his request.
In mid-December 2019, works to the resident’s flat were completed, after which the resident returned to the property on 7 January 2020 and the claims handlers liaised with him to review and finalise his claim and payments.
On 25 February 2020, the resident emailed the landlord in relation to his insurance claim and further to its visit around October 2019:
1. He detailed that he had reported a leak in December 2017, which he was initially informed was an internal issue before water was eventually pumped out of a soil vent pipe in March 2018.
2. He detailed how the issue had resulted in the bathroom and kitchen being affected by water ingress and mould, and which was later agreed required redress and would be covered by insurance. He detailed that he moved out of the property in June 2018 and did not return until January 2020, twenty months later.
3. He detailed distress and inconvenience he experienced before he moved out of the property, which included living in unhealthy looking surroundings, living in fear the leak would worsen, and joining a local health club to use their facilities. He detailed distress and inconvenience he experienced when he moved out of the property and lived in multiple hotels and temporary apartments, which he said was forced on him by the landlord trying to keep costs to a minimum.
4. He detailed that asbestos was removed at the property and that he was potentially exposed to asbestos leakage up until he moved out in June 2018. He also detailed that in 2018 he developed a medical condition and underwent an operation which, due to his living conditions, he decided to fund privately rather than wait for a date provided by the National Health Service.
5. He said the experience had been detrimental to his health and wellbeing; he believed he was entitled to compensation for everything he had endured; and he asked the landlord to forward the claim to the appropriate department and respond with a compensation offer.
In March 2020, the landlord informed the resident that as he mentioned the impact on his health, the claim would need to be investigated by its insurer as a public liability claim, which he agreed to. The resident was advised the entire claim had been passed to the insurers, although he noted he wanted a response from the landlord for the period from December 2017 to June 2018, before the insurer moved him from the property.
In October 2020, the insurers closed the claim from the resident as the claim was repudiated, after which he wrote to the landlord in correspondence entitled ‘compensation and damages claim’ and dated 1 November 2020:
1. He restated the content of his email of 25 February 2020, detailed at paragraph 11 of this report.
2. He explained he was writing to give the landlord the opportunity to settle a court claim that he would be bringing against it. He advised that he sought approximately £95,000 for rent, council tax, utilities, travel, insurance excess, medical surgery, distress, inconvenience, and the mental and physical impact on him.
3. He detailed dissatisfaction that the landlord initially told him to claim through his own contents insurance and did not respond to requests for details of the buildings insurance. He also stated dissatisfaction that he had to continue to pay rent and service charges, despite the lease stating he did not have to pay the landlord during a flood.
4. He detailed his view that the water that caused the leaks came from the roof, referring to a specialist contractor which concluded that the water that penetrated his property was rainwater. He raised dissatisfaction that the landlord had said water ingress was not from the roof as it had not rained the previous day, when water could take time to find a way through a building. He raised concern that there was an unresolved problem with the roof as two neighbours currently had water ingress, which left him wondering how long it would take before his property was affected again.
5. He detailed dissatisfaction with the insurance company’s handling of matters, which related to handling of accommodation arrangements, delayed communication, their assessment of damages claims, the excess he had to pay, their refusal to cover costs for travel, and their refusal to cover costs for accommodation for family visits.
6. He provided evidence toward his claim of photos of current water ingress at properties above him; photos of the previous damage to his property; photos of the roof that he said had unresolved issues; and excerpts from the August 2018 specialist report referenced at paragraph 8 of this report.
On 21 December 2020 the landlord informed the resident that its insurers were dealing with the claim. It advised that he could speak to the insurers directly about the matter and it provided a claim reference number and the insurer’s contact details.
In February 2021, this Service contacted the landlord about a complaint following contact from the resident.
On 17 March 2021, the landlord emailed the resident. It said it understood his complaint involved his claim with the insurer, and if he disagreed with the outcome, he should contact the insurer and follow their complaints procedure. It invited the resident to let it know if there were any outstanding queries related to its own actions and it would investigate. The landlord closed matters after no reply from the resident.
The resident contacted this Service and said his complaint concerned the landlord’s treatment of him; its negligence; and its breach of his right in the lease for his rent to be refunded in the event of a water leak. He said the landlord had neglected the building, failed to identify and fix issues in a timely manner, and there were multiple ongoing failings.
In May 2021, this Service contacted the landlord and asked it to consider the complaint unless there was an exclusion in its policy related to insurance or legal claims; and even if this was the case, to issue a final response saying this.
The landlord provided a response to the complaint on 1 June 2021:
1. It noted the resident reported a leak on 14 December 2017, for which its records advised his neighbour would be contacted to investigate the leak as their property was the likely source. It noted he contacted again on 31 January 2018, he was advised to contact its insurer for damage to his home, and it arranged a surveyor to visit on 1 February 2018. It noted the surveyor then raised emergency works to make safe the bathroom and arranged investigation into the sources of the leaks. It advised that subsequent investigations discovered multiple leaks, which each required identification and resolution and impacted the length of time it took to resolve issues. It explained that leak sources included an extractor fan system which was identified in February 2018 following the attendance of the surveyor, which was quickly established and dealt with. It advised that issues with pipework for a hot water system were identified in April 2018; and a leaking WC was identified in October 2018.
2. It explained that it takes time for buildings to dry after leaks and so the timescales to establish that there were further water ingress issues were not unreasonable. It also noted that plumbing for individual flats were leaseholder responsibility and it would not be involved in addressing leaks in leasehold flats.
3. It noted that the resident contacted it during the period about the issues and the concern it caused him. It advised that the initial response to his contact in December 2017 was appropriate as trying to find a leak from the flat above was the correct starting point for investigation. It advised that it had been unable to establish if his neighbour was contacted and concluded it was unlikely this was done as there was no record of this. It apologised that its apparent lack of action may have contribute to a delay in addressing the leaks the resident suffered.
4. It noted the resident raised his experience while decanted from the property, and advised that the decant and repairs to the property were handled by the insurer as a buildings insurance claim. It advised that it had no involvement with this process and so had to refer the resident to the insurer.
5. It noted the resident made a claim for personal injury, expenses and compensation. It advised that its policy is that any claim that includes personal injury is handled by its insurers as a public liability claim. It noted that the resident’s claim was passed to the insurer in March 2020 and they had contacted the resident to advise that liability was not accepted, the claim was denied, and that he should seek legal advice if seeking to progress the public liability claim.
6. It concluded that it had identified minor errors as it did not likely contact the resident’s neighbour when it said it would, however its response was in accordance with the lease and other issues should be taken up with its insurer which acted for the landlord in such matters.
The resident subsequently brought the complaint to this Service. He raised concern that the landlord appeared to blame water ingress on an above property, and failed to mention extensive issues with the roof which was the cause of his issues. He was dissatisfied that the landlord referred the matter to its insurer, as the landlord was responsible for the maintenance of the building, and was responsible for refund of rents during the period he was unable to live at the property. He said it was clear the landlord was trying to avoid liability but that he had evidence that clearly put them at fault. He referred to the specialist report at paragraph 9 of this report that suggested water ingress was from the roof. He also referred to an email a neighbour had received from the landlord, which said:
1. there had been some issues with the roof and a vent cover had worked loose and allowed water ingress; and more recently, a private gas boiler installer had used an incorrect flue for the roof which had also allowed water ingress;
2. the landlord had fixed both issues and an inspection had found a flat roof covering to be in good condition;
3. there were some loose missing tiles on a pitched roof which were recorded and works would proceed in the near future.

Assessment and findings

Scope of the investigation

The Ombudsman’s remit in relation to complaints is set out by its Scheme.
At the time of substantive events, paragraph 39(e) of the Housing Ombudsman Scheme advised that the Ombudsman will not investigate complaints which, in its opinion, “were not brought to the attention of the member as a formal complaint within a reasonable period, which would normally be within six months of the matters arising.” This reflects that it is normally considered reasonable for complaints to be made closer to the time of events complained about, as the longer time goes on, the more the ability to conduct an effective investigation may be impacted. This investigation notes that the complaint made by the resident in 2020 was made twenty months after events which are the focus of the complaint.
Paragraph 39(i) of the Scheme also states that the Ombudsman will not investigate complaints which in the Ombudsman’s opinion “concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.” This means it is not within the Ombudsman’s authority or expertise to determine cause, liability or negligence for damages, which this investigation understands the resident has been informed. The Ombudsman can assess if the landlord has followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case. While a view on the position can be taken by reference to law and policies, if this is disputed, only a court can offer a definitive and legally binding decision.

The landlord’s response to the resident’s reports about an ongoing leak which resulted in a decant

This Service understands the resident feels the landlord has failed to acknowledge issues and accept liability for the cause of leaks being issues with the roof. The parameters of the investigation set out above means that this Service’s consideration of matters is affected by when the events complained about occurred, as well as by the nature of the complaint. This means it is hard, for example, for this investigation to fully assess the service the landlord provided in periods such as December 2017 to June 2018, before the insurer moved the resident from the property and a period he asked the landlord to address. This investigation goes on to consider matters with these in mind.
This Service recognises it will have been distressing for the resident to experience ongoing problems with water ingress, however it is not uncommon for such issues to require repeat inspections and various attempts at identifying and addressing the problem before a fully effective solution is found. The landlord seems reasonable, given the property was on the ground floor, in its explanation that above properties were initially considered potential sources for the leak. It was also reasonable to explain delays can arise from waiting for areas to dry, given this can be a main way to establish if an action has resolved matters.
The resident raised dissatisfaction about handling of matters during his decant. This Service understands the resident’s experience will have been distressing and inconvenient, and the time he was out of his home does seem very lengthy. The landlord seemed reasonable however to refer the resident to insurers, as if the repairs and decant were managed by insurers, an insurance claims or complaints procedure is the most appropriate procedure to consider claims and complaints related to these aspects.
The resident believes the landlord should refund him the rents during the period he was unable to live at the property on the basis of a clause in his lease. It is not in this Service’s expertise to determine if the lease’s provision for rent suspension was applicable in the circumstances, or if the landlord breached this term in not refunding rents. The landlord informed the resident in 2018 that while temporary accommodation rent was covered by insurers, he still remained liable to pay rent and service charges at his main home, even when decanted. This shows that the landlord set out its position on this request early on, and its response that the resident remained liable for rents while insurance covered decant costs is in line with normal process for a decant. This investigation does recommend that the landlord set out its position on the resident’s specific lease term, considering its complaint response did not do this; however if this remains disputed, only a court can offer a definitive and legally binding decision on this aspect.
The resident is clearly of the view that certain information indicates more fault on the landlord’s part than the landlord and its insurer accept. The most appropriate procedure to consider liability is an insurance procedure, which the resident’s repairs and decant were managed under and his claims were referred to. It can be reasonable for liability claims to be referred to a landlord’s insurer, even if a claim is addressed to a landlord and relates to their repairs responsibilities, to allow expert assessment of the claim and calculation of any damages.
The information provided by the resident, such as the August 2018 report, advises there was an issue with the roof which allowed water to travel down a conduit and resulted in water ingress via a soil vent pipe. The report supplied by the resident advises this was resolved prior to August 2018 and his account advises water was pumped out of the soil vent pipe in March 2018. This does not seem inconsistent with the landlord’s records/statements that leaks came via conduits such as ducting on the roof, the extractor fan system, and leaking vents. The resident’s reports about extensive issues specific to the roof are not supported by the evidence seen by this investigation.
The resident details dissatisfaction about the landlord’s handling of leak reports and insurance issues, however the available information does not evidence specific service failures or show the way decisions that were made about liability will have been inappropriate. There was ultimately opportunity for the information to have been considered within an insurance procedure, and it is not in this Service’s expertise to definitively determine whether, on the basis of the information, the resident’s claim should be successful.

Determination (decision)

In accordance with Paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s response to the resident’s compensation claim about leaks which resulted in a decant.

Reasons

The assessment of historic matters may be affected if a complaint is not brought to the Ombudsman within a reasonable timeframe, however the landlord provided reasonable explanation about initial suspected sources for the leak and about the delays that can occur in investigation of leaks. The landlord was reasonable to refer the resident to a separate procedure for the insurer’s handling of the decant. The landlord responded reasonably to a rent refund request, although a recommendation is made in relation to this. The information which the resident feels evidences the landlord’s liability seems consistent with the information which will have been considered by the landlord and insurers, and it is not in this Service’s expertise to definitively determine whether, on the basis of the information, the resident’s claim should be successful.

Orders and recommendations

Recommendation

The landlord to review the resident’s lease terms and set out its position to him in writing on the suspension of rent in his circumstances. The landlord should inform this Service of its intention in respect to this recommendation within four weeks of this decision.