She first complained to the ombudsman about a number of repair issues in February 2000. At that time, she had not used the internal complaints procedure and the ombudsman referred the dispute back to the association, after which it carried out a visit and many of the repairs were dealt with. However, two items of disrepair were not addressed: a partition wall with another property was of poor quality and let in noise, and the front door let in water and draughts and often dropped on its hinges.
The leaky front door
The tenant reported to the association that there was a draught through the front door in late 1995, and it agreed to deal with the problem. Despite this, no work was ordered until early 1998. The association said that the work was cancelled by the complainant as soon as an order was finally made.
Two years later the association proposed to replace the front door altogether, but the district council's planning department would not agree to that.
The association then drew up a specification for repairing the door, but its contractors did not actually go to the complainant's property until the following year. When they did so, early in 2001, the contractors gave the tenants no warning of their arrival. As they could not guarantee they would either complete the work or secure the door by the end of the day, the tenant told them not to start.
The association agreed that works would be put off until the tenant notified them of a more convenient start date. The tenant then stated that she did not want the work to be done until her compensation claim for the repair failures was settled. She argued that, as a result of problems with the door, her family had suffered poor health, inconvenience, and actual financial loss because of extra heating costs.
The thin partition wall
The tenant complained about the inadequate soundproofing of a partition wall in mid-1995. The association at first told her no action could be taken because the age and structure of the building meant it was not possible to soundproof it in the same way as newly built houses. However, at a meeting with residents later that year, a manager made a commitment that the association would install fibreglass board to the partition wall to help reduce noise. More than four years later, though, no work had been done.
Early in 2000, after another visit to the property, the association repeated its commitment. The tenant, at that point, indicated she would like the work to be deferred until the summer, so the association agreed to contact her again at a later date.
It did not do so, and the tenant had to pursue the issue once again at the end of the year.
As a result, early in 2001 another senior manager visited the property and then wrote to the tenant proposing to re-evaluate the problem and asking her to contact him to arrange for a maintenance officer to survey the wall. It was not clear whether or not she did so, but she wrote to the association soon afterwards asking for compensation for its failure to deal with the wall over six years.
After that, the association commissioned a specialist acoustics firm to assess the problem. Its report noted substandard sound insulation performance, concluding that action had to be taken to remedy the problem. The association accepted the need to carry out the work and began to investigate the practicalities of the proposed solution, which meant that both the tenant's household and the neighbours had to move out temporarily. It denied the tenant access to the specialist report.
In mid-2001 the complainant asked for the work to be delayed until compensation was agreed. She claimed her family had been severely affected by the problems with the wall, not only because of the noise pollution but also the loss of heating, the penetrating smells from the kitchen in the property next door and the lack of privacy because of sound travelling out of their home.
The family had been severely affected by noise pollution, loss of heating, smells from the kitchen next door and lack of privacy
Liability and compensation
The association accepted that it should have carried out repairs for the two outstanding problems but was not able to explain why it took no action for more than four years.
It eventually attempted to fix the door but was frustrated by conservation restrictions. It also planned to work on the partition wall, but this was made difficult because the affected occupants had to move out.
When the complainant made a formal compensation claim, the association sent it to its solicitors. The exact terms in which the solicitors were instructed were unclear; it appeared instructions were given by phone, followed by a confirmation letter. Regardless, as a result the association offered compensation, but on a "without prejudice" basis and without accepting liability.
The tenant was unhappy and asked for the case to be considered by a panel at the final stage of the association's complaints procedure. The panel acknowledged fault by the association and offered compensation for failing to honour its repair obligations.
But the tenant remained dissatisfied and re-submitted her complaint to the ombudsman.
The ombudsman's investigation revealed that the association had applied the specialist firm's and the solicitors' advice partially, interpreting it to the detriment of the tenant and ignoring its responsibility for the substantial delay to deal with the problems. A senior manager gave misleading technical advice to the association's panel based on that biased interpretation.
The ombudsman concluded that the association was responsible for maladministration. Arguably, the tenant should have done more to follow up the issues instead of sometimes allowing a long time to pass without dealing with the problem. However, the association had an absolute duty to carry out the repairs from its first knowledge of them. It was clear that the association allowed the complainant's home to remain in an unacceptable condition for a number of years, and compensation was due.
The ombudsman also concluded that the association's failure to admit liability for the failure to carry out repairs, based on the mis-application of expert and legal advice, was maladministration. This led to inadequate offers of compensation, both initially and after the panel's hearing.
Debatably, its liability ended when the tenant asked that the repairs be delayed pending resolution of the compensation claim, but by then too much time had elapsed and there was no justifiable reason as to why the association had failed to meet its statutory, contractual and regulatory obligations.
The ombudsman considered that the amounts of compensation assessed by the panel for some of the tenant's claims were adequate, but that other sums offered were inadequate. He therefore increased the award to what was, in his opinion, a more reasonable total, even though it was still not as much as the tenant had asked for.
He also instructed the association to apologise to the tenant and compensate her for the time and trouble taken to pursue her complaint.
Source
Housing Today
Postscript
Dr Mike Biles is the independent housing ombudsman. For more information contact 020 7836 3630 or go to www.ihos.co.uk
No comments yet