Sovereign Housing Association Limited (201907579)

REPORT

COMPLAINT 201907579

Sovereign Housing Association Limited

11 March 2021

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 reports about:
1. Flooding and water ingress at the property.
2. The cooker at the property.
3. The electrics at the property.
4. The permanence of her occupation at the property.
5. Water ingress at her previous property.
6. Complaints handling.

Jurisdiction

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.
After carefully considering all the evidence, in accordance with paragraph 39(a) of the Housing Ombudsman Scheme, the following complaints are outside of the Ombudsman’s jurisdiction.
1. The cooker at the property;
2. The electrics at the property;
3. The permanence of her occupation at the property.
4. Water ingress at her previous property
This is because the Housing Ombudsman Scheme, which gives the Ombudsman his investigatory powers, states that we are unable to investigate complaints that have not exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale. As there is no evidence of the above complaints having progressed through the landlord’s complaints process, the Ombudsman is unable to consider them for formal investigation. The complaints about water ingress/flooding at the property and complaints handling are within jurisdiction and have been considered below.

Background and summary of events

Background

The resident occupies the property under an assured tenancy, which began 19 June 2017, with her partner, who is joint tenant, and her adult disabled daughter.
The resident moved into the property pursuant to an agreed move further to water ingress that had occurred in her previous property let to her by the landlord.

The parties’ respective obligations

The landlord is under an obligation to keep the property in good repair including the drains but is not responsible for any repair or replacement that is needed because of damage or neglect caused by the resident. Repairs should be carried out within a reasonable time and in line with the landlord’s published repair timescales.
The law (section 9a of the Landlord and Tenant Act 1985) implies an obligation into the tenancy agreement that the landlord must ensure the property is ‘fit for human habitation ‘in relation to.. drains’. A home is unfit for habitation if, and only if, it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition.
Damp can also be a hazard in relation to which the local authority has enforcement powers under Part 1 of the Housing Act 2004, where damp is considered to be a hazard.
The landlord’s repairs policy provides that it must give all responsive repairs a priority based on urgency and risk. It will always consider a customer’s vulnerability and information given to it at the time of reporting a repair when deciding how quickly it needs to respond. Emergency works are defined as ‘..only severe flooding or water running into electrics’.
Under the tenancy agreement, the resident has the following obligations:
1. to report any defects to the landlord immediately and carry out small repairs such as unblocking drains where the resident has caused the blockage.
2. to allow access to the landlord and its agents to inspect and carry out health and safety checks, and repairs.
3. not to damage any of the landlord’s property.
4. There is an implied term for the tenant to maintain the property in a ‘tenant-like manner’.

Summary of events

On 7 February 2020, the resident reported to the landlord by telephone that the external drain was not “fit for purpose” as water was draining away from the wall onto the stone area of the property and causing problems to the bedroom. It is not disputed that the resident was unwilling to allow the landlord access to inspect the interior of the property at the time, therefore the landlord could only inspect from the outside.
It is not disputed that some time in February 2020, the resident placed turf over the front drain shared with a neighbouring property
On 28 February 2020, the landlord attended the property for an inspection. The landlord concluded that the resident blocking the drain with turf caused the drain to overflow and to flood the front and side paths to the neighbouring property and removed the turf.
Following the inspection, the landlord wrote to the resident on 3 March 2020 and reported that it had found no ‘issues’ with the drain and therefore could see no reason why the drain would have caused damp issues inside the resident’s property. The landlord also stated that it was reported the drain had been blocked again, it would arrange to unblock the drain and asked the resident to refrain from blocking the drain again as it was causing damage to the property next door. The landlord offered to inspect the property from the inside in order to identify the cause of damp that the resident was reporting.
England went into lockdown on 23 March 2020.
The resident wrote to the landlord on 25 March 2020 complaining of flooding into the property and enclosed her daughter’s occupational therapist’s report which referred to black mould in every room. The resident objected to the landlord removing the turf she had placed on the drain and stated she was redirecting the rainfall. The resident wanted the landlord to move her to a property in the area where she used to live prior to moving into her current property. The landlord treated this letter as a formal complaint by the resident about flooding, damp, and mould.
The landlord records show it tried to contact the resident to arrange an inspection; however, it is reasonable to conclude from the landlord’s records that the resident had made no contact with the landlord to schedule an inspection.
The landlord wrote to the resident on 22 April 2020 with its stage one response to the complaint dated 25 March 2020 as follows:-
1. the blocking of the drain by the resident caused the next-door property to flood and therefore it had removed the turf.
2. the damp course had not been breached.
3. a previous report of flooding had been resolved in April 2018.
4. the resident had not reported mould prior to her complaint of 25 March 2020.
5. the landlord gave advice about managing condensation and mould.
6. the landlord explained how the resident could apply for a move.
7. the landlord repeated its offers to inspect inside the property, which it had been unable to do as the resident had not arranged access to the property.
The resident reported further serious flooding on the 30 April 2020 and the landlord attended the property on the same day. According to the resident she was advised not to use her electrics. Evidence of the outcome has not been provided.
Lockdown ended 13 May 2020.
The resident contacted the landlord on 10 June 2020 regarding ‘flooding in the bedrooms and wall collapsing’ and ‘wet electrics we were advised not to use’ further to the report of 30 April 2020.
The landlord inspected the property on 15 June 2020. The inspection records have not been provided to the housing ombudsman. The resident states that damp meters found water present in both bedrooms and the living room floors, however according to the landlord, it found ‘no issues being present internally with mould, the concrete floor slab was damp along the front external wall but no damp was present in the wall itself.’
The landlord undertook a further inspection on the 2 July 2020 and commissioned a further independent damp survey by an external contractor which took place mid-July.
The damp survey of mid-July recommended that the landlord should:
1. install an extractor in the kitchen.
2. extend the overrun time for the bathroom fan.
3. effect soakaway repairs.

The survey also found that the resident:

was not using the bathroom fan at all.
was not using the heating.
was turning the boiler off most of the time.

On 10 August 2020, the landlord wrote to the resident’s co-tenant with its final response to the resident’s complaint. The letter noted that the landlord had tried to discuss the matter with the resident, that an independent damp survey had been carried out and all remedial works had been raised and booked in. The landlord’s view was there was nothing else it could do, pending seeing whether the remedial steps, together with the landlord’s advice provided on the resident’s condensation management, resolved the issue. The landlord was confident the it would resolve the matter, and, in the circumstances, closed the complaint.
Following the completion of the complaints process, the landlord dealt with a further complaint through Citizens Advice received on 20 August 2020 in relation to ‘inadequate drainage causing damage to property, and poor communication by the landlord in dealing with the complaint’. The landlord corresponded and spoke to the Citizens Advice on several occasions throughout September but did not hear further. Instead, the resident had taken her complaint to the local authority, which would have enforcement powers as set out above. The landlord kept the local authority updated throughout October and November 2020.
The landlord commissioned a CCTV drain survey on a date in August 2020. There is no evidence of the exact date however landlord’s records show that by 4 September 2020, the survey had revealed that some of the blocked drains were the responsibility of the relevant utility company and the further three drains were the responsibility of Highways Maintenance.
At the resident’s request made 4 September 2020, the landlord agreed to speak to the relevant utility company and Highways Maintenance to progress the drainage issues. The utility company inspected the drains on 12 September 2020 and stated that it would clear the blockage.
The landlord reported in its email 16 October 2020 to the local authority that the flooding was caused by the road gullies being heavily blocked with silt, which in turn would cause the gullies to overflow with heavy rain, and cause flooding and heavy silt deposits to be left at the front of the properties. This had, on several occasions, caused the damp proof course to become breached and caused damp inside of the property. The landlord arranged for a further survey to be carried out by a contractor to see whether further works were required by the landlord.
The second survey recommended that a soakaway should be dug into the front gardens and the properties disconnected from the main storm drain so as to prevent the water from backing up and flooding the drain. Works were to be put in hand shortly after.
On 13 November 2020, the landlord informed the resident that it would be carrying out further works, complete with an internal one-way storm valve.
In terms of the internal works, the resident had declined to reschedule any more works internally until the drainage was resolved. On or before 2 November 2020, the resident informed the local authority that she did not need an extractor fan in the kitchen for drain ingress issues to the kitchen corner, as she felt that the positioning of a large fridge freezer at the damp wall was sufficient. She also felt that the ‘inadequate and outdated double-glazing windows’ also did ‘a perfectly good job of ventilating the kitchen themselves’.

Assessment and findings

Reports of flooding and water ingress

Damp can be caused by external factors such as a water ingress, or by internal factors such as condensation. Condensation can be caused and prevented by the way a resident uses the property, such as lack of heating and ventilation. It is important to determine the cause of damp in order to determine the remedy and to determine whether any damp or mould issues are the responsibility of the landlord or the resident, or both.
The first report of flooding at the property since 2018 was made on the 7 February 2020. The landlord’s initial response to the report of flooding focussed on the fact the resident covered the drain with turf, which was causing damage to another property and potentially the one she occupied. The landlord was entitled to conclude that the turf was blocking the drain. It removed the turf from the drain which was reasonable as, in the landlord’s view, it was causing damage to its property.
Despite the resident having stipulated that she would not give access to the landlord, it could have inspected the drain sooner than it did – three weeks after the report on 28 February 2020. The resident’s concern was understandable, in particular given that she had suffered water ingress in her previous property. The landlord identified that the blocking of the drain by the resident had caused flooding. Given that, and that there was no evidence the damp course had been breached at that stage, it is reasonable to conclude that an earlier inspection would not have affected the overall outcome.
While the drains overflowing was a concern, there was no evidence that this had caused damage to the property. As the landlord was unable to access the interior of the property, it was unable to assess the extent of any damage to the property, including whether the property was affected by water ingress.
It would have been reasonable for the landlord to have updated the resident following the end of lockdown in order to manage her expectations and not leave her to chase the landlord, given the distress the issue was causing the resident and that her disabled daughter also occupied the property.
The timing of the landlord inspection of the 15 June 2020 was reasonable, given a) that the resident had not contacted the landlord to arrange an inspection of the property, b) given that the landlord attempted to contact the resident and c) given lockdown, which lasted from 23 March 2020 to 13 May 2020, during which there was a restriction on repairs being carried out.
While the landlord identified neither mould nor water ingress at the June inspection, it was a reasonable precaution by the landlord to undertake a further inspection, followed by an independent damp survey which took place in mid-July. In compliance with its obligations, the landlord undertook to carry out the remedial works suggested by that independent survey.
The works identified included installing an extractor in the kitchen and changing the fan setting in the bathroom. Neither of these items indicate disrepair as there had been no extractor previously and there is no indication the fan was faulty. It was reasonable for the landlord to effect those works in order to avoid any breach of its obligation that the property be fit for human habitation and given the vulnerable nature of the household. For the absence of doubt, there is no evidence that the property was not fit for human habitation.
The resident’s concerns about flooding and causing damp to the property were justified, given the findings of the two drain surveys. The resident expressed upset and concern for her disabled daughter and the landlord, given its repair policy, should have regard for the effect of any defect on the household. However, there is no evidence of the extent of damage, or that there was a hazard at the property within the meaning of the Housing Act 2004, or was not fit for human habitation. There was no evidence of disrepair. Moreover, it transpired the drain blockages were not the responsibility of the landlord but of external agencies.
Once the landlord had access to the property and was presented with the evidence, the landlord acted in accordance with its obligations. The landlord carried out a further inspection, and commissioned a damp survey. The landlord also put in hand the recommendation regarding installing soakaway drains.
The damp survey also identified actions the resident was taking which contributed to condensation within the property, such as not heating the property adequately or using the bathroom fan. There is no evidence whether the resident has taken steps as she was advised to take in order to mitigate any damp and mould caused by condensation but it would be reasonable and appropriate for her to do so given her obligation to maintain the property in a ‘tenant-like manner’ .
The landlord further fulfilled its obligations by giving advice to the resident on handling condensation and in offering to undertake remedial works, but the resident declined the works the landlord proposed. The resident declined further remedial works to the property including installing an extractor and changing the bathroom fan setting . The resident eventually took the view that its own actions such as placing the fridge freezer against the external wall would suffice to address damp caused by water ingress. The resident refusing the landlord’s assistance will not have assisted in keeping the property free from damp.
While the events after the completion of the landlord’s internal complaints process is outside the ombudsman jurisdiction, and therefore outside the remit of this investigation, the events are relevant to the substantive issues of the complaint.
After the complaints process had been completed, the landlord continued pro-actively with its investigation into the drains and commissioned a drain survey, which identified that the drains were not the landlord’s responsibility, but lay with two separate agencies. Although it was not the landlord’s responsibility, the landlord contacted the agencies on the resident’s behalf, so that by 12 September 2020 the utility company had attended the property and arranged further works.
The landlord arranged further drain surveys including further CCTV. It also ensured that it investigated what further works it should undertake. The local authority confirmed on 9th November 2020 that it was satisfied with the actions the landlord was taking. There were further technical complications so that by mid-November the position was that further works had been planned to provide a permanent solution. The landlord’s actions, particularly from June onwards, demonstrate reasonable and appropriate steps to identify a permanent solution to any water ingress issues at the property.

Complaint handling

The complaint and compensation policies required the landlord to put things right. It promises not to close a complaint until ‘we’ve has tried everything that we believe we could reasonably have done to resolve it. and look at the cause of the issue so we can stop it happening again’.
The landlord treated the resident’s letter of the 25 March 2020 as a complaint. The first response was made on the 22 April 2020. While there were no timescales for responses in the complaints policy, this was a reasonable response time, given that the landlord was unable to contact the resident over the telephone, and the lack of access to the property.
The landlord’s response of 22 April 2020 was reasonable in content, given that there was no evidence that the damp course had been breached and the landlord had been unable to arrange access to the property. The response addressed the issues the resident had raised, stating there was no evidence of an issue with the drain, that the landlord had not received a report of mould prior to 25 March 2020 and offering to inspect the property.
Given that the complaint was escalated on 5 August 2020, the final response time of 11 August 2020 was appropriate, though the final response should have been addressed to both residents.
In terms of content, the final response considered that the matter was being addressed by the damp survey and remedial works taking place. While the response could have been more detailed, and did not address the drains specifically, the landlord was in the process of investigating the matter.
Following the completion of the landlord’s internal complaints process, the landlord exercised its discretion and continued to deal with the complaint via the Citizens Advice.
The evidence indicates that the landlord kept the resident informed of its proposed actions. The landlord responded promptly to the complaints made through Citizen’s Advice and the monitoring by the local authority. It also complied with its complaint policy to ascertain the cause of the damp and to deal with the flooding that had occurred from the drains by commissioning a drain survey.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme (the Scheme), there was no maladministration in relation to the reports of flooding and water ingress.
In accordance with paragraph 54 of the Scheme, there was no maladministration in relation to the landlord’s complaint handling.

Reasons

While the landlord‘s initial response could have been more prompt, the landlord was prevented from investigating the matter sooner than it did due to lack of access and lockdown. It then followed the matter up in a reasonable manner once it received evidence there was an issue with the drains, and it was able to do so.
While the landlord limited its final response to the issues of the damp and mould, it addressed the substantive issues, and the complaints made on the resident’s behalf.