Broxtowe Borough Council (202017004)

REPORT

COMPLAINT 202017004

Broxtowe Borough Council

21 January 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. The complaint is about the landlord’s response to the resident’s reports of flooding to his property.

Background and summary of events

2. The resident holds a secure tenancy and moved in to his two bedroom bungalow via a mutual exchange in December 2015.
3. The resident first raised the issue of flooding to his property on 7 January 2016. This has been a persistent issue affecting the resident since then, occurring mainly in his garden after heavy rain.
4. In 2016, the landlord carried out damp tests in February and October but said that no high readings were found. In August 2016, the landlord created an additional drain for the resident. In September, the side path to the property was re–concreted. In October, the landlord repainted the lower levels of the property with bitumen to help with damp proofing. The landlord also issued sandbags to protect the resident’s home from water damage and damp.
5. In February 2017, the property was inspected again and a survey was carried out. The survey found that there were ‘signs of a damp issue in the bottom corners of the bungalow along the back wall.’ It was noted in the survey that the property ‘lacks flood defence and backs on to a field that gets very wet and does not hold water’. The surveyor indicated that this water was not significant enough to cause long term soaking but recommended that a pea gravel trench or French drain be installed along the back wall of the property to alleviate the problem. An aco-drain was then installed on 21 February 2017.
6. On 11 July 2017, the resident was visited by the landlord to discuss damp in the rear bedroom. In October 2017, the landlord carried out various repairs to the property including over-boarding of the rear bedroom side elevation wall and clearance of the drains at the side of the property. The landlord issued decoration vouchers of £50 to the resident.
7. On 16 March 2018, the landlord noted that there was a dyke along the side of the boundary with the neighbouring field. The dyke was said to be ‘completely blocked and full of brambles.’ The landlord believed that clearance of this dyke would assist greatly with the correct dispersal of water via a culvert and asked its legal team to pursue the person or entity responsible for maintaining the dyke.  
8. The landlord installed a French drain at the property in April 2020. This had been recommended in the survey of 2017. Although it is clear the landlord considered installing this French drain in 2017, there is no evidence to explain why the drain was not installed earlier.
9. On 26 January 2021, the resident made a formal complaint by phone saying that his property was being flooded and that his property smelled of damp and dog faeces from the neighbour’s garden. The resident said there had not been a satisfactory resolution to these problems despite him raising the issue several times.
10. The landlord responded at stage one on 2 February 2021 and said that it would talk to the neighbour about cleaning up after their dog. The landlord said it was aware there was an issue with flooding to the property but said there was nothing further it could do until its legal team had contacted the farmer who owned the field at the rear of the property to clear the dyke. The landlord offered the resident further sandbags to protect his property from water ingress.
11. The resident contacted the landlord again on 5 February 2021 and his complaint was escalated to stage two The landlord responded to the resident’s complaint at stage two on 18 March 2021. In this response, the landlord said it had taken the following actions to mitigate the flooding at the resident’s property:

• Jan 2016 – issued sandbags
• Aug 2016 – installed new drainage
• Feb 2017 – installed aco drain
• June 2017 – lifted drainage system and realigned
• Nov 2017 – installed additional aco drain and issued sandbags
• April 2020 – installed French drain
• Asked its legal team to contact the landowner to remedy the dyke blockage

12. The resident has contacted this service as he says the flooding to his property has not stopped and the actions taken to date have not been effective. The resident has said the drains are not located correctly and he would like the landlord to consider installing a dam or wall to stop the flooding.

Assessment and findings

13. The resident first raised the issue of flooding in his property in January 2016 shortly after he moved in. This investigation covers the period from then until completion of the landlord’s internal complaints process on 18 March 2021. In this case, the measures taken by the landlord as described in its stage two response are not in dispute and so there is no issue with the reliability of evidence despite the passage of time since 2016. The question is rather whether the measures taken by the landlord have been sufficient and in accordance with its obligations.
14. Similarly, the landlord does not claim to have stopped or prevented the flooding to the resident’s property. The landlord says that the measures taken are intended to ‘mitigate’ rather than stop the flooding and has acknowledged that the flooding is likely caused by heavy rain to the nearby field and the blocked dyke at the boundary of the property.
15. The landlord does not have responsibility for clearance of this dyke and says its legal team are trying to contact the owner of the field to take action. No evidence of attempted contact has been seen by this service and no evidence of other legal action to enforce clearance of the dyke has been seen. A recommendation about this issue has been made below.
16. In accordance with the terms of the tenancy agreement and the Landlord and Tenant Act 1985, the landlord is responsible for repairing and maintaining the structure and exterior of the property. This would include for example adequate drainage at the property and adequate ventilation in the property to avoid damp issues. Since the resident raised the issue of flooding, it is not disputed that the landlord has undertaken several repairs. It has also made improvements to the property which it is not legally obliged to do. The landlord has therefore been resolution focussed, using its discretion to try and assist the resident, although the resident says this has not been successful. These measures such as drain clearance, installation of new drains, damp checks and inspections have been outlined in the landlord’s stage two complaints response and are reasonable and proportionate steps that were in accordance with its repair obligations.
17. In addition to the above responsibilities, the landlord is expected to meet the home standard set by the Regulator of Social Housing. The Home Standard includes ensuring that homes meet the Decent Homes Standard. There is also the Housing Health and Safety Rating System (HHSRS) which is concerned with avoiding or minimizing potential hazards. The landlord has a responsibility to keep a property free from category one hazards, that include damp and mould and ensure that the property is habitable. There is no evidence to suggest that the property occupied by the resident is or has been uninhabitable at any time over the period from January 2016 until March 2021. There is no evidence of any category one hazards or other issue that would oblige the landlord to move the tenant from his property urgently or carry out more extensive works.  
18. Since the cause of the flooding is thought to be the blocked dyke and the dyke is not on the landlord’s land it is not the responsibility of the landlord to make a repair to it. There has therefore been no breach of duty in terms of the landlord’s repair obligations.
19. Although there is no formal obligation to stop the flooding completely, it is reasonable to expect the landlord to take steps to resolve matters where possible. This would be in accordance with dispute resolution principles of ‘putting things right’ for complainant. 
20. This could be achieved by contacting the owner of the land or by establishing what entity is responsible for maintenance of the dyke. As stated above, although the landlord has said this has been done by their legal team, little evidence has been seen in this regard and therefore a recommendation about this issue has been made below.
21. In these circumstances, the landlord can consider any other practical ways it can reduce the impact on the resident, for example with additional flood defense like hedgerows, or by contacting the resident’s neighbour about their dog which it did as part of the initial response to the resident’s complaint.
22. The actions taken by the landlord to date have been resolution focussed and have been sufficient to meet its repairing and other obligations. Since it has no formal responsibility for the dyke, the landlord cannot be held accountable for flooding at the property when there is heavy rain. However, it should continue to work with the resident and neighbouring landowner to mitigate or stop the impact of flooding.

Determination (decision)

23. In accordance with paragraph 54 of the Housing Ombudsman scheme there has been no maladministration in the landlord’s handling of the resident’s reports of flooding.

Reasons

24. The landlord has taken reasonable steps to assist the resident with damp and water ingress problems at his property. This includes issuing sandbags, clearing existing drains and installing new drains on the advice of a surveyor.

Orders and recommendations

25. It is recommended that the landlord write to the resident to update him on any steps being taken by their legal team to clear the dyke in the field adjoining his garden. The landlord should also advise the resident of any additional measures it is willing to take to assist in flood defence at his address including the possibility of a dam or additional wall.