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Cobalt Housing Limited (202006302)

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REPORT

COMPLAINT 202006302

Cobalt Housing Limited

31 August 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

  1. The complaint is about the landlord’s response to the resident’s reports of:
    1. issues with the drains at her property;
    2. issues with the air quality at the property in or around 2013/2014.

Jurisdiction

  1. 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.
  2. Paragraphs 39(d) and (h) of the Housing Ombudsman Scheme notes as follows:

39. The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion:

d) were brought to the Ombudsman’s attention normally more than 12 months after they exhausted the member’s complaints procedure;

h) concern matters that are, or have been, the subject of legal proceedings and where a complainant has or had the opportunity to raise the subject matter of the complaint as part of those proceedings.

  1. It is not disputed that in or around December 2012, the resident reported smells in her property which she considered to be related to the gas fixtures/boiler. The landlord carried out an inspection on 14 December 2012 but did not uncover any faults with the gas fixtures. It also installed a carbon monoxide detector, which did not record any issues. Following the resident’s further concerns, it carried out a further independent inspection of the gas fixtures on 8 April 2013, which did not uncover any issues. It provided a stage one response on 12 May 2013 which outlined the steps it had taken and did not uphold the resident’s complaint.
  2. Throughout 2014, the resident continued to report similar concerns and on or around 19 February 2014, the landlord arranged for its contractor to carry out an air quality test which did not uncover any concerns. The resident continued to express similar concerns and the landlord subsequently reopened its complaint investigation. It provided a stage two response on 28 April 2014 which outlined the further steps it had taken. It also noted it had attempted to arrange mediation with the resident to address her ongoing concerns and that it had signposted her to relevant support agencies in response to the resident’s reports she was feeling unwell as a result of the smells. Additionally, on 7 July 2014, the landlord arranged for a ‘community care assessment’ to identify any additional support for the resident.
  3. On or around 12 August 2014, the resident made a homelessness application as she did not consider that she could remain at the property. This was denied by the local authority on the basis that it considered her property was fit for habitation.
  4. It is evident that in or around late 2014, the resident instigated a legal disrepair claim against the landlord. In its judgement, the Court considered the landlord’s actions as well as the reports of its gas contractors. The Court found there was no basis for the resident’s claims that the landlord had failed in its repair obligations. The Court further rejected the resident’s claim that the landlord had treated her poorly.
  5. Additionally, in or around June 2017, the resident reported her concerns to the Social Housing Regulator, who subsequently carried out an investigation into the landlord’s handling of the resident’s reports. On 29 June 2017, the Regulator provided its investigation report which found that neither the ‘Home Standards’, the ‘Tenant Involvement Standards’, nor the ‘Consumer Standards’ had been breached and that it would not be taking any regulatory action.
  6. As part of the resident’s formal complaint in October 2020 regarding the landlord’s response to the resident’s reports about the drains at her property (discussed below), the resident again raised her concerns about its response to her reports about the air quality at the property in or around 2013/2014. The landlord subsequently advised it had previously provided formal responses to this element of the complaint and that it would not be revisiting it.
  7. After carefully considering all the evidence, given that the landlord’s stage two response was provided in April 2014, and that it is not evident that the resident sought to refer her complaint to this service within the following 12 months, in accordance with paragraph 39(d) of the Housing Ombudsman Scheme, the complaint about the landlord’s response to the resident’s reports of issues with the air quality at the property in or around 2013/2014 is outside of the Ombudsman’s jurisdiction. Additionally, given that the landlords actions were considered by the Court as part of the disrepair claim in 2014, the complaint is also outside of the Ombudsman’s jurisdiction in accordance with paragraph 39(h) of the Housing Ombudsman Scheme.

Background and summary of events

Background

  1. The resident has been an assured tenant at the property of the landlord since 17 May 2010. The landlord is a registered provider of social housing.
  2. The landlord operates a two stage complaints policy. The policy notes it will not investigate complaints about issues that occurred over six months previously.
  3. The landlord operates a repairs policy. The policy notes that it considers repairs that may potentially affect the health of the tenant to be ‘emergency repairs’ which it will aim to complete within 24 hours. It notes that ‘routine repairs’ will usually be completed within 10 working days, but that these timescales may vary where specialist contractors are required.
  4. The resident’s tenancy agreement notes that the landlord is responsible for the “drainage within the curtilage of the property.”

Summary of events

  1. The landlord has provided this service with its repair records, which note that its drains contractor carried out an inspection of the drains at the property on 8 June 2020. The records do not note further inspections occurring in June 2020 and this service has not been provided with copies of any communications immediately following this inspection, however, the events that followed are noted in the resident’s formal complaint dated 12 October 2020, the dates of which are not disputed. The contractor attended to a blockage in her neighbour’s drain, before subsequently discovering an uncapped kitchen gully at the rear of the resident’s property, which she reported to the landlord. The landlord subsequently arranged for its contractor to place a bung on the drain on 9 June 2020. The resident reported on 10 June 2020 that she was experiencing “adverse effects” from the drain smell, and the landlord subsequently arranged for a further inspection on 15 June 2020. The contractor identified that the kitchen gully should be replaced to allow for a CCTV inspection of the drains. The gully was subsequently replaced on 23 June 2020 and a CCTV inspection was carried out.
  2. The resident reported on 8 August 2020 that she was continuing to be adversely affected by the drain smell and that she had taken to wearing masks inside her home. The landlord’s emergency team attended the same day and arranged for a further inspection on 12 August 2020. The resident has advised that on 9 August 2020 and again on 13 August 2020, she was taken to A&E by ambulance due to “suffering from serious adverse effects following exposure to gases from the gully.” In her formal complaint on 12 October 2020, the resident advised that the landlord’s contractor attended again on 14 August 2020 and carried out inspections of her neighbour’s drains.
  3. On 25 August 2020, the landlord’s contractor advised the landlord that they had carried out an inspection and ‘smoke test’ of the drains at the resident’s property and that there were no blockages evident. They also advised that no smell could be detected, and that this was corroborated by “multiple engineers.” Following a request from the resident on 28 August 2020 and again on 1 September 2020, the landlord provided her with a copy of the contractor’s report on 2 September 2020.
  4. It is evident that the resident raised concerns about the inspection and based on the landlord’s records, it discussed these with her on the telephone on 2 October 2020. As noted above, the resident subsequently made a formal complaint on 12 October 2020. She advised that during the above-mentioned inspections, she observed that the drains had been blocked preventing a full inspection using CCTV. She raised concerns that the contractor was not competent given that they had initially placed a bung on her kitchen gully, prior to carrying out a full inspection and that they had failed to provide her with the photographs and video footage of their inspection. She noted that the landlord had advised her on 24 August 2020 that it considered the works to the drains had been completed, but that she disagreed with this position and that she had been “left exposed to harmful sewer gases.” She also advised she had made a request for temporary accommodation at this time, but that this had not been addressed.
  5. The resident further advised that she had arranged for an independent assessment of the drains, which took place on 10 September 2020, however, it is not evident that the results of this had been provided to the landlord at this time, or until after its stage one response. This service has been provided with a copy of this report which identified that the kitchen gully drain was damaged and recommended it be repaired. As part of her complaint, the resident also reiterated her concerns about the landlord’s response to her reports about the air quality in her property in 2013/2014.
  6. The landlord acknowledged the complaint on 14 October 2020 and provided its stage one response on 28 October 2020. Regarding her complaint about the air quality in her property in 2013/2014, it advised it had addressed this under its internal complaints policy in 2014 and as such would not be revisiting it. Regarding the video from the inspection, it advised it did not usually obtain these, but had sought out the photographs taken by its contractor, which it enclosed with the response. Regarding the contractor’s competency, it advised they had over 30 years’ experience and that it had no reason to doubt their competence. It also noted that the resident was concerned the contractor’s report left out the full events of the inspection but advised that it deemed the report to be accurate and that it would follow the report’s findings that no further works were required. It also advised it had raised the resident’s concerns about sewer smells with the contractor, but that they had reported that no smells were present. The landlord concluded that all repair works had been carried out in accordance with its policies and obligations.
  7. On 5 November 2020, the resident noted she wished to escalate her complaint to stage two of the landlord’s internal complaints procedure. On 20 November 2020 she advised that she was concerned that the contractor’s report only gave opinions that no works were required but did not point to any evidence that this was the case.
  8. The landlord provided its stage two response on 18 December 2020. It reiterated that it considered it had carried out its repair obligations in line with its policies and that “at the time of these investigations, the drainage system posed no risks to the occupants of your home.” It noted that the resident continued to have concerns and so as a gesture of goodwill, offered to carry out a further drainage inspection. It also gave the resident the option of three different contractors to carry out the inspection. It advised this could be carried out in January 2021 and that it would arrange for her to be provided with a copy of the report and CCTV footage.
  9. It is evident that the resident subsequently reported her concerns to her local councillor, including her desire to be moved into temporary accommodation while further inspections took place. The councillor forwarded this request to the landlord on 4 January 2021, who replied on the same day and advised it would look into a solution.
  10. On 11 January 2021, the landlord advised it was awaiting the resident to choose a contractor and requested she do so by 13 January 2021. The resident replied on 13 January 2021 and advised she did wish to choose as she had already had the drains inspected herself and was aware of the works required. She therefore rejected the proposal as an “offer of goodwill” as she considered it should already have carried out the investigation. She also noted she was yet to receive a response regarding her request for temporary accommodation.
  11. On 22 January 2021, the councillor again contacted the landlord and queried if it would accept the resident’s independent report instead of carrying out a further inspection. On 5 February 2021, the landlord advised it would accept the resident’s report, and queried if she would like to use her contractors to carry out the recommended repair works. It is not evident that the landlord received a confirmation to this query, however, it is evident that it proceeded to liaise with the resident’s contractor to arrange the works. The resident has advised this service that she was not consulted prior to the landlord arranging these works.
  12. On 10 February 2021, the landlord contacted the resident and advised it did not “feel this situation justifies a move into temporary accommodation.” It noted that during her complaint about the air quality in 2013/2014, it had offered her a management move to a permanent new location, and that this option was still available if she wished.
  13. It is evident that the repair works to the drain were carried out on or around 9 March 2021, however, the resident continued to report on 16 March 2021 that she was being affected by “sewer gases.” On 19 March 2021, the resident also requested the landlord install ‘gas detectors’ to monitor the levels of gases entering the property. The landlord replied on 22 March 2021 and advised the resident to contact her doctor if she was feeling unwell. It also requested she provide further information on her request regarding the gas monitor. It is not evident that the resident elaborated on her request.
  14. On 24 March 2021, the resident reported that the contractors had noted an unsealed ‘soil stack’ in her loft. The landlord replied on 25 March 2021 that it would inspect these reports. It also reiterated its offer to permanently relocate the resident, and that it was happy to arrange a further conversation to discuss her concerns. The landlord carried out a further inspection on 29 March 2021 and provided a “formal update” on 30 March 2021. It noted the resident’s requested works had been carried out as per her request and that its inspection of the soil stack indicated no works were required. It also provided photographs of the soil stack for her records. It further reiterated its advice that the resident should seek medical assistance should she ever feel unwell.
  15. The resident has advised this service that she considers that there are further uncovered drains at the property, specifically in the driveway, and that she continues to feel affected by the sewer gases. It is not evident if this has been reported to the landlord.
  16. The resident has also advised this service that she considers that her belongings have been damaged by the sewer gasses, and that she wants compensation for this damage. Similarly, she believes she should be compensated for the report she commissioned, given that it identified works required which were actioned by the landlord. It is not evident, however, if these requests have been communicated to the landlord.

 

Assessment and findings

  1. The Ombudsman understands that the resident’s experience has caused her discomfort and distress. The purpose of the Ombudsman’s investigation is not to determine if there was an issue with drain smell, but instead to assess whether the landlord’s response to the resident’s reports was in line with its policies and reasonable in the circumstances.
  2. The landlord’s complaints policy notes it will not investigate issues which occurred more than six months prior to a complaint. The Ombudsman also considers it reasonable for a landlord not to reinvestigate issues that it has already investigated under its internal complaints policy. It is evident that the landlord provided stage one and two responses following the resident’s complaint in 2013/2014 regarding the air quality at her property, and that it made its position clear at that time. While the resident now considers the issue she experienced in 2013/2014 to potentially be connected to the drains, this possibility was not raised at that time, and no investigation reports at that time point to the drains as a cause of any smell. Given that it fully investigated this element of the complaint in 2013/2014 and that a significant amount of time had now passed, it was reasonable for the landlord to refrain from reinvestigating this issue as part of the current complaint.
  3. Keeping an accurate audit trail is an important part of a landlord’s service delivery. The landlord should have systems in place to maintain accurate records of any repair works and telephone notes so that it can satisfy itself and the resident (and ultimately the Ombudsman if necessary) that it took all reasonable steps when investigating a complaint. While the landlord provided this service with its repair history and case notes, it is evident that a number of repair works and investigations that took place in June 2020 were not included. This has meant the Ombudsman has had to rely on references to these works in other correspondence.
  4. The tenancy agreement notes that the landlord is responsible for keeping the drains at the property in good repair. It is evident that following the resident’s reports of an uncapped kitchen gully, the landlord appropriately arranged for it to be capped the following day. Following this, given that the resident reported that she was being affected by the drain smell, it was also appropriate that it arranged for an inspection of the drains, during which it identified rectification works, which it carried out within the timeframes of its repairs policy. Additionally, following the resident’s further reports that she was being adversely affected, the landlord appropriately urgently attended as per its repairs policy where a health concern is raised, and following an assessment of the issue, arranged for an investigation the next working day.
  5. It is evident that the landlord’s further inspections concluded that no further works were required. While the resident expressed her concern that the investigation was not satisfactory, the landlord’s response that it considered the contractor to be competent based on its experience in the industry was reasonable, and its decision to rely on the report was also reasonable. The landlord also appropriately requested its contractor inspect any possible smells and its reliance on the contractor’s reports that multiple operatives concluded there was no smell detectable was also reasonable in the circumstances. While not a requirement for the landlord to provide copies of its reports, it was appropriate that the landlord provided the resident with the reports upon request, and also sought out the photographs taken by the contractor to provide to her.
  6. While the resident arranged for her own inspection on 10 September 2020, given that this had not been discussed with the landlord and it had not been in a position to assess whether the inspection was carried out correctly, it was reasonable for it to rely on its own inspection at the time of its stage one response and conclude that no further works were required.
  7. Following the resident’s ongoing concerns, the landlord’s offer to carry out a further inspection in its stage two response was beyond its requirements under its repair policy, given that it was satisfied that the previous inspection was satisfactory. Given the resident’s concerns over the competency of the contractors, it was also appropriate and beyond its requirements that it initially gave her an option of three contractors to carry out the works and that it subsequently decided to use the contractors previously used by the resident in place of its own.
  8. Throughout the period of the complaint, it is evident that the resident requested the landlord provide its position on temporary accommodation during the inspections. This request was also repeated by the resident’s local councillor on her behalf. While the landlord had made its position clear as to such requests during the resident’s complaints in 2013/2014, it would have been appropriate to have offered a further response sooner during this complaint so the resident would have been aware of her options. It is also evident that during the previous complaint, the landlord had left the option of a management move open at the request of the resident, which it reiterated in its communication on 10 February 2021. Given that it is not required to offer temporary accommodation under its repairs policy, and that its offer of a management move was beyond its required obligations, the Ombudsman does not consider the landlord’s delayed response to constitute a service failure in this instance.
  9. Following its stage two response, it is evident that the landlord has continued to investigate the concerns of the resident and has appropriately provided her with photographic evidence of its inspections to alleviate her concerns e.g. the soil stack. The Ombudsman also notes that throughout both complaints, the landlord has shown genuine concern for the resident’s welfare and has sought to signpost her to relevant external support groups and to her doctor throughout its communication.
  10. While it is evident that the resident considers there to be further repair issues present (a recommendation for which is made below), the Ombudsman is satisfied that the landlord has acted in accordance with is policies and has appropriately relied upon its contractor’s reports for the investigations and repairs completed throughout the period of the complaint.

Determination (decision)

  1. In accordance with paragraphs 39(d) and (h) of the Housing Ombudsman Scheme the complaint regarding the landlord’s response to the resident’s reports about issues with the air quality at the property in or around 2013/2014 is outside of the Ombudsman’s jurisdiction, as discussed above.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to the resident’s reports concerning issues with the drains at her property.

Reasons

  1. The landlord appropriately investigated the resident’s reports and carried out the works recommended by its contractors, in line with its responsibilities and its repairs policy. While the resident expressed her concerns over the competency of its contractors, the landlord appropriately justified why it considered them to be competent and its reliance on their report was reasonable.
  2. Following the resident’s further concerns, it made an offer to carry out further inspections, beyond its requirements under its policy, and also appropriately agreed to the works suggested by the resident, for which it used her preferred contractor.
  3. While it delayed in its response to the resident’s request for temporary accommodation, it is not evident that the landlord was required to provide such accommodation in these circumstances, and its offer of a management move was beyond what was required.

Recommendations

  1. The landlord to take steps to ensure its repair records are completed accurately.
  2. The landlord to write to the resident within four weeks of the date of this determination and include the following (if it has not already done so):
    1. request details of any outstanding repair issues relating to the drains at the property;
    2. give its position on reimbursement or compensation relating to the report commissioned by the resident in September 2020 and relied upon by the landlord in relation to the works in March 2021;
    3. provide the resident with any outstanding copies of the reports of investigations carried out to date;
    4. give the resident guidance regarding an insurance claim relating to the belongings she considers to have been damaged.