Newham Council (202106974)

REPORT

COMPLAINT 202106974

Newham Council

29 April 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 was about:

Background and summary of events

The resident occupied a three-bedroom, mid-terraced house under a secure tenancy with the landlord. The tenancy began on 28 January 2008. The resident was partially sighted and had mobility issues. During the tenancy, the landlord had installed a wet–room in the property. In March 2018, the landlord fitted a stair rail, grab rails and rails in the wet–room. It also fitted a handrail in the wet-room during the course of the period covered by this investigation.

The legal and policy framework

In accordance with the terms of the tenancy agreement and section 11 of the Landlord and Tenant Act 1985, the landlord had an obligation to keep the installations for sanitation (including sanitary conveniences) in repair and proper working order. It would also effect repairs within a reasonable period.
While the landlord did not accept responsibility for redecoration, if redecoration was required due to the fault of the landlord, then the landlord may be responsible as a matter of law.
The landlord referred the Ombudsman to its website for its repair policy which was a general summary of its obligations.

Chronology

On 9 November 2018, according to the landlord’s repair records, there was an emergency call out to clear a blocked drain at the front entrance of property. It is not clear from the evidence who made the call. A local water company provided a call out card dated 11 November 2018 stating it had inspected the drains and they were clear.
On 11 November 2018, the resident reported a blockage to her toilet. According to the landlord’s repair records, the blockage was cleared the next day. According to the landlord’s contractor, a specialist drainage company, it cleared the blocked stack by electro–mechanical cleaning and manual rodding. According to the landlord’s repair records, the contractor advised that a leak was coming from the toilet and that the contractor recommended a CCTV survey of the shower and toilet waste in order to check for possible damage to the underground soil pipe and wet-room shower. The landlord’s contractor requested that the toilet be removed in order to investigate with CCTV.
According to an internal email of 27 November 2018, the resident contacted the landlord in distress on that day. According to the landlord, she had not “once” had her portable toilet changed and had relied on family to collect and empty it at their address. It said it would arrange to collect a replacement portable toilet and remove the other and consider clearing up the area where her toilet has overspilled.
On 27 November 2018, according to the landlord’s records, a contractor attended to remove the resident’s toilet and replaced it with a temporary chemical toilet.
On the same day, 27 November 2018, the drainage contractor attended and carried out a CCTV survey on the drainage system. According to the survey, an obstruction was identified within the pipework. It recommended that two patch liners were required to rectify a medium joint displacement that had caused multiple cracks within the drain line.
The landlord carried out a mould wash in the bathroom on 21 January 2019 and on 25 January 2019, the landlord plastered the living–room wall.
According to the contractor’s engineer’s report, the drainage contractor re-attended on 6 February 2019 and carried out two patch installs. It checked with a camera line and concluded that all was clear and the defect repaired. According to the landlord’s repair records, the toilet was reinstated on the same day.
On 24 April 2019, the resident reported that the wet-room shower drain was blocked again which resulted in flooding. The landlord has not located records of a repair. On the 27 April 2019, the landlord put up wallpaper in the living-room and painted the bathroom.
There is a gap in the evidence where, according to the landlord, there are no records including no evidence of any repairs completed after the report on 24 April 2019.
The resident wrote to the landlord on 18 November 2019 as follows:
1. She had sent to the landlord’s repair centre photographs of works that had not been completed and of damage caused by the landlord’s workman. This had proved incredibly stressful. She felt the landlord had been dismissive, given the lack of response to her reports.
2. She had reported a repair to the back-to-back electric sockets on the upstairs landing/room. An electrician arrived to make the socket safe, then stated he would return once the wall had been plastered. Two operatives attended and tore off a large amount of wallpaper from both sides of the wall, then re-plastered the wall. She had not been informed about the removal of the wallpaper and more was removed than was necessary. The operatives also left plaster on both carpets. Both the landing and upstairs room required redecoration. She requested the cost of replacing her wallpaper.
3. The resident’s wet-room on the ground floor had been installed due to her physical disability. Due to an issue with the wet-room flooring, water collected under the floor and caused the adjacent wall to get wet, thus causing the wallpaper to lift from the wall. She telephoned the repairs centre who informed her that she would need to remove the wallpaper so the wall could dry out. A member of staff visited to assess the works required. He stated that the sitting room wall would need to be re-plastered once it had dried out, although that would not be done until the wet-room floor had been replaced. The wet-room floor was replaced, however the sitting room wall was not re-plastered and she was not compensated for the damage to the wallpaper. She felt the damage to the wallpaper was due to the poor standard of work by the landlord’s operatives whilst replacing the wet-room floor.
4. The water did not flow down the wet-room floor into the drain. This meant that when the toilet was flushed, the contents of the toilet came up through the drain and emptied on the floor. She made a number of telephone calls to the repair centre to report it. She was told that the council was not then carrying out works to wet-rooms, even though she had explained it was a drainage issue, the phone then went dead. A workman attended, lifted the manhole cover, and informed her there was no blockage. She telephoned the water company who attended the property, lifted the manhole cover, and informed her that the block was under the house and they were unable to deal with it as it was the landlord’s property. The landlord arranged a drainage company to attend. The drainage company stated that they would need to use a camera which would require permission from the landlord. It transpired that the cause of the blockage was due to previous workman leaving debris in the drain. The drainage contractor had the evidence of this. This situation went on for three and a half weeks. During this period, she was unable to use the toilet, sink or shower area. She had to use a portable pot as a toilet. A family member would take the pot in his car to empty and clean it at their residence before returning it. She had to use a bowl, instead of the sink, and was unable to wash her hair. She was unable to stay with family as their property was difficult for her to access. It was a clearly a health and safety issue as the bathroom was flooded, and the water had run into the hall and over the carpet. The property was not suitable for habitation. During this period, she received a yellow card through her door asking her to call a number if she wanted a portable pot. She was offended as no other assistance was offered. She requested a full rent refund for the period that this property was inhabitable, and compensation for the distress and misery caused.
5. The landlord telephoned her and attended the property. It arranged for the re-plastering of the sitting room wall and agreed to have a decorator visit to hang the new wallpaper she had purchased for the sitting room and paint the bathroom ceiling. A plasterer attended. She was delighted with his work. Some weeks later a decorator visited to arrange a date to hang the wallpaper. Despite his assurances, he did not attend on the agreed date. After difficulties contacting him, another date was agreed. She said that, although the operative put the wallpaper up, one piece did not reach the skirting board, none of the sheets were straight, they all overlapped, there were gaps between the sheets and a huge mess by the doorframe. The decorator also managed to get paint on the bathroom tiles, the sink tap, the floor, and a pair of her trousers. He also used her microwave to heat his lunch, then sat on the arm of her sofa to eat it. She found this behaviour disrespectful and unprofessional. The landlord inspected the poor workmanship and damage to her trousers and took photographs. The upstairs landing and other rooms had still not been decorated.
6. She requested compensation for the wallpaper at £16 per roll (4 rolls), and the cost of replacing the trousers at £40.
There was no reference to sockets and to replacing the floor to the wet-room in the records, however the landlord informed this service that the floor covering had been repaired several times.
According to internal emails of late November and early December 2019, there was an internal discussion within the landlord about the level of compensation which included a reference to photographs.
The landlord wrote to the resident on 24 December 2019 as follows:
1. It recognised that “matters” could have been handled better.
2. The landlord was under no obligation to undertake the decorating as this was normally the tenant’s responsibility. It had inspected her property and the decorating. It considered that the decorating undertaken was of a reasonable and acceptable standard and offered £100 for her time and trouble and for reimbursement of the wallpaper.
On 16 January 2020, the landlord’s surveyor inspected the property. It identified the following issues and works:
1. Make good the stair hallway.
2. Check the ceiling over the stairs for asbestos.
3. Hallway paper had been removed from walls by operatives.
4. Poor standard of papering in the living-room by an operative.
The resident wrote to the landlord on 23 January 2020 in response to the landlord’s complaint response dated 24 December 2019 as follows:
1. The landlord had failed to address all her complaints, which she felt was further evidence of being treated in a dismissive manner and being treated unfairly. She had raised issues of damage to her personal property, health & safety issues, and neglect of her welfare.
2. While decoration was her responsibility, it became the landlord’s responsibility once its contractor or employees damaged it “unnecessarily/maliciously.”
3. She accepted the offer of £100 in relation to the wallpaper in the sitting room and the paint on her trousers. However, the offer was not acceptable for the remainder of her complaint.
4. She said she was unable to use her wet-room for three and a half weeks. She added that she had endured living in a property that was uninhabitable which caused her great discomfort and stress. She had no access to a sink, toilet or shower. She was unable to get and stay clean. The lack of the facilities caused her great sadness and shame, and affected her wellbeing.
5. She requested a rent rebate for the three and half weeks without a wet-room.
The government announced a lockdown on 23 March 2020 and issued guidance that the landlord should only carry out emergency repairs.
There was a further lengthy gap in the evidence, of over a year.
On 28 January 2021, the landlord checked for asbestos under wood chip wallpaper in hall and landing.
On 25 February 2021, the landlord inspected the property to assess what decorating works were required to the living-room, bedroom, stairwell and both hallways.
On 26 May 2021, the landlord wrote to the resident referring to a telephone call with the resident. It escalated the complaint to its second stage and would reply by 17 June 2021.
The landlord wrote to the resident on 17 June 2021. She had requested a review of the decision in January 2020 but had not followed this up due to issues relating to the ongoing Covid 19 pandemic. It increased its offer to £250 for the distress and inconvenience caused when she was without the use of the toilet in 2019 (sic). As she was still unhappy, it would review the amount of compensation offered. It had not formally closed the complaint
The landlord wrote again on 22 June 2021. The landlord had increased its offer to £450 consisting of:
1. £100 for the damage to the trousers and wallpaper
2. £350 for the distress and inconvenience.
The landlord has informed this service that it had arranged for an inspection on 25 February 2022 to provide a scope for decorating to the living-room, stairwell, both upstairs and downstairs hallway, and bedroom and to carry out an asbestos test. Once the scope of work has been received an appointment would be arranged to carry out the necessary works. An asbestos test was to be carried out.

Assessment and findings

This investigation was somewhat hampered by the quality of the records provided by the landlord. There was difficulty in correlating the resident’s account with the landlord’s own account of events. It has been highlighted throughout this report where there were gaps in the information. There was no outcome of the resident’s report dated 26 April 2019 and despite the landlord referring to photographs in its own correspondence, the landlord did not locate them.
The Ombudsman can only base its decisions on the documentary evidence provided to it by the parties and there is an expectation that the landlord, as the professional organisation with resources available to it, should be in a position to provide adequate evidence of its actions. However, the Ombudsman deemed there was sufficient information from which to draw its conclusions. On this basis, the Ombudsman has not made a finding of maladministration specifically in relation to the landlord’s record keeping, but has taken the evidence of poor record keeping into account when considering the substantive issues in this complaint.
Good record keeping is vital in order to maintain a record of its actions. It is also important in instilling confidence in the landlord in its managements systems and information. The landlord should therefore take steps to ensure that its record keeping practices are adequate and the Ombudsman has made a recommendation to the landlord regarding this at the end of this report.

The landlord’s response to the resident’s reports of a blockage in the wet-room drainage.

The resident reported that there had been a number of difficulties reporting the blockage to the drainage in the wet-room. These difficulties appeared to precede the report of 11 November 2018, although there are no records by the landlord of these reports. Given the gaps in record keeping, it is inconclusive. However, the water company was contacted on 9 November 2018 indicating that it was the resident who made that call. In the circumstances, it is reasonable to conclude that the resident’s report of 11 November 2018 was not her first report.
The evidence showed that the landlord unblocked the resident’s toilet a day after it was reported as blocked, and that it removed her toilet on 27 November 2018, when it was replaced by a chemical toilet. However, the records are not clear as to the exact events. The chemical toilet remained in the property until 6 February 2019 when the repairs to the drain took place.
It is reasonable to conclude that the resident’s complaint that she was not able to use her wet-room related to the period following her report of a faulty toilet and leading up to the 27 November 2018. This is because the landlord referred to replacing the temporary toilet on 27 November 2018. This is supported by the context of the resident’s complaint.
However, while the exact dates and events are not clear, it was not disputed by the landlord that the resident was without a toilet for three and a half weeks. The resident requested a rebate for her rent for that period. The landlord has informed this service that the rent was £118.42 per week at the time, a total amount of £354.00. Given the impact of the lack of a proper working toilet on the resident, in particular in the light of her disabilities, the evidence of her distress, the loss of her dignity, all of which the resident described in detail in her complaint, coupled together with the ensuing delays referred to below, and the failure of the landlord to recognise the resident’s stress and inconvenience, the Ombudsman does not consider that £350 was adequate compensation for the lack of a toilet. However, eventually, the landlord did go some way to compensate of the resident. In the circumstances, the Ombudsman finds service failure in the landlord’s response to the resident’s reports of a blockage in the wet-room drainage.

The landlord’s response to the resident’s reports in relation to the standard of decorative works in her property.

There were two issues in relation to the decorating. The first issue was that an operative of the landlord tore wallpaper off the wall in the upstairs room after fitting a wall socket. There is no evidence when this occurred or whether it was the fault of the landlord, but it had occurred prior to 18 November 2019, when the resident made her complaint. The second issue was that the wallpaper in the sitting room was hung in an unsatisfactory manner. The landlord arranged to inspect the property and eventually accepted that was the case. Again, it was not clear whether the landlord had an obligation to fit the wallpaper, however it undertook to do so and so the Ombudsman would expect it to do so in a satisfactory manner. The delay between 2019 and March 2020 was not explained. The further two-year delay was only partially explained by the pandemic and the need to test for asbestos. However, the Ombudsman considers that the landlord’s offer to remedy the matter and the offer of £100 for the wallpaper and damaged trousers was satisfactory and the resident has accepted the offer.

The landlord’s complaint handling

While the landlord accepted its failings, and there was evidence of individuals seeking to assist the resident, it did not, overall, recognise the impact of a lack of sanitary facilities on the resident. It did not recognise that the resident suffered from serious disabilities and was vulnerable, which the landlord was aware of as it had fitted adaptations in her property. The complaint responses did not address her distress. It did not note that the resident felt dismissed by the landlord and did not acknowledge her experience in any way. It did not provide any explanation as to why her request for compensation equivalent to three weeks’ rent was initially refused.
There was also a very significant delay, of over 18 months in its escalating the complaint. Given the resident requested her complaint be escalated in January 2020, two months prior to lockdown, the pandemic was not a reason for a delay of 18 months, which timeframe without an explanation or update was unacceptable in any event. A complaint is the landlord’s opportunity to put matters right, to express empathy, and to improve the landlord/tenant relationship. It did not take that opportunity. In the circumstances, the Ombudsman finds maladministration in relation to its complaint handling.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, in the Ombudsman’s view, there was service failure in the landlord’s response to the resident’s reports of a blockage in the wet-room drainage.
In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, in the Ombudsman’s view, there was reasonable redress offered by the landlord in response to the resident’s reports in relation to the standard of decorative works in her property.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration in relation to the landlord’s complaint handling.

Reasons

The lack of a working toilet for three and a half weeks had a significant impact on the resident, particularly given her disabilities, and the landlord’s offer of compensation was not sufficient, given the resident’s circumstances. The Ombudsman would have found maladministration but for the landlord’s increase in its offer of compensation.
While the poor decoration workmanship caused the resident frustration, and the redecoration was significantly delayed, without this delay being fully explained, the landlord rectified the matter by offering to redecorate. It agreed to pay for the cost of the wallpaper and damage to the resident’s trousers. This, in the view of the Ombudsman, constituted reasonable redress for the failings identified.
The escalation of the resident’s complaint was significantly delayed without a proper reason for the length of the delay, or update in the meantime. While the landlord eventually accepted its failings, it did not demonstrate any recognition or acknowledgement of the impact on the resident. This meant the resident had to escalate her complaint, which would only have exacerbated her feelings of distress and feelings of being dismissed.

Orders

The landlord is ordered to pay the resident, within 28 days, compensation in addition to the £450 already offered, as follows:
1. An additional £150 in respect of its response to the resident’s reports of a blockage in the wet-room drainage.
2. £250 in respect of its complaint handling.

Recommendations

The landlord should pay the sum of £450 already offered to the resident if it has not already done so.
The landlord should carry out an asbestos test, if it has not already done so, and inform the resident of the outcome.
The landlord should update the resident on the decoration works if they have not yet been carried out.
The landlord should ensure that it responds to its residents in a comprehensive way and keeps the individual in sight, bearing in mind the events and the individual’s circumstances.
In light of the findings in this report regarding its documents, the landlord reviews its records management, ensuring that records are accessible and comprehensive so that the landlord can track its own actions.
The landlord should ensure that it keeps a clear track of its complaints process and its staff adhere to the timescales set out in its complaints procedures.
The landlord should publish its full policies and procedures on its website, not only a summary, so as to ensure full transparency.