Bromsgrove District Housing Trust Limited (202013026)

REPORT

COMPLAINT 202013026

Bromsgrove District Housing Trust Limited

26 July 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 resident complained about the landlord’s response to:
1. his report of flooding at the property.
2. his concern that the flooding was the result of the property’s flawed development / construction.
3. his request for compensation.

Jurisdiction

Complaint 1(b): Central to the resident’s complaint was his claim that the landlord was wrong to build the property where it did as it knew of a flood risk and that had it told the planning authorities what it knew about this, planning permission would only have been granted on the condition that the landlord include the flood prevention measures it has now installed at the property. The resident considers that had the landlord done this before the property was built he and his wife would have been spared the disruption and stress they have subsequently suffered as a result of the flooding and the building work needed to put right the damage and prevent future flooding.
What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (the 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, or aspects of it do not come within our jurisdiction. We have concluded the resident’s complaint about the development and construction of the property does not come within our jurisdiction. This is because those matters occurred before there was a landlord tenant relationship between the landlord and the resident and under paragraph 25(a) of the Scheme, the Ombudsman can only consider complaints where the resident had a legal relationship with the landlord (ie a tenant landlord relationship) at the time that the matter complained of arose.
Furthermore, we are unable to consider the resident’s claim that the landlord is liable for damages as it knew of the flood risk. This is because it is not for the Ombudsman but for insurers in the first instance, and by extension the courts to determine any dispute as to legal responsibility for damages. It is they who have the professional role for settling disputes concerning liability. This is reflected in 39(i) of the Scheme which states that the Ombudsman will not consider a matter where it considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.
Accordingly, the above matter has not been investigated by the Ombudsman.

Background and summary of events

In December 2019 the resident and his wife signed the tenancy for the property, a new build 1 bedroom semi detached bungalow which is owned and managed by the landlord. The resident and his wife are both elderly, registered disabled people and are both wheelchair users.
On 17 August 2020 the resident’s property suffered flash flooding during a period of heavy rain. The resident has told the Ombudsman that he called the landlord and it sent contractors to clean up but that after 45 minutes it began to rain again causing further flooding. The landlord has also said the same day it delivered sandbags to the property and arranged for the resident and his wife to be decanted to a local hotel. [This was for a week initially but was then extended to a month.] The day after the flood the landlord’s surveyor attended the property. He inspected the damage, met with the resident, inspected the drains and instructed civil engineers.
The engineers attended the following day and the landlord arranged for the removal of household items into storage. On 20 August 2020 the landlord arranged for a dehumidifier at the property and has said that between 18 August – 13 September 2020 it undertook remedial works to the property.
On 1 September 2020 the water service provider (water company) attended to assess the situation and on 7 September 2020 the engineers reported their findings to the landlord and made recommendations for the work required.
Between 14 September – 7 October 2020 the resident called to speak to the landlord about the stress he and his wife were under and about the damage to their property. Before moving back into the property on 16 September 2020 the residents employed a cleaning company to clean the property – the landlord has said it believes this was mainly due to the dust generated from the work completed after the flood. The landlord has confirmed it reimbursed the residents the cost of the cleaning.
Through October – November 2020 the landlord liaised with the local authority about appropriate flood defence measures and on 15 October 2020 obtained necessary approval from the water company for a drainage upgrade.
On 24 October 2020 the property suffered further flooding. The landlord said it received the residents’ call at 10pm and attended at 10.45pm. The landlord has said there was only limited damage to the property on that occasion and a decant was not warranted, although its director did offer to decant the residents. The residents declined, saying they were happy to remain in the property as the resident’s wife was poorly with Covid. However, flood water had affected the carpets and the landlord has said it arranged for them to be dried and cleaned.
On 26 October 2020 the landlord’s surveyors attended to assess site issues and the following day the Highways Agency attended to assess the surrounding road/infrastructure issues.
Stage 1 complaint: Meanwhile on 29 October 2020 the landlord received a formal complaint from the resident in which he said he wanted a ‘significant apology’ from the landlord in the form of compensation. [The landlord operates a two stage complaints procedure through which it aims to provide its Stage 1 investigation outcome within 10 working days and its Stage 2 review decision, if the resident remains dissatisfied, within a further 5 working days.]
On 11 November 2020 flood barriers were installed to the front and rear of the property and on 13 November 2020 the landlord met with consultants and contractors on site to discuss further design and overall improvements. This work was external to the property and was carried out on 25 November 2020.
On 12 November 2020 the landlord had met with the resident to discuss the complaint. The landlord’s record of the discussion notes that the residents knew it was “…doing everything to try and resolve [matters] but that does not take away the stresses it has caused especially during the pandemic.” The landlord also noted the residents were happy to stay at the property provided works were completed to the driveway. [There is no evidence this was not done.]
Stage 1 complaint response: On 23 November 2020 the landlord responded to the complaint. In summary, it explained:
1. It had met the resident at the property, discussed the complaint, inspected the issues experienced and spoken with staff who had handled the decant.
2. It had decanted the resident and his wife to a hotel in response to the flood on 17 August 2020 and they had remained decanted at the hotel while drying out works were completed and floor coverings replaced.
3. All their possessions had to be removed for this and removal contractors were used.
4. They were reimbursed their expenses while at the hotel. [The landlord has confirmed it reimbursed the residents a total of £1345.40.]
5. Upon return to the property the residents had noted specific damage to certain possessions: scratched paintwork on two wardrobes; dented and scratched TV sideboard; creasing to three suits and two overcoats having been stored in bags. The resident did not want these items repaired, but to be compensated for the damage.
6. A dehumidifier had run for two weeks at the property and their water supply had been used to clean down the access road.
7. The second flood on 24 October 2020 had not required them to decant but it had arranged for cleaning/drying of the affected carpets.
8. The resident had sought reimbursement of the cost of the carpets rather than the landlord replace them.
9. It noted the resident wanted £10,000 compensation for the time, trouble and stress of being decanted and the secondary flood.
10. The property had a drainage system for storm water on the site itself, but both floods were caused by off-site water flooding the site of the property.
11. It had installed a flood barrier to the front and back doors as a temporary measure and would replace these with flood doors. [The resident has confirmed these were then installed.]
12. It explained its plans for more extensive permanent flood defences around the property, for which it gave specific details. It had instructed contractors and would keep them updated on progress.
13. It apologised for the frustration and disruption caused by the two flooding incidents but found it had met its duty of care in ensuring the residents’ decant when required.
14. It had assessed the claim for damage to personal belongings and in accordance with its compensation policy offered a total of £2,110 comprising: £500 for replacement TV sideboard; £600 for replacement wardrobes; £50 dry cleaning cost of suits/coats; £25 for two weeks running of dehumidifiers; £15 for water usage; and £920 for replacement carpets and flooring.
15. It offered the residents £1500 for the time and trouble caused by the floods.
16. It undertook to complete the flood defence works, and thereafter to replace any water damaged doors and skirting boards in the property.
On 25 November 2020 sandbags were removed and on 2 December 2020 the landlord raised a request for flood defence measures to be installed, with a completion target date of 15 December 2020.
Stage 2 request: On 30 November 2020 the resident asked that his complaint be escalated for a review. He reiterated his concern that the landlord had built the property in an area which he said it knew was known for flooding. He described how the two flood incidents on 17 August 2020 and 24 October 2020 had caused his wife anxiety and panic attacks and that they had both “…suffered immeasurable stress, tension, fear and massive ongoing uncertainty.” He said that his wife was worried about further flooding.
On 2 December 2020 the landlord instructed contractors to install flood defence measures.
Stage 2 response: On 10 December 2020, having met with the resident, the landlord notified him of the outcome of its compensation review for the damage to the residents’ carpets and personal belongings and for the stress and anxiety the situation had caused him and his wife. In summary:
1. It acknowledged how stressful and difficult the flooding incidents had been for them, including having to decant for the first incident.
2. It had exercised a duty of care in providing and paying for alternative accommodation during that time.
3. During the incidents it had responded quickly and with concern for their welfare.
4. It had made improvements to the property and residential area to protect against further flooding; was shortly to undertake additional further works to the site; and was arranging for additional work to address the off-site causes of the flooding.
5. It had reconsidered its earlier £1,500 offer of compensation and increased this to £2,500.
6. In addition it agreed to reimburse the residents the one month rent of £416.60 they had paid whilst having been decanted to the hotel.
7. These offers together with its earlier agreement to reimburse £2,110 for damaged carpets and personal belongings totalled an overall payment of £5,026.60.
On 12 December 2020 the landlord agreed the works specification with all parties and additional works began on-site for mitigation of flood risk from off-site causes. [It is unclear when these works were finally completed but the landlord obtained ‘sign off’ on completion of all mitigation works by 14 April 2021.]
On 15 December 2020 resident accepted the compensation but made clear he thought more was justified. The landlord has said it then declined the resident’s request to remove a flood barrier to the garden gate as this would risk a recurrence of the flooding.
In January 2021 the resident referred his complaint to the Ombudsman. The resident also told the Ombudsman that when he first reported the damage to his furniture the landlord told him to claim on his own insurance and he was unhappy that he now has to remove a flood barrier each time he leaves his home as he finds this very difficult on account of his arthritis. He is also concerned that the barrier prevents him opening his patio doors when it is in place which he considers a fire hazard.

Assessment and findings

As already explained, what the Ombudsman is considering here is the landlord’s response to the resident’s report of the flooding and its response to his complaint, primarily his request for compensation.
Response to reports of flooding: It is not suggested by the resident, nor does the evidence indicate that the flooding of the resident’s property was the result of a failure by the landlord to comply with any repair/maintenance obligation for either the property itself or the drainage of its surrounding area. [The resident claims it was the result of events pre-construction of the property, but that is not being considered here.] The evidence indicates the flooding was the result of excessive rainfall and other contributory factors, none of which were the direct responsibility of the landlord.
Although the flood was not the fault of the landlord, it still had responsibility under the tenancy agreement and its repairs policy for the drainage of the property, to attend to repairs and to ensure the safety of the property. It therefore had an obligation to respond to the resident’s report of the flooding, ascertain the cause, take action to prevent a recurrence and make good the resulting damage to the property.
For clarity, while the resident has referred to there having been four flooding incidents, the evidence presented is of two– one major one on 17 August 2020 and a more minor one on 24 October 2020 – and it was these that were recorded and responded to by the landlord. It would therefore appear that the resident’s reference to the two additional floods is in relation to follow-on rainfall from these two recorded incidents and the resident has not raised a complaint in relation to any incident other than these two.
The evidence in relation to the landlord’s response to the first incident is that it responded in accordance with its repairs procedure. This was an emergency call out and it responded by attending and taking immediate action to decant the residents to temporary accommodation and take steps to prevent/ease further flooding (ie with sandbags) while the situation was assessed. That response was in accordance with its repairs procedure response time for an emergency, and decanting the residents was in accordance with its policy to decant in order to carry out emergency repairs following a disaster (such as a flood) and to carry out major improvement/repair works.
The resident was unhappy with the overall time to resolve the situation and the fact that he and his wife had to live with a degree of disruption while external building works continued. [They moved back a month after having been decanted.] The Ombudsman recognises this was a period of considerable disruption for the residents. However, there is no specific timescale under the landlord’s repairs policy for completion of major works such as this, and the evidence of the overall time taken – from August 2020 to some time prior to April 2021 (final date of completion of all works is unclear) – indicates this was not the result of delay on the part of the landlord. Rather, the evidence indicates it was the result of the complex and extensive nature of the issue to be resolved; the fact that it involved multiple other agencies – the Council, the Highways Agency, the water company, specialist engineers – and that particular works at various stages required prior approval from these other agencies. Throughout this time the Ombudsman has not seen evidence that the resident was unaware of developments as the works progressed.
There is also no suggestion from the information the Ombudsman has seen that when the resident moved back into the property a month after the first flood, that he was unhappy with the work that had been done/ was being done by the landlord to return his property to its previous condition (which the landlord was required to under its repairs policy.]
Further internal damage resulted from the second flood in October 2020 but the evidence of the landlord’s response to this shows it responded promptly and appropriately. It again responded to the emergency call out by attending within 45 minutes, and offered to decant the residents – despite it not considering it to be warranted – and undertook to make good the resulting damage to the carpets. That was a reasonable response from the landlord and in offering to decant the residents when it was not obliged to, indicates it was being appropriately sensitive to the ongoing impact of the stressful situation on the resident and his wife.
The resident appears to have considered the landlord was responsible for this second flooding but the Ombudsman has seen no evidence that it was. The evidence is that the landlord was taking action at this time to get work underway to address the more fundamental external factors which were causing the flooding issue, that it had taken some steps to protect the property (ie use of sandbags) and that it was not a case of the landlord moving too slowly on this or failing to take a specific action required of it to prevent further flooding which caused this second episode.

Response to request for compensation:

This brings the Ombudsman to the crux of the resident’s complaint, namely his request for compensation, as it was this which remained unresolved having exhausted the landlord’s complaints procedure.
The resident had sought £10,000 compensation as ‘significant apology’ for the stress and disruption suffered by himself and his wife. As already explained, the Ombudsman will not be considering the issue of the development of the site and construction of the property or liability for any matter that might potentially arise from that. The Ombudsman has also found no evidence of service failure on the part of the landlord which caused the flooding of the property.
That being the case, however, the landlord was still obliged to consider the resident’s claim for compensation when responding to his complaint and the Ombudsman has considered whether its response was in accordance with its relevant policies for complaints and compensation and whether it was fair and reasonable in all the circumstances of the case.
In fulfilling its obligation to repair and make good the property, and to implement the wider ranging drainage works, the Ombudsman considers it was appropriate for the landlord to reimburse the residents for use of their electricity and water supply. It was also reasonable, and in accordance with its repairs policy, that it reimburse them the expenses they reasonably incurred while at the hotel and in agreeing to pay for replacement of their possessions damaged by its removal contractors. The Ombudsman has seen no evidence that the resident was unhappy with the reimbursement for those items.
On this point, the resident was unhappy with having been told initially by the landlord that he would need to claim for these items from his own insurance. [The landlord has no record of the conversation but confirms it would have been standard advice.] The Ombudsman notes the landlord would not be responsible for any damage to the residents’ belongings as a result of the flood as it would not have occurred as a result of a failure on its part. Furthermore, under its tenancy agreement it strongly advises residents to take out their own contents insurance. But the damage here was claimed to be the result of the actions of a removal company who had been contracted by the landlord – not the residents – and there is no evidence the damage reported had arisen through fault on the part of the residents.
Consequently, as it was the landlord with whom the residents had a contractual relationship and the damage to their belongings had been caused by the actions of the removal company acting on the landlord’s behalf, it was reasonable it compensate the residents directly for that damage and it could subsequently pursue a claim directly with the removers if it considered that to be appropriate. In any event, this is what the landlord subsequently did and there is no evidence that having initially directed the resident to claim on his insurance caused unreasonable delay or ultimate detriment to the residents.
Aside from damage to the residents’ property and possessions, the Ombudsman notes the landlord also refunded the residents a month’s rent they had paid while decanted at the hotel and unable to use their property. The Ombudsman does not see that under the landlord’s compensation policy it was obliged to refund rent during the period of the decant. This was because they were not being charged for the hotel and in decanting the residents to the hotel it was ensuring the continuation of basic amenities.
However, in light of the residents’ disabilities and the fact that they had not been decanted to a like-for-like property (ie one better suited to their needs) the Ombudsman considers it was fair and reasonable and in accordance with its compensation policy for the landlord to compensate them for the ‘disturbance and loss of non-essential facility’, ie compensate them for the fact that the hotel did not have all the facilities of their property. The Ombudsman notes that in refunding a month’s rent, the landlord effectively compensated them at a higher rate than that considered necessary in its compensation guide, the calculation of which is based on a percentage of the previous daily rent and having been without certain facilities, including a garden. The Ombudsman sees that in providing this additional compensation the landlord was responding fairly and demonstrating due sensitivity to the unfortunate position in which the residents found themselves and the clear inconvenience of having to live at the hotel.
This brings the Ombudsman to the remaining sticking point for the resident, the compensation for stress and inconvenience. The landlord offered £2,500, but the resident sought £10,000. The Ombudsman notes that under the landlord’s complaints and compensation policy the landlord undertakes to compensate for service failure, but the Ombudsman has not seen evidence of service failure in this case. On this point, the landlord has explained that the payment was made not for service failure but as a gesture of goodwill to resolve the complaint as it empathised with the residents’ situation. Specifically, it has explained to the Ombudsman that it considered it appropriate that:”…as a landlord with a social mission, to go the extra mile to help return [them] to the position they were in before the flooding occurred, and taking into account the stress this situation had caused…”
The Ombudsman acknowledges and understands the residents found being decanted very stressful because it was during the pandemic, they were both shielding, and they were worried about contact with other people. As the Ombudsman sees it, despite there being no service failure on its part, in awarding compensation of £2,500 the landlord was appropriately sensitive to the fact of the unfortunate and stressful situation in which the residents found themselves through no fault on their part. They had had to live with the disruption of the flooding, then building work, and meanwhile be decanted and deprived of the use of a property better suited to their needs. The Ombudsman considers the landlord’s goodwill gesture of £2,500 compensation was a fair and customer-focused response and in light of the fact that there is no evidence of a service failure by the landlord, there are no grounds to justify a request from the Ombudsman that the landlord increase its offer.
Finally, the fact that the landlord offered the rent refund and the increased compensation offer only after further discussion with the resident following the escalation of their complaint for review, does not indicate to the Ombudsman a failure in the landlord’s consideration of the complaint. The landlord’s earlier Stage 1 response was provided after discussion with the resident and was, in the Ombudsman’s view, a considered response which appropriately focused on compensation, including a comprehensive, detailed breakdown of the individual items for which it was reimbursing, refunding and compensating. It also appropriately explained the work being undertaken to resolve the wider drainage issue. That was a reasonable and appropriate Stage 1 response.
The resident then sought a review, not because the landlord had failed to address any particular aspect of his complaint but because of his disagreement around an appropriate level of compensation for stress and inconvenience. The Ombudsman sees the fact that the landlord increased its offer after further discussion with the resident in the course of its review to be evidence not of a failure in its complaint handling but of an effective review process. The evidence indicates the landlord engaged with the resident on the outstanding issues and sought to go above and beyond its obligation to compensate in what seems to the Ombudsman to have been a genuine attempt by the landlord to try and resolve matters satisfactorily for the resident. The fact that it would not agree to the £10,000 sought by the resident was not evidence of the landlord failing to appropriately consider the complaint or request for compensation.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in its response to the resident’s report of flooding at the property.
In accordance with paragraphs 25(a) and 39(i) the resident’s complaint about the landlord’s response to his concern that the flooding was the result of the property’s flawed development / construction is not within the Ombudsman’s jurisdiction.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in its response to the resident’s request for compensation.

Reasons

The landlord responded promptly and appropriately to the resident’s report of flooding at the property. It responded to both reports within its emergency callout timescales, took immediate action to decant the residents when appropriate, and made good damage to the property while undertaking the wider ranging work necessary to prevent a recurrence in accordance with its repair obligations.
The complaint concerning the development of the site and the property’s construction, together with consideration of any liability that might stem from this does not come within the Ombudsman’s jurisdiction.
The landlord fully considered the resident’s request for compensation. It reimbursed the residents their expenses, compensated them for being deprived of their property while decanted, and reimbursed them the cost of their damaged possessions and belongings. This appropriately sought to return them to the position they would have been in had it not been for the flooding. This left the stress and inconvenience they had suffered. While no service failure by the landlord had caused this, the landlord’s award of £2,500 compensation was fair and reasonable recognition of the unfortunate and stressful situation in which the residents found themselves.

Recommendations

With respect to the resident’s concern about a specific flood barrier at the property (paragraphs 23 & 24 refer), it is recommended that the landlord discuss with the resident how he might more easily use it, and also inspect it to assure both itself and the resident that it does not constitute a fire hazard.