Newham Council (202011551)

REPORT

COMPLAINT 202011551

Newham Council

12 May 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 a contaminated water tank.
2. The Ombudsman has also considered the landlord’s complaint handling.

Background and Summary of Events

Background

3. The resident is a leaseholder of a flat within a purpose-built block, which is sublet to tenants.
4. The landlord’s Complaints policy notes the complaints process allows opportunity for early resolution of non-complex issues without requiring a formal investigation or detailed written response. It states required actions to resolve the situation should either take place within 20 working days, or, if scheduled work is required, a definitive date on which work is to take place is confirmed within the 20-working day period. If more detailed consideration and decision on fault is required, or as requested by the complainant themselves, a formal investigation will be undertaken, and a stage 1 response provided within 20 working days.
5. A Stage 2 Corporate Complaint Review will be carried out if a complainant does not agree with a Stage 1 Corporate Complaint response, or is unhappy with the results of an early resolution process. A response will be provided in 15 working days which will include an outcome along with options and advice on further actions the complainant may consider.
6. The landlord’s Compensation policy notes time and trouble is different from delay and distress. It is to reflect difficulty and time-consuming activities on the part of the complainant in dealing with the practicalities of the issue or the inconvenience of following up the issue multiple times. Suggested payments in the range of £50 to £150 from Low (1-2 months) to High (4 or more months) impact.
7. Delay and distress is more serious than time and trouble. This is where the delay and/or distress caused by the failure has an appreciable to significant effect on the anxiety, frustration, and annoyance of those concerned, and/or has caused a great deal of uncertainty. Time, impact, and the number of people affected should be taken into account. Suggested payments in the range of £50 to £150 for Low to Moderate impacts, rising to £400- £500 in very significant or exceptional cases.

Summary of Events

8. In June 2020, the resident reported that the hot water, in particular to the shower and basin in his bathroom was not heating properly and there were issues with the water system. He noted there was also no cold water to the property again due to an issue with the water tank. The resident also advised that the water tanks were mixing hot and cold water and requested the landlord investigate the matter.
9. On 10 July 2020, following several chasers by the resident, the landlord advised that it would arrange an emergency inspection of the water tank in the loft. An inspection was carried out, but the water tank was not assessed.
10. On 15 July 2020, the resident formally complained, and this was acknowledged on the same day.
11. In August 2020, the resident continued to chase a visit from the repairs team in relation to another matter. The landlord noted that a plumber had attended, and it was noted that a senior building surveyor would attend on 26 August and would enter the loft area to inspect the water tank. The resident noted that his own plumbers had attended and noted the issue was with the water tank. It was agreed the senior surveyor would give an opinion on the matter.
12. On 4 September, the resident advised the landlord that the surveyor had suggested an investigation of the water tanks would happen within the week, so sought an update on the matter. This was again chased on 10 September following which the landlord apologised for the delay noting an update would be provided shortly. The landlord updated the resident on a further two occasions apologising for the delay but noting an inspection was being arranged for 7 October. Due to unforeseen circumstances beyond the landlord’s control, it advised the inspection needed to be rearranged. The resident continued to chase updates on the appointment. The resident noted his dissatisfaction with the landlord’s failure to address the water tanks.
13. In November, the inspection was rescheduled but cancelled again due to the plumber self-isolating as a result of the Covid-19 pandemic. The resident further complained about the cancelled inspection not being rearranged, the lack of communication and the outstanding repair issues relating to a separate matter. The landlord acknowledged this email and apologised noting the repairs team had been handling the matter, it noted it would escalate the issue.
14. On 8 December, a legionella risk assessment of the block was carried out. It considered the cold-water service supplied via the mains water to the cold-water storage tanks in the loft in the top flat, which then supplied the individual properties. It noted that the overall risk of legionella was high with a risk both through the cold and hot water services, but that these risks were not as a result of inadequate controls and there were no factors affecting the risk of proliferation, including no visible contamination of the storage tanks/cistern. In relation to the tanks, it identified sludge being present in three of the four, but no biological slime, corrosion, contamination, or water stagnation. In one tank both sludge and biological slime was present.
15. It noted whilst the risk was high there was evidence of a management responsibility regime, and the system was maintained and compliant. It noted whilst the risk in the cold-water storage was high, the sentinel outlets in the top flat (cold mains, down service, and hot water system) were low risk. It did note however that there were no supplementary water treatment regimes in operation (ionisation or chlorine dioxide). The report recommended that the tanks were cleaned and disinfected with reassessment in 2 years’ time.
16. During January 2021, the resident continued to complain about a separate matter and the water tank issue. The Ombudsman also advised the landlord of the resident’s complaint relating to the water tank. In February, the resident reiterated  that the communal water tanks had not been investigated and it was noted a response would be received by 23 February 2021.
17. On 3 February, the landlord noted that the resident was complaining about the water tanks, however it commented on the separate repair issue, with no communication had in relation to the water tank.
18. In March, following the resident’s receipt of the legionella report he queried the matter with the landlord. The landlord responded noting it was normal to see high risk ratings on the types of installations in the property and for the resident not to be alarmed. It advised the risk ratings were not an indication of a current high-risk issue.
19. Following further dissatisfaction from the resident and contact from this Service, the landlord provided its stage 2 response on 21 April 2021, in relation to the separate matter however it failed to address the resident’s concerns about the water tank posing a health and safety risk.

Assessment and Findings

20. The resident has continually complained about issues with the water tanks causing both damage to his shower due to the hot water and cold-water mixing, and then subsequently contamination of the water tank. It is evident that there has been limited communication with the resident in relation to the water tank and he has continually had to chase the matter, yet no response has been forthcoming.
21. Having had sight of the legionella report the purpose of the assessment was to identify and assess the risk of exposure to legionella bacteria from work activities and water systems. Where risks were identified, the assessment would recommend measures to prevent or control such risks.
22. It is noted that landlords who provide residential or commercial accommodation, as the person in control of the premises or responsible for the water systems in their premises, have a legal duty to ensure that the risk of exposure of tenants, employees, contractors, or visitors to legionella is properly assessed and controlled.
23. The law requires simple, proportionate, and practical actions to be taken, including identifying and assessing source of risk, managing the risk preventing or controlling the risk; and periodically checking that any control measures are effective.
24. It is noted that landlords should inform tenants of the potential risk of exposure to legionella and its consequences and advise on any actions arising from the findings of the risk assessment, where appropriate. Tenants should be advised to inform the landlord if the hot water is not heating properly or if there are any other problems with the system, so that appropriate action can be taken.
25. It is clear that the resident complied with his obligation by informing the landlord of the issue with the hot water in his property, however the landlord delayed in carrying out an inspection of the issue. Whilst the landlord arranged for the water tank to be inspected, on the first instance the tank was not inspected and on the subsequent two occasions the inspections were cancelled. Again, it was left to the resident to continuously chase the matter.
26. Although the resident unduly had to chase the landlord for both the inspection and a response to his complaint, which will be further addressed later, the outcome of the report found that the landlord was taking the appropriate action expected in the course of maintaining the water tanks. Recommendations were made; however, no timeframes were given to these, but it was noted a reassessment was due in 2 years from the date of the report.
27. Given that the Ombudsman is not an expert in the matter, reliance has been given to the report. It is also reasonable that the landlord would have relied on the report, to which it was entitled too. However, given the lack of evidence of the action the landlord has taken and the delay in completing the inspection, there was service failure, and the Ombudsman will make orders, including those in relation to the actions recommended within the report.
28. In relation to the landlord’s response to the resident’s concerns, it is clear that there was maladministration. The landlord on several occasions failed to address the resident’s concerns, concerns which were also highlighted by this Service.
29. The resident continually chased the matter and there is no evidence that the landlord fully engaged with the resident in order to alleviate his concerns. This is also the case in relation to the landlord’s complaint handling. Though the resident and this Service raised the matter, the landlord failed to consider it appropriately and provide a response in line with its complaint’s procedure.
30. The resident found himself continuously expended time and effort in chasing the matter and given the health implications which were at the forefront of the resident’s mind, the anxiety, frustration, and annoyance was inevitably high. Had the landlord considered the complaint within its complaints procedure, it would have noted this, and the expectation would be that it would have offered redress, however it did not consider the matter at all.

Determination (decision)

31. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration (service failure) by the landlord in its response to a contaminated water tank.
32. In accordance with paragraph 54 of the housing Ombudsman Scheme, there was maladministration with the landlord’s complaint handling.

Reasons

33. The landlord delayed in inspecting the water tank and did not provide adequate explanation to the resident in order to alleviate his concerns. It is also not evidence whether the landlord completed the recommendations as noted within the legionella report.
34. The landlord completely failed to address the resident’s complaint and he was left to continuously chase the matter.

Orders

35. The Ombudsman orders that the landlord:
    1. Pays the resident a total of £800 made up as follows:
       1. £150 for time and trouble in pursuing the inspection of the water tank and a response at to the action the landlord will be taking.
       2. £500 for the delay and distress in resolving the matter, given it is still unclear if the landlord has indeed completed the recommendations as noted in the legionella report.
       3. £150 for the failure to respond to the complaint as per the complaints procedure.
    2. Schedule an appointment to complete the recommendation of cleaning and disinfecting the water tanks if this has not already been done.
    3. Provide additional training to its staff to ensure that all complaints raised are responded to appropriately.
36. All orders should be complied with within 4 weeks of the date of this report.