Notting Hill Genesis (202207986)

REPORT

COMPLAINT 202207986

Notting Hill Genesis

12 December 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:
   1. The landlord’s handling of repairs to the drainage system at the resident’s property.
   2. The landlord’s response to the resident’s request to be reimbursed for the costs she had incurred.

Background

2. The resident is a tenant of the landlord. The property is a flat on the bottom floor within a block of similar properties.
3. The resident had historically experienced issues with the drain outside her kitchen being blocked in April 2021. The repair requests were attended and the drain was left clear and flowing. The resident hired a private contractor to attend the property on 24 and 25 November 2021 due to the ongoing issues with the blocked external drain. The private contractors found that manholes at both the front and back of the property were filled with solidified waste and attempted to clear the blockages. The resident then reported the issue to the landlord on 26 November 2021. There were several failed appointments between 2 and 24 December 2021 and the landlord’s contractors then established that the water company would be responsible for attending and clearing the blockage.
4. The resident raised a formal complaint in January 2022 as she was dissatisfied that the drainage issues had not yet been resolved and that operatives had failed to attend on multiple occasions. She disputed the no access visits to the property and advised that operatives had not used her doorbell or called her. She explained that she had been forced to hire a private contractor due to the landlord’s failure to maintain the sanitary infrastructure of the building and its contractors failure to diagnose the wider issue on previous visits. She added that the issues were not previously rectified in May 2021 as the wider drainage issue had not been investigated. She asked that the landlord reimburse her for the costs associated with hiring a private contractor as the issue was not her responsibility to resolve and if she had not done so, the pipes would have burst and waste would have poured out. She also sought to be reimbursed £75 for her loss of earnings as she had needed to reschedule her work to allow access to operatives who had not shown up.
5. In response to the complaint, the landlord explained the following:
   1. There had been several no access appointments to the property and one reported missed appointment on 8 December 2021 as the visit was not correctly booked. It acknowledged that the resident had disputed the no access appointments and confirmed that the operatives had provided photos of her front door in line with its no access policy. It confirmed that it had highlighted the importance of allowing time for the resident to answer the door to its staff in line with a note on her file. It offered £30 compensation for the missed appointment and explained that its policy did not permit it to compensate resident’s for loss of earnings. 
   2. It apologised for the time taken to resolve the issues. It explained that it had needed to liaise with the water company as its contractors believed that the drain blockage would be the water company’s responsibility to resolve. It said that the water company was due to attend on 23 February 2022 and that it would follow-up on findings and any recommendations made to resolve the issues. It offered £100 compensation for the distress and inconvenience caused by the delay in resolving the issues.
   3. It agreed to offer the resident £440 towards the private contractors visits. It explained that repairs that were its responsibility needed to be reported and advised the resident against hiring her own contractors in future as this could impact any insurance it had for the building. It further explained that as the issue was not raised until after the resident had appointed private contractors, it had not had the opportunity to resolve the issue and would not reimburse the entirety of the costs incurred.
6. The records show that further work to clear the drainage system took place on 20 and 22 July 2022. Following a CCTV survey, operatives identified a break in the overflow pipe at the front of the property outside the boundary of the property which was the water company’s responsibility to resolve. The landlord has advised that the resident raised this directly with the water company and it had not been provided access to the report as the issue was reported directly by the resident.  
7. The resident referred her complaint to this Service as she remained dissatisfied with the repeated drainage issues at the property and the landlord’s failure to identify the wider issue at an earlier date. She wanted full reimbursement of the cost associated with hiring her own private contractor to resolve the drainage issues which amounted to £1,248.

Assessment and findings

The landlord’s handling of repairs to the drainage system at the resident’s property.

8. The resident’s tenancy agreement confirms that the landlord is responsible for maintaining the structure and exterior of the premises, including drains, gutters and external pipes. The resident is responsible for reporting any defects or repair issues which are the landlord’s responsibility to resolve. The landlord would only be responsible for arranging repairs for issues it had been made aware of. The landlord’s repairs policy states that emergency repairs, including serious sewage and drainage problems should be attended within four to 24 hours. Follow-on works may then be required. Routine repairs should be completed within 20 working days. Some repairs, where parts are required or where more than one stakeholder is involved, may take longer to resolve. The landlord would be expected to provide regular updates to the resident in order to manage their expectations.
9. The landlord’s compensation policy states that where an appointment is missed by the contractor at no fault of the resident, it would compensate £30 for a missed appointment. It confirms that it would not reimburse a resident for loss of earnings.
10. In this case, it is not disputed that there was a delay in resolving the drainage issues at the resident’s property from November 2021 and it remains unclear as to whether the issues have since been resolved. The landlord has acknowledged that the delay in resolving the drainage issues was likely to have caused inconvenience to the resident and offered £130 compensation in recognition of the inconvenience caused and one missed appointment.
11. The resident raised concern that the wider issue should have been diagnosed by the landlord’s operatives at an earlier date during previous repair appointments in April and May 2021 and that the landlord had breached the tenancy agreement by failing to do so. The evidence shows that the drain was cleared on both occasions and was left clear and flowing. The landlord was entitled to rely on the opinion of its contractors who determined that the drainage issue had been successfully resolved at the time. There is no further evidence to suggest that the resident had reported any other issues until November 2021. As such, it was understandable that the landlord believed that the issue had been resolved and that there was no need for further investigation prior to the resident’s reports in November 2021.
12. Following the resident’s report of drainage issues at both the front and back of the property in November 2021, the landlord acted appropriately by arranging an inspection, however, there was a delay in completing this due to several failed appointments. The landlord has acknowledged a missed appointment on 8 December 2021 which was not correctly raised with its contractors. The resident has disputed the reported no access appointments on 2, 16 and 21 December 2021 as she was at home on these dates. She also requested £75 compensation for her loss of earnings on these dates.
13. The Ombudsman would not generally propose a remedy of compensation to reimburse a resident for their loss of earnings whilst repairs are carried out. In line with the tenancy agreement, it would be the resident’s responsibility to provide access where required. However, it may be appropriate for landlords to offer compensation in recognition of any inconvenience caused by appointments that are missed or fail to resolve the repair issue. The landlord has confirmed that it had received two photos of the resident’s front door from its operatives to confirm the no access appointments in line with its no access procedure. The Ombudsman is unable to comment on what happened on each date. However, due to the lack of evidence to confirm that the third appointment was no access, it would have been appropriate for the landlord to have considered compensating the resident for the third failed appointment in line with its compensation policy. This is especially relevant given that it was unclear if the operatives had acted in line with the flag on the resident’s account – to allow additional time for her to answer the door.
14. The operatives who attended on 24 December 2021, established that the blockage was further down the line, outside of the property boundary. They believed that this would be the water company’s responsibility to resolve and acted appropriately by confirming this to the resident. It is noted that this was passed back to the landlord following attendance by the water company on 15 and 21 January 2022. The landlord then acted appropriately by arranging for the drains to be cleared by its operatives on 27 January 2022, within a reasonable timescale.
15. It should be noted that it can take more than one attempt to diagnose and resolve issues related to drainage systems as it can be difficult to identify the underlying cause of issue at the outset and in some cases different repairs may need to be attempted before the matter is resolved. This would not necessarily constitute a service failure by the landlord. In this case, the repair required was further complicated by the need to involve the water company. The Ombudsman cannot comment on who was responsible for resolving the blockage, however, the landlord would not be able to complete repairs to public infrastructure for which it was not responsible. The landlord was entitled to rely on the opinion of its qualified staff and contractors who determined that the fault lay outside of the property’s boundary and it was appropriate for it to assess this with the water company before proceeding.
16. The resident has also disputed that the operatives needed access to her property as the main issue related to the manhole at the front of the property, within a communal area. There may have been a valid reason that operatives needed access to the property given that the repair was raised following reports of drainage issues in the external basement area. However, the landlord did not confirm its position regarding the resident’s concern which would have been appropriate in order to provide clarity and manage the resident’s expectations.
17. In addition, the evidence shows that the resident needed to re-raise her reports of issues with the drainage at the back of her property on 28 January 2022 as no work had been carried out. This was likely to be inconvenient for the resident who had initially raised the concern some months prior. Whilst there may have been valid reasons as to why the drains at the front of the property needed to be prioritised, there is no evidence to suggest that the landlord had fully acknowledged or explained the delay in addressing the issues at the back of the property. Following this there was a further missed appointment on 1 February 2022 which the landlord has not accounted for within its compensation calculations for missed appointments.
18. In its stage two complaint response, the landlord confirmed that the water company was due to attend on 23 February 2022 and that it would follow-up on the findings and recommendations made. The Ombudsman would have expected to see evidence that the landlord had attempted to progress any required repairs during this time and provided updates to the resident. However, the landlord has not provided evidence of any further communication regarding the issue between February 2022 and July 2022, when further works were undertaken to clear the drain at the front of the property and the issue was again referred to the water company.
19. It is unclear as to whether the issues were ongoing during this period. However, it would have been appropriate for the landlord to have taken ownership over the issue and seen it through to resolution as agreed in its complaint response to prevent any additional inconvenience to the resident. The landlord confirmed in September 2022 that the water company would not share its report as the resident had raised the issue independently. As such, there were limited further steps the landlord could take. If the resident is still experiencing issues with the drainage at the property, she may wish to provide the landlord with any reports she has received from the water company in order to inform any further works required by the landlord.
20. Overall, the landlord’s offer of £130 compensation is not considered proportionate given the inconvenience and time and trouble caused to the resident in this case. The landlord should increase its offer to £250 to account for the two further failed appointments identified and the time and trouble spent by the resident in pursuing the repair issues. This is in line with the Ombudsman’s remedies guidance which states that amounts in this range are proportionate in instances of considerable service failure or maladministration which may not have had a permanent impact on the resident.

The landlord’s response to the resident’s request to be reimbursed for the costs she had incurred.

21. In this case, the resident has requested reimbursement of £1,248 associated with expenses she had incurred by arranging for work to be carried out to the drainage system independently. It is not disputed that the repairs reported to have been completed independently are likely to fall within the landlord’s repair responsibilities, however, this would not mean that the landlord would be obliged to reimburse the resident for the cost of carrying out the work.
22. In line with the tenancy agreement, the resident would be responsible for reporting repair issues affecting their property for which the landlord is responsible (whether these are emergency repairs or  non-urgent repairs). The resident arranged for works to be carried out independently on 24 and 25 November 2021 and informed the landlord of the issues on 26 November 2021. As such, the landlord was not made aware of the issues, did not have the opportunity to explain its position regarding the repair issues to the resident or take steps to rectify the issues reported prior to works being undertaken by a private contractor.
23. In addition, there is no evidence to suggest that the resident had discussed the cost of the works prior to these being carried out. If a tenant decides to proceed with repairs independently and incurs repair costs, they would need written confirmation that the landlord agrees to reimburse these costs in advance, otherwise they cannot rely on the landlord refunding any of these costs. The landlord would not be obliged to reimburse the resident in view of these costs, however, it was reasonable for it to contribute £440 towards the overall cost despite not being informed of the issue or the resident’s intentions.
24. The resident also raised concern that she would be entitled to a reimbursement of the costs incurred under the Right to Repair scheme as the landlord had not resolved the issue within a specified time period. For a repair to qualify under the legislation, the cost must not exceed £250 and the maximum compensation payable would be £50. In this case, the Right to Repair would not apply as the cost of the works exceeded £250 and the landlord had not been made aware of the repair issue at the time the work was carried out. 

Determination

25. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of repairs to the drainage system at the resident’s property.
26. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to the resident’s request to be reimbursed for the costs she had incurred.

Orders

27. The landlord is ordered to pay the resident £250 compensation in recognition of the time and trouble and distress and inconvenience caused to the resident by its handling of the drainage issues at the property as well as the three failed appointments identified. This is inclusive of its previous offer of £130 if this has not yet been paid.

 Recommendations

28. It is recommended that the landlord takes steps to ensure that any actions agreed within its complaint responses are seen through to completion and evidenced for compliance purposes.