Gateshead Metropolitan Borough Council (202116999)

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REPORT

COMPLAINT 202116999

Gateshead Metropolitan Borough Council

17 August 2023

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 is about the landlord’s response to the resident’s:
1. Reports of a leak, damage to the property and subsequent request for a decant.
2. Related complaint.

Background

The resident was a tenant of a one-bedroom flat belonging to the landlord, a local authority, from February to December 2021, under an introductory tenancy. The landlord has recorded that the resident has a mental health vulnerability. The reasons for the resident moving in and out of the property were recorded as domestic violence.
It is not known what date the first complaint was made by the resident. The repair log shows that 22 repairs were logged for the address between 13 March 2021 and the first complaint response on 22 November 2021. Of these, two were in respect of a broken boiler and five included damage to the floor/ceiling of rooms below, due to an ongoing leak. The rest related to a leak from the toilet, often described as ‘uncontrollable’. The majority of the leak repairs were recorded as ‘emergency’ or ‘out of hours’ and usually as ‘practically complete’ on the same day. The landlord required a part to fix the leak permanently. The resident said the leak was not fixed prior to her moving out of the property, 9 months after the landlord’s records indicate a leak being reported on 13 March 2021.
The first complaint response said there had been 13 visits for leaks or blockages up to 29 July 2021, when the specialist part was fitted. The landlord recorded several attempts to contact the resident before cancelling an inspection to upgrade the soil pipe. The landlord offered £309.94 compensation for unusable rooms and £150 for distress and inconvenience. The resident replied on 22 November 2021 that the issue affected the whole house, not just one room. She required far higher compensation and the repair to be finished.
The landlord’s final response in January 2022 noted that the insurance claim for damaged possessions was rejected and said it could not reimburse some of the resident’s costs for hotels and cabs without receipts. It increased the compensation to a total of £877.94 to include the delay in the complaint process and the costs of two nights in a hotel.
The resident feels the compensation paid was insufficient due to the expenses incurred and the levels of stress experienced. The resident feels neglected and discriminated against due to her mental health problems and learning difficulties, including difficulties communicating.

Assessment and findings

Scope of investigation

The resident has stated that the repair work has affected her mental and physical health. The Ombudsman does not doubt her comments; but it is beyond the expertise of this service to determine if there was a direct link between the landlord’s actions or lack of actions and her health. Ultimately this would be a matter for the courts and the resident may wish to seek independent advice on making a personal injury claim.
The resident says that her possessions were damaged by the leak, and it is noted that the landlord’s insurers considered her claim and declined it. Whilst this is not an issue for the Ombudsman, where a resident is dissatisfied with the decision of an insurer it may still be appropriate for the landlord to investigate in order to establish if there has been any service failure (as opposed to negligence). It may then decide compensation is appropriate in accordance with its complaints and compensation procedures.
The resident has said she experienced discrimination from the landlord. Whilst the issue was included in an email to the resident’s local Councillors which appears to have been sent in November 2021 there is no evidence that the resident raised this issue with the landlord as part of the formal complaint. Paragraph 42 (a) of the Housing Ombudsman Scheme says that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, are made prior to having exhausted a landlord’s complaints procedure. This issue has therefore not been considered as part of this investigation.
However, it is recognised this is a serious allegation. It may help to explain the Ombudsman cannot make findings under the Equalities Act (2010) or otherwise. Ultimately this would be a matter for the courts and the resident may wish to contact Citizen’s Advice to obtain advice about her allegations of discrimination.

Assessment

Leak

The resident’s Introductory Tenancy agreement for the property effective February 2021 says at section 4.3 that the tenant has the right to have certain repairs completed on time. Section 5 covers the landlord’s responsibilities and 5.5 says the landlord will arrange to repair and keep in proper working order any installations within the resident’s home including for sanitation. This includes toilets, flushing systems and waste pipes.
The landlord’s Home Repairs Policy 2017/18 says residents should expect landlords to “efficiently manage the repairs and maintenance obligations for …customers”. ‘Help you identify the repair needed’ and “tell you the maximum time we will take to complete the repair”.
The “out of hours repairs” section says that “where the operatives make safe, a return visit will be required to finish the repair”. This will be arranged depending on the urgency of the repair but at the earliest opportunity. It says that in some cases, parts or materials may be required which may delay the repair. Emergency repairs include” toilet blocked – unusable and no alternative”. Repair categories and timescales says emergency same day repairs – attend and make safe within 6 hours, if possible complete the repair. Emergency repair – attend and make safe within 24 working hours. Urgent repair – timescale 3 working days. The policy also states that a level of additional priority may be offered to its more vulnerable customers including those who have a recognised disability.
The landlord’s Tenancy Management Policy section 6.1 ‘reason for decants’ includes ‘major repairs or improvement that cannot be conducted with the resident in occupation’ or ‘emergency (for example fire, flood) rendering the property uninhabitable’. Section 7.2 concerning vulnerable residents says ‘Many of our residents may be vulnerable. This may vary from someone with learning difficulties to someone with issues around mental health, or from someone with a visual impairment to someone who is bed bound. We work with all our vulnerable residents and their advocates, supporters, family members and health agencies to ensure they are able to live happily in their homes, and when and if they need to move on to alternative accommodation, we will work with other departments including social care to make the transition as smooth as possible.’
In this instance, there is no dispute that the landlord was responsible for the repair, that it was an emergency as there was a blocked/unusable toilet with no alternative, and that the resident was vulnerable.
The initial report of a leak was 13 March 2021 and there were 13 visits before a specialist part was fitted on 29 July 2021. This was an unreasonably long period for the resident to live with a constantly failing toilet. Whilst it is appreciated that a particular part was not available from the supplier, once it was clear that the problem was reoccurring and the part not available, the landlord could reasonably have taken alternative action to resolve the issue. There is no evidence that the landlord considered replacing the entire toilet unit or sourcing the part elsewhere.
The landlord has since confirmed that the leak was caused by upgrades required to the soil stack. It said that, due to being unable to attend for an inspection, it could not complete the full repair which was then carried out when the property was void after the resident vacated. The repair log for the property shows that the toilet was leaking again within a few months of the resident vacating the property.
The landlord’s complaint response of 22 November 2021 said specialist parts were fitted on 29 July 2021, but further work was required to upgrade the soil stack to rectify the issue with the toilet blocking and leaking. The repair log shows that several attempts were made to contact the resident to arrange an inspection in the week of the complaint response, from 18 November 2021 to 25 November 2021. The resident emailed on 23 November 2021 to say that each time she got a call from repairs it cut off and she was unable to get them back.
Although there are numerous entries on the repair log, there are no records of the landlord trying to contact the resident to arrange this further work to the soil stack after the first complaint response. The landlord recorded that no contact could be made by phone, it did not explain why it did not email instead. The landlord did not make proactive attempts to contact the resident as per the provisions of its Home Repairs policy. It would have been reasonable for the landlord to actively try to gain access in order to resolve the issues, given they were related to the toilet and as such raised health and safety concerns.
Although there is no record of any further leaks being reported after the specialist part was fitted on 29 July 2021, the resident said she was unable to use the living room due to the spread of the leak and sewage. She was unable to have visitors, including her daughter, due to the smell and conditions up until October 2021. She has described being scared to use the toilet in case the problem occurred again.
There is no record of any inspection relating to damage caused by the leak. There are several entries on the landlord repair log of reports from the resident of floorboards rotting and damage to the ceiling beginning on 7 April 2021. The resident said she was scared to walk from the hallway to the bathroom as it felt like the floor was “giving way”. Again, there is no report as to the extent of the damage, but the repair log shows the floorboards on the landing being replaced on 10 May 2021, which suggests the problem was not insignificant. If sewage leaked from the bathroom to the hallway, this would clearly be distressing for the resident.
Overall, the delay from March to July 2021 to fit the part, and the delay from that part being fitted and an inspection of the soil stack being arranged in November 2021 was too long. The landlord has not shown it took reasonable steps to meet its own timescales for repair. It has not shown it took any particular steps to contact the resident when it was aware of her vulnerability. There is no evidence of any inspection to ascertain the damage caused by the leak. There is no evidence that any ownership was taken of the repair given the number of visits to the address, the vulnerability of the resident and that the one toilet at the address was out of action for many months, with damage reported for several months after that.
In its complaint responses the landlord apologised for the time taken to resolve the issues and offered compensation.
When there are failures identified by the landlord the Ombudsman will consider whether the redress offered by the landlord resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes as well as our own guidance on remedies.
The landlord acted fairly by apologising for the time taken to resolve the complaint.
The landlord’s first formal response offered compensation of £309.94 for the ‘loss of amenity’ as the toilet was unusable (the first response says the toilet was first reported on 13 March 2021 and repaired 29 July 2021) plus £150 for distress and inconvenience. In the final response it offered £118 for two nights in a hotel, and £150 for the delay in the repair.
As the loss of use of the bathroom and hotel costs were reimbursements, this means that the landlord offered £300 compensation for its failure to meet its own timescales, at a stressful time (lockdown, resident fleeing domestic violence and pregnant) for a vulnerable resident with mental health issues and in receipt of PIP.
The landlord was unwilling to refund additional costs incurred by the resident in respect of hotels and cabs as it said it was not able to do this without receipts, in accordance with audit requirements. It was appropriate for the landlord to request evidence to support the resident’s additional outgoings.
However, it would have been reasonable for the landlord to consider the inconvenience caused by the only toilet not working in the property. The resident was left with no other option but to look for alternative accommodation when the issues were reoccurring. The resident has explained that she did not request receipts as she did not want physical contact during the Covid lockdown and had paid for hotels on arrival.
The landlord should have taken into consideration the inconvenience caused with each of more than 12 reports concerning the leaks and that the impact on the resident would be greater because of her vulnerabilities. This was not addressed in the landlord’s final response.
Therefore, the compensation offered by the landlord was not proportionate to the distress and inconvenience incurred by the resident and did not put things right.
The landlord’s complaint responses did not contain any details of lessons that it had learnt from the outcome to the complaint.
In respect of the resident’s request for a decant, the landlord has explained that it had no record of the correspondence related to those issues due to staff changes. However, it is noted on the repair log on 15 July 2021, that the resident said she did not wish to remain at the property. Her Housing Officer and Support Worker raised queries the same day and were directed to housing management although the outcome of this is not known. Following further emergency call outs the resident said on 22 July 2021 that the property was not liveable. The resident’s Support Worker sent an email the same day which explained the resident was a care leaver and pregnant and had said she wanted to be rehoused while the repair took place. She said the resident was unable to use the toilet and the whole flat smelled of waste. There are emergency call outs for the leaking toilet the day before and the day after this email recording that the toilet was unusable and there was no alternative.
The resident’s escalation email of 22 November 2021 says at point 8 that the landlord had ignored her many requests for emergency accommodation when she couldn’t use her bathroom or walk about the property due to the faeces. This point was not included in the landlord’s final response.
It is not the Ombudsman’s role to decide if an emergency decant was required by the resident, rather it is to consider if the landlord responded appropriately to the resident’s request and acted within its policies. The evidence is that there was a reoccurring blockage and a leak in the resident’s toilet, and that she was vulnerable. In these circumstances, it would have been reasonable for the landlord to consider the request for an emergency decant. The landlord has not demonstrated that it had considered the resident’s request for a decant in line with its policy.
It is reasonable in all the circumstances that an additional £400 be paid to the resident to reflect the distress and inconvenience caused by the landlord’s failings in resolving the leak from her toilet and subsequent damage to the property and its failure to act in accordance with its decant policy. This is further to the £300 already paid by the landlord in respect of the repair delays (over and above the reimbursement for loss of room and hotel stays), this would make a total award of £700 in relation to the repair.
This sum is in the range recommended for cases where the Ombudsman has found maladministration which had a significant impact on the resident. It should be noted that this compensation does not amount to a refund or suggest liability for damages but is made in line with our remedy guidance.

Complaint handling

Until May 2023, the landlord says its complaints policy had three stages, although it now has two. At the time of the resident’s complaint, the first stage was an informal stage to resolve the matter locally. The second and third were more formal complaint stages, to be responded to within 20 working days.
The landlord’s April 2023 self-assessment report which details adherence to the Housing Ombudsman’s Code says at section 4.15 that a full record is kept of the complaint, any review and the outcomes at each stage. This includes the original complaint and the date received, and all correspondence with the resident. The report says that this information is recorded on its housing database.
The landlord has said that the member of staff dealing with the resident’s complaint left the landlord’s employment and it was unable to access his emails. It is not known what date the resident’s initial complaint was made, and the request for escalation dated 10 December 2021 has not been provided. It is noted that the landlord now records all complaints on its housing database, but it is not clear what the process was in 2021. Ultimately, there is no record of the resident’s complaints correspondence, so it is not possible for the Ombudsman to know if all issues raised initially were responded to, and in what time frame. The resident has said that the landlord did not consider half of her complaint, and she was unhappy with the complaint handling.
In its final response, the landlord said that the resident escalated her complaint on 10 December 2021, but this correspondence has not been provided. The resident asked for her complaint to be escalated on the same day as the first written response, on 22 November 2021. The final response was due within 20 working days, by 20 December 2021, but was not issued until 27 January 2022. The landlord offered £150 in the final response for ‘the delay in the review complaint being concluded’.
The landlord said that the resident’s feedback regarding feeling ignored when she asked for emergency accommodation had been passed to the customer services teams and investigated thoroughly. The landlord did not explain what the outcome of that investigation was, only that it was not its policy to share the outcome of complaints against individuals. Whilst this may be the case, the landlord still failed to address the issues raised by the resident.
Although no complaints policy has been provided by the landlord to cover the period of the complaint, it would be good practice for the landlord to have proper records to include the initial complaint from the resident. The first response on 22 November 2021 does not quote the date of the complaint and fails to list the resident’s concerns in any detail. The final response on 27 January 2022 quoted the wrong date of escalation, so was provided later than it acknowledged.
It is noted that the landlord has now published its response to the Complaint Handling Code, but in the handling of the resident’s complaint it has not shown adequate care and management of data. It was not appropriate for a single member of staff to have records and emails relating to the complaint which were inaccessible to other landlord staff. This has resulted in a gap in the information available to this investigation. It is not now possible to know if the landlord responded as it should to the resident’s concerns in its first written response.
In her request to escalate the complaint, on 22 November 2021, the resident listed 12 reasons why she felt the compensation should be increased:
1. The time the repairs took.
2. Lack of customer service.
3. Attempts to make a complaint.
4. The conditions the resident lived in.
5. Loss of bathroom and other rooms due to sewage.
6. Unable to have visitors to house.
7. Service failures re delays and inconvenience caused.
8. Ignoring requests for emergency accommodation.
9. Effect on resident’s health.
10. Missed/rescheduled appointments.
11. Accommodation costs.
12. Partner having to unblock toilet and falling.
The response of 27 January 2022 failed to reference the points in that email and gave a ‘broad brush’ response to the complaint. The responses apologised to the resident and said that the landlord welcomed feedback, but the landlord has not shown that it has looked to put the resident into the position she would have been had the leak been fixed promptly. This should have been part of the landlord’s complaint investigation process.
The landlord did not show that it had considered the resident’s vulnerability in the complaint process, either in terms of her recorded mental health issues or that she was fleeing domestic violence and was pregnant during this time. It took a harsh line around the resident proving outgoings relating to hotels and taxis, given that the events occurred during a national lockdown.
The landlord has already paid £150 in relation to the delay in the complaint being concluded. It would be fair in all the circumstances of the case if this were increased by a further £100, to make a total of £250 in respect of the overall complaint handling. This would fall under the Ombudsman’s range of awards for instances of maladministration resulting in no permanent impact on the on the resident.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of:
1. The landlord’s handling of the repair.
2. The landlord’s response to the resident’s complaint.

Orders

Within four weeks of the date of this determination, the landlord should pay the resident a total of £1377.94 compensation made up as follows:
1. £877.94 previously offered during the complaint process, if not paid already.
2. An additional £400 in recognition of its failures in handing of the reported repairs.
3. An additional £100 compensation in respect of its handling of the resident’s complaint.
The landlord should provide evidence to this Service that the above orders have been complied with, within four weeks of this determination.

Recommendations

It is recommended that the landlord consider the way complaint emails are managed so to ensure that they are not lost in an individual member of staff’s email, as happened here.