East Midlands Housing Group Limited (202119605)

REPORT

COMPLAINT 202119605

East Midlands Housing Group Limited

28 March 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 handling of the resident’s reports of drainage issues at the property, including the length of time taken to resolve these.
The Ombudsman has also considered the landlord’s complaint handling.

Background and summary of events

Background

The resident and her husband hold a joint assured tenancy with the landlord which began on 11 May 2015. The property is a two-bedroom bungalow. It is managed by the landlord’s ‘enable’ division, which performs a care and support function for tenants with additional needs.
Both the resident and her husband are in their 70s and have medical conditions, known to the landlord, that make them vulnerable.
The tenancy agreement states that the landlord will keep in repair the structure and exterior of the property, including drains and external pipes. It will also keep in repair and proper working order the installations provided for sanitation, including basins, sinks, baths and sanitary conveniences. If the landlord requires a tenant to move out of their home to enable it to complete major building work, it will offer them somewhere else to live and pay reasonable removal expenses.
The landlord’s home loss, disturbance payments and decant policy clarifies that circumstances in which it might require a tenant to vacate their permanent address would include “when major structural repairs, refurbishments or improvements are required to the property, which would pose considerable risk to the wellbeing of the tenant should they remain in occupation”. It also states that residents will be consulted as early as possible about decants; that they will be given clear information and kept informed throughout the decant process, with a single point of contact being provided; and that their needs will be considered when arranging alternative accommodation, having regard to any health or medical conditions.
The landlord’s repairs and maintenance policy states that its property services team will endeavour to keep residents updated and informed about repairs planned for their homes. The policy divides repairs into five categories, with ‘emergency’ repairs to be completed within 24 hours and ‘programmed’ repairs within three months. No target timescale is given for ‘small works’, which are defined as “repairs of a more complex nature which are likely to take more than two hours to complete and/or require the attendance of multiple trades”.
The landlord operates a two-stage internal complaints procedure. At stage one, complaints are responded to by an appropriate manager. Complaints escalated to stage two are discussed by an internal panel, with representation by one or more senior managers in addition to a board member and/or a tenant representative. The landlord’s complaints policy does not state target timescales for responding to complaints.
The landlord’s compensation for service failure policy divides discretionary compensation awards into three ‘bands’, based on the level of impact of an issue on the complainant. It also links to the decant policy, which specifically states that it may be appropriate for the landlord to award discretionary compensation to tenants who have been decanted in circumstances where undue distress has been caused.

Summary of events

In August 2020 the resident reported a “foul smell” coming from the wet room in the property. She told the landlord she had been cleaning the room using bleach and disinfectant but a strong smell remained which affected the whole property. She later said she had noticed drainage smells since she moved to the property in May 2015, which intensified over the years and led her to raise the issue in 2020. A job was raised which was marked as complete the following day, although there is no mention in the repair logs of what action the landlord took.
The resident reported the same issue on four further occasions between October and December 2020, describing a smell “like waste” that was strongest when it rained. She noted that there were no visible internal or external blockages. On 14 December 2020, after the resident had chased the repair and said she would contact the local authority’s public health department if the landlord did not act, the landlord raised a job for renewal of the wet room floor trap and the mixer bar shower attachment. This was marked as complete on 6 January 2021, and a note stated that the landlord’s staff and contractor would attend on 23 and 24 March 2021 to complete the work.
On 15 March 2021 the resident contacted the landlord about the two-day repair that was planned later in the month. She asked what arrangements had been made for her and her husband to use toilet and bathroom facilities while the repairs were being completed. The following day, she contacted the landlord again and said that if she did not receive a response before 20 March 2021, she would like the works to be postponed as she was concerned about not having access to the bathroom.
Internal correspondence by the landlord between 15 and 22 March 2021, seen by this Service, shows that there was some uncertainty as to the extent of the works to be completed. One email stated that the work could be completed in a single day, whereas another stated that it would be a three-day job involving removal of the toilet, wash hand basin, shower and flooring. An email dated 22 March 2021 instructed the relevant staff to proceed with the works on 23 March 2021, as it had been possible to find a void property close to the resident’s property that she and her husband could visit to use the toilet. The works then went ahead.
On 13 May 2021 the resident contacted the landlord by telephone to make a complaint. She said she wanted to know what the landlord was doing to address the smell that came from underneath the property following rain; this had been ongoing for six years and recent rain had caused the smell to recur. She said the cause of the problem was known by the landlord but “no one is taking responsibility”. The resident noted that she and her husband had a number of health conditions which were exacerbated by the issue.
On 24 May 2021 the landlord arranged for its contractor to carry out a survey at the resident’s property. The contractor initially reported having difficulty contacting the resident, with calls going to voicemail on or around 25 May 2021.
On 26 May 2021 the resident spoke to a member of the landlord’s staff in person. She said she had heard something about staying in a hotel, and was not happy about it. The landlord’s subsequent internal correspondence indicates that it had not yet had a detailed discussion with the resident about decanting, but that it had advised her there was a possibility she would have to move out of the property temporarily when works commenced. This would be confirmed with the contractor once it had attended and reported back regarding the scope of the works.
On 4 June 2021 the landlord issued its stage one complaint response, stating that:
1. The resident had complained about a smell coming from underneath her bungalow following rain, which had been ongoing for six years. The resident believed the cause of the problem was known but the landlord was not taking responsibility.
2. It understood the outcomes sought by the resident were for the drainage problem to be sorted permanently, and for bathing and toilet facilities to be considered when the works were completed.
3. It had previously arranged for a survey to be completed by its contractor, who advised that the drain needed to be excavated and realigned.
4. It had then arranged for a second contractor to carry out a further survey. This contactor would contact the resident to arrange an appointment.
5. Following this survey, it would make arrangements to carry out works to rectify the drainage problem.
6. While the works were being carried out, it expected that the resident would need to move out of the property temporarily. It was aware that the resident would require suitable bathing and toilet facilities.
7. It had spoken to relevant staff in relation to identifying and carrying out works to the drains in a timely manner.
8. It apologised that the problems reported by the resident had remained unresolved for a considerable period of time.
9. If the resident was dissatisfied with the outcome, she could reply within 28 days explaining why and the outcome sought.
On the same day, the landlord’s records refer to a call from the resident’s husband who was unsure what “bathing facilities and toilet to be considered” meant. The landlord explained that this was in relation to the possible decant.
On 9 June 2021 a CCTV survey was completed at the property by the landlord’s contractor. The contractor supplied a report to the landlord, but did not provide a quote as it was unable to complete the necessary excavation works itself.
On 11 June 2021 the landlord’s records stated that the contractor had found standing water in the pipe. There were also some deposits stuck to the inside of the pipe which were closing the pipe’s diameter. The contractor who had produced the report was unable to complete the works as the pipe was underneath the property, and the repairs would involve taking the floors up. The contractor recommended that the works should be completed by a specialist with experience of the particular issue. The landlord contacted a different contractor about the repair on 21 June 2021.
On 30 June 2021 the landlord was contacted by the local authority’s environmental health department, who had been contacted by the resident. The environmental health officer said that the resident and her husband, both of whom were elderly and in poor health, had been told they would need to move out of their property, but the last communication from the landlord’s surveyor was three weeks ago. They felt the landlord kept promising the matter would be resolved but then all communication would stop. This was causing them great distress in addition to the continued smell of sewage in their property.
On 6 July 2021, following some delays, the landlord and its contractor visited the property to assess the drainage issues. The contractor later provided a quote for recommended works on 12 July 2021, noting that “this is the easier, less disruptive option for the tenants”.
On 13 July 2021 the resident again spoke to a member of the landlord’s staff in person and said she was “very unhappy”. The member of staff requested an update as soon as possible. The resident made further requests to the landlord for an update on 22 and 27 July 2021.
On 28 July 2021 the landlord met its contractor at the property to carry out an inspection and agree works to be carried out. Following this, on 30 July 2021, the resident’s husband informed the landlord that he and the resident were “very disappointed at how [the meeting] took place and the outcome”. The resident asked how she could make a complaint. The landlord logged a complaint by the resident on 4 August 2021, only to later note that a formal complaint had already been logged and a response provided. The landlord’s record of the resident’s request stated that:
1. The resident felt very let down by the landlord and “the communication has not been great”.
2. The resident had previously been told that the works to the drainage system would be a big job, but the landlord was now saying that only a pipe on the toilet needed fixing.
3. The resident had seen footage from cameras used by the landlord’s contractors, and believed the proposed works would not resolve the issue as the pipes beneath the property were not laid correctly and were unable to drain water away, leaving stagnant water near the toilet and shower.
On the same day, an internal email by the landlord noted that the resident had originally been informed that the repair works would be extensive, but it was satisfied that its contractor was competent and had found a non-intrusive solution. The resident would not allow the works described by the contractor to go ahead, but the landlord would not carry out unnecessary and costly repairs in circumstances where a simpler, more cost effective repair could be completed.
On 19 August 2021 the landlord contacted the resident. Its record of this conversation stated that:
1. The resident felt the landlord had not considered what she had been through over the past five years, or recognised the stress caused to her.
2. She had had people laugh at her for continually complaining about the smell.
3. When her wet room was installed in a previous attempt to resolve the sewage issue, the landlord did not consider where she and her husband were going to wash. She had to beg to use facilities in another bungalow. When she was able to use the facilities in her own property, initially she had to turn the water on each time she used the toilet. A leak also meant that she did not have hot water and had to go to her son’s.
4. On one occasion the smell was so bad that she had to move out of the property for two days, at her own expense.
5. She had had to go round looking at different houses and places to stay while the work was being undertaken. Her husband was not well and had been in hospital that morning, and this was causing them both additional stress.
6. She felt the property was dirty and she could not live in it as it was.
7. She wanted either a permanent move or compensation towards the cost of new carpets and decoration, as she felt the current ones were contaminated.
Following its conversation with the resident, the landlord escalated the resident’s complaint to stage two of its complaints process.
On 20 August 2021 the resident reported a leak from her shower pipe causing flooding. This was classed as an emergency repair by the landlord who attended the same day. Attempts to unblock the pipe resulted in sewage backing up into the wet room and hallway. The landlord’s contractor was unable to fix the problem immediately, and a camera belonging to the contractor also became lodged in the pipe.
Due to the property being uninhabitable, the landlord offered the resident and her husband hotel accommodation. However, by the time the details were confirmed, the resident felt it was too late to go to the hotel as she had to make arrangements for her dog before leaving. She and her husband therefore stayed with relatives on the night of 20 August 2021, and went to the hotel arranged by the landlord on 21 August 2021. On arrival, the hotel could not locate the booking, and so the resident and her husband went to a different hotel which they paid for themselves until 26 August 2021.
The landlord then paid for the resident and her husband to stay in another local hotel between 27 August 2021 and 17 September 2021, except for the period from 3 to 10 September 2021 when they were away on a pre-booked holiday. During this time repairs were completed at the property. The resident and her husband returned home on 17 September 2021.
On 14, 18 and 22 October 2021 the resident contacted the landlord to say that she was upset she had not yet been reimbursed for the money she spent on hotel and food costs during the decant. She said the costs were paid by credit card and interest charges were now building up. On 27 October 2021 the landlord made a payment of £1,084.28 to the resident.
On 16 November 2021 a panel meeting took place to discuss the resident’s stage two complaint. This was attended by the resident, with notification of the meeting having been given on 15 October 2021 and papers circulated on 9 November 2021.
On 23 November 2021 the landlord issued its stage two response, stating that:
1. It was aware the resident had experienced drainage smells since moving into the property in May 2015, which intensified over the years and resulted in the issue being raised in 2020.
2. Since then, the landlord had carried out several drain surveys and conducted various works, guided by its contractors, to try to resolve the issues.
3. The case had not proved straightforward to resolve, with a trial and error approach being adopted to track down the root cause of the problem. This resulted in the unfortunate incident of the drains backing up into the shower room in August 2021.
4. Following this incident, a new scope of works was established which involved the excavation and laying of a new drain, new flooring and fitting of aqua boarding to the shower room. The works were completed in September 2021, enabling the resident to return home after being decanted for a few weeks.
5. It thanked the resident for confirming that since the works were completed, no similar problems had occurred and she was satisfied with the repairs carried out.
6. It accepted that the matter had taken longer than the resident would reasonably expect to resolve, and had caused her undue inconvenience and upset. In recognition of this, it offered an “ex gratia payment” of £1,140.26. This took account of the four-day amenity loss and three weeks’ rent payments while the resident was in hotel accommodation.
7. It had also reimbursed the resident’s out-of-pocket expenses while in hotel accommodation.
8. It again apologised for the “very apparent upset caused”.
On 25 November 2021 the resident informed the landlord that she was not happy with the amount of compensation offered in its stage two response. She said she had requested a payment of £1,000 in addition to the rent payment of £340.26.
On 1 December 2021 the landlord increased its offer of compensation to £1,340.26 in line with the resident’s request.
While this investigation will focus on the events detailed above, the resident’s recent update that her wet room floor turned black following the repair and had to be replaced for a third time is acknowledged.

Assessment and findings

The landlord’s handling of the resident’s reports of drainage issues at the property

Between August 2020 and March 2021, the landlord delayed in carrying out appropriate investigation and works to rectify the drainage issue reported by the resident. This was despite receiving at least five reports from the resident during this time. Her growing desperation was apparent from the fact that she said she would contact the local public health department if the landlord did not take action. The length of this initial delay was unsatisfactory and had the effect of prolonging the impact of the issue on the resident. The landlord also missed an opportunity to reassure the resident that it was listening to her and taking her concerns seriously.
The works that were completed in March 2021 were booked in more than two months earlier. The landlord’s repairs policy does not give target timescales for ‘small works’, into which category this repair would fall. While this lead time does not seem excessive for a two-day repair, the landlord did not keep the resident adequately informed about what the repair would involve and how it would affect her and her husband; indeed, it seemed unclear itself as to what work would be completed. It also failed to respond to the resident’s understandable concerns about access to bathroom facilities during the repair. The landlord’s eventual solution – for the resident and her husband to use the toilet in a nearby void property – was unacceptable and did not take account of the resident’s age and vulnerability. Had the landlord kept the resident updated and informed about repairs planned for her home, as it undertook to do in its repairs policy, the resident would have been able to explain her concerns at an earlier stage, enabling the landlord to understand why its solution was inappropriate.
In June and July 2021 the landlord employed two contractors to carry out surveys at the property and recommend works. The landlord was obliged to employ a second contractor as the first was unable to complete the works it recommended. The second contractor recommended a different solution to the first, which would be less intrusive for the resident. While there were some delays in arranging the surveys, and the second survey took place following contact by the local authority’s environmental health department, it is accepted that the landlord was put in a difficult position with two contractors recommending different courses of action. It was also reasonable for the landlord to prefer a solution that would reduce disruption to the resident, avoid a decant, and cost less. While the resident had some concerns about the proposed works, it is positive that the landlord consulted her, and it was reasonable for the landlord to follow the recommendation of its qualified contractor.
The landlord correctly identified the resident’s report of a leak on 20 August 2021 as an emergency repair, and attended within its target timescale of 24 hours. It could not have foreseen that its efforts to unblock the pipe would result in sewage backing up into the property. In these circumstances, it was appropriate for the landlord to decant the resident into hotel accommodation that met her needs; it was the resident’s decision not to go to the hotel until the following day when she had made arrangements for her dog.
This Service has seen evidence that the landlord made a hotel booking for the resident between 21 and 23 August 2021, and it is unfortunate that the booking could not be found by the hotel when the resident arrived. It was again appropriate, since the resident was unable to contact the landlord at the time, for the landlord to reimburse the resident for the out-of-pocket costs she incurred in booking her own hotel and paying for meals while staying there. Evidence seen by this Service indicates that there were excessive administrative delays in reimbursing the resident, which resulted in her chasing the payment three times and incurring interest charges on her credit card. In the interests of restoring the resident to the position she would have been in but for the delay, it would have been good practice for the landlord to offer to reimburse these charges too.
In the Ombudsman’s opinion, the landlord recognised the high level of distress caused to the resident by the drainage problem, its delays in completing effective repairs, and issues during the decant process. It thanked the resident for her assistance and sincerely apologised for its shortcomings, for which it took responsibility. It also offered an “ex gratia payment” of £1,140.26, which reflected the resident’s loss of amenities, rent during the decant period, and the “undue inconvenience and upset” she experienced as a result of the delays. The amount offered was in line with the highest banding set out in the landlord’s compensation policy. The Ombudsman considers that the level of compensation was proportionate in the circumstances, taking account of the distress and uncertainty the resident experienced.
The resident escalated her complaint to this Service on the same day she received the landlord’s stage two response, on the grounds that she was unhappy with the level of compensation offered and that she felt the landlord had not listened to her or taken her concerns seriously. Two days later, she informed the landlord that she was dissatisfied with the amount of compensation as she had asked for an additional £200. The landlord promptly responded by increasing its offer to the requested amount of £1,340.26.
It is the Ombudsman’s view that, while there were significant failings by the landlord throughout its handling of the drainage issue at the property, it acknowledged these in its stage two response and offered reasonable redress by way of compensation. The stage two response also evidences that the landlord had listened to the resident, whose vulnerability it was mindful of, and had taken her concerns seriously.

The landlord’s complaint handling

The landlord responded to the resident’s stage one complaint after 16 working days. The landlord’s complaints policy does not set out timeframes for complaint responses, but the Ombudsman’s complaint handling code states that stage one complaints should be acknowledged within five working days and responded to within ten working days. The landlord had frequent contact with the resident between the date of her complaint and the date of its stage one response, but it did not acknowledge the complaint in writing. It also did not respond adequately to concerns raised by the resident about a possible decant during this time.
The landlord’s stage one response demonstrated an understanding of the resident’s concerns and provided an appropriate level of information regarding its plan of action to address the drainage issue. It also clarified that it expected the resident would need to move out of the property temporarily while repairs were carried out, and gave reassurance that it was aware of the resident’s requirements regarding bathing and toilet facilities. The landlord rightly apologised for the “considerable period of time” for which the problems reported by the resident had remained unresolved.
The resident expressed further dissatisfaction with the landlord’s handling of the drainage issue on three occasions in July and August 2021. These communications were recorded by the landlord, but it did not immediately identify that the resident had already raised a complaint about the issue, and it was not until the third expression of dissatisfaction on 19 August 2021 that the landlord escalated her complaint to stage two of its complaints process.
The landlord followed its policy by convening a panel meeting to discuss the resident’s stage two complaint in November 2021. The resident was given more than a month’s notice of this meeting, and attended. While no minutes or other record of the meeting has been seen by this Service, the landlord went on to issue its written stage two response the following week.
It is accepted that the incident on 20 August 2021 and subsequent events may have delayed the landlord’s stage two response; however, the Ombudsman’s complaint handling code states that complaint responses should be provided when the answer to the problem is known, not when outstanding actions required to address the issue are completed. Although the Ombudsman appreciates that the landlord may not have had the ‘answer’ to the drainage problem until the repairs were completed, it should have been in a position to respond in September 2021, and a delay of two further months was excessive. Combined with earlier delays, this undermined the resident’s trust in the landlord and made her feel ignored.
The stage two response provided a clear and accurate summary of the drainage issue and the landlord’s actions to address this. It also incorporated concerns raised by the resident since the time of its stage one response, which was helpful in providing an overview of the situation. While the level of compensation offered with regard to the repairs was appropriate, as discussed above, no award was made in recognition of the landlord’s complaint handling failures. The landlord did not identify these shortcomings or the resulting impact on the resident, who did not know what was happening with her complaint and invested time and trouble in chasing responses and updates. The Ombudsman has therefore made an order for additional compensation.

Determination (decision)

In accordance with paragraph 53(b) of the Scheme, there was reasonable redress by the landlord in its handling of the resident’s reports of drainage issues at the property, including the length of time taken to resolve these.
In accordance with paragraph 52 of the Scheme, there was service failure by the landlord in its complaint handling.

Reasons

There were a series of failures by the landlord in its response to the drainage issue at the property, including delays in carrying out the necessary investigation and repairs and poor communication with the resident in relation to the repairs and decant process. Had the landlord not acknowledged these failures and offered an appropriate level of redress, in the form of an apology and substantial compensation, a finding of maladministration would have been made. The amount of compensation offered was in accordance with the resident’s wishes and reflected the various ways she had been affected by the drainage issue.
The landlord’s complaint handling fell short of the standard expected by the Ombudsman. It did not acknowledge the resident’s complaint at stage one, missed two opportunities to escalate the complaint to stage two, and delayed in issuing its stage two response for two months. While the stage two response was detailed, informative, sympathetic, and recognised the impact of the drainage issue on the resident, the landlord did not identify or offer compensation for its complaint handling failures. The orders and recommendations below are intended to help rebuild the landlord-tenant relationship.

Orders and recommendations

Orders

The landlord is ordered to do the following within four weeks of the date of this report:
1. Reiterate its apology to the resident and send her a bouquet of flowers.
2. Pay the resident £100 for its complaint handling service failure.
3. Provide evidence of compliance with the above to this Service.
The landlord is ordered to complete a self-assessment against the Ombudsman’s complaint handling code within 12 weeks of the date of this report.

Recommendations

It is recommended that the landlord reimburses the resident for any interest charges she incurred while costs relating to hotel accommodation and food remained on her credit card between August and October 2021, subject to evidence of these being provided by the resident.
It is recommended that the landlord reviews its policies relating to repairs and complaints, with a view to introducing clear target timeframes for all repairs and complaint responses.