Lambeth Council (202013698)

REPORT

COMPLAINT 202013698

Lambeth Council

11 February 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 response to the resident’s reports of drainage issues.
   2. the landlord’s response to the resident’s request for a permanent solution in respect of the drainage.
   3. the landlord’s complaint handling.

Background and summary of events

2. The resident occupied a one-bedroom flat on the second floor, under a lease which began 22 December 2003, in a block that comprised 66 flats.

The legal and policy framework

3. Under the lease, the resident was responsible for the repair of all conduits, pipes, cables, fixtures and fittings which serve the flat exclusively. The resident was not responsible for the conduits that served other parts of the block as well. The landlord was obliged to maintain repair, redecorate, renew and, at the landlord’s absolute discretion, improve the structure, gutters, sewers and drains of the building. This obligation was subject to the resident paying service charges to the landlord, that she was obliged to pay for those works.
4. Under the repairs policy, the landlord categorised the repairs as follows:
   1. Responsive property repairs – repairs that were unplanned and occurred within the property.
   2. Communal repairs – repairs that did not relate to a particular property but to the building.
   3. Cyclical works – repairs that were carried out by a contractor on a regular basis. The landlord would undertake all repairs to the outside of the building and common areas and claim back the cost of these repairs through the service charge billing process.
5. The policy also set out five timescales depending on the priority but did not specify how the repairs would be categorised.
6. The complaints procedure was a three-stage process, an informal stage where the response would not be in writing, and a formal first stage with a response time of 20 working days. Should more time be required, it would provide an alternative timescale. There was no response time for the final review stage but the review would be undertaken by a review officer and a senior member of staff. A review would not normally address new issues that were not previously raised at the earlier stage.
7. The landlord would pay compensation in relation to a service failure including unjustified delays, failure to follow the landlord’s policies, rules or procedures or failure to provide a service to a published standard.
8. The landlord would consider the resident’s costs that would not have been necessary but for the service failure that had adversely affected the customer. It would consider such costs on the basis that the complainant reasonably incurred the costs and could demonstrate that the loss occurred. The landlord would consider any anxiety, frustration, worry, uncertainty caused to the complainant as a direct result of the failure. The investigating officer should only consider the complainant’s time and trouble in pursuing the complaint beyond the minor costs routinely incurred when making a complaint, it would award £50 to £250 depending on the extent of inconvenience the complainant had been put to in achieving a resolution.

Chronology

9. According to an insurance report by a property claims management company, there was an escape of water on 20 December 2018. There were no works orders issued for drainage works at that time. According to the landlord, works were carried out at a later date. The landlord raised an order for a plumber to attend the resident’s property who identified the sink waste required renewing, which the landlord deemed to be the resident’s responsibility. Repair works were agreed to the resident’s bathroom and kitchen.
10. The landlord received a report on 17 December 2019 of a back surge at the property. On the same day, a job was raised to include a CCTV survey, repairs to kitchen wall, floor and tall unit, carry out repairs or renew components, as appropriate. The landlord’s contractor attended on 31 December 2019.
11. On 2 January 2020, the landlord instructed its drainage team to attend on a back surge underneath the sink following a report of an uncontainable leak from a wastewater pipe. The CCTV survey was undertaken on the same day. The CCTV survey was carried out because there had been repeated blockages.
12. The CCTV survey identified a build-up of scale which could have been a contributing factor to the blockages. It recommended a descale using specialist equipment and cutting a section of the stack. According to the landlord, the recommended works were completed the following day and the summary of the works appeared to have been signed, also on the same day, by the resident indicating that the works were completed.
13. According to the repair logs for the block, there were reports in 2018 and 2020 relating to other properties in the block of blocked drains, a back surge through a kitchen sink. The landlord raised a number of responsive repairs in response to those other properties, including clearing blockages with a pressure jet. No like report was provided regarding 2019.
14. According to the resident, she had made a complaint about the drainage leaks in November 2020 and on 7 January 2021.  The landlord did not respond, although the resident received automated responses.
15. The resident has informed this service that she had complained that she had intermittently back surging from a waste stack pipe into her home over several years. The most recent incident was January 2020. The resident was aware that some of the pipe had been cut away and had been reassured that this would mean that back surges would not happen very often going forward. The resident had been told that they could still happen occasionally and that when they did, the landlord would attend as and when it happens, so they had not offered a permanent resolution. The resident wanted a timetable for a regular programming of stack jetting so the problem did not occur. The landlord had stated that they had advised all residents not to put items into the stack. The resident wanted evidence that the landlord was taking action to enforce this.
16. On 8 March 2021, this service wrote to the landlord asking it to respond to the resident’s complaint, as follows:
    1. The complaint was about the landlord’s response to the resident’s request that a permanent repair and a planned programme of stack jetting was carried out in order to avoid waste surging into the resident’s flat when the stack pipe becomes blocked.
    2. The resident also wanted the landlord to take action against residents who put items not designed for the waste, into the waste, in order to discourage behaviour that was likely to cause blockages.
17. The landlord responded to the resident on 8 April 2021 as follows:
    1. Its records confirmed that a number of repairs had been raised and completed in recent months to clear blocked drains, including excavation to reach blocked pipes for jet washing. In light of concerns suggesting some residents might be intentionally causing blockages, this matter was being investigated. Actions taken could include correspondence being issued to all residents reminding them of their responsibilities and to be more mindful on the disposal of items that could cause drain blockages. It invited the resident to make specific reports.
    2. The landlord would continue to manage reports of blocked drainage, or any other repair needs, in a responsive manner when reported but its repair team did not carry out planned or programmed works.
    3. It “partially” upheld the resident’s complaint in the light of inconvenience experienced during the drainage repairs. It also apologised for its previous lack of responses to “any” previous concerns raised on this matter.
18. On 20 April 2021, the resident wrote to the landlord and asked for a timeframe for the investigation into resident behaviour. She asked what were the items that caused the blockage. She wanted to know how the landlord would address her costs associated with her contents damage (not covered by her home insurance policy), and her inconvenience in relation to enjoying her home and to provide a long-term resolution to this matter and her financial losses associated with time off work to deal with the back surge issues.
19. On 22 June 2021, the landlord considered the resident’s request for a planned/ regular maintenance of the drains servicing her property and/or a valve to be fitted to prevent back surge into her property reoccurring. According to the landlord’s internal emails, it had one drainage engineer, who was at the time clearing up a huge backlog and then would be moved to emergencies. There was no capacity for the work even if it hired additional engineers.
20. The landlord escalated the resident’s complaint on 9 July 2021.
21. On 19 July 2021, the resident wrote to the landlord that a significant number of her possessions were contaminated and/or damaged, as a result of the two most recent floods which occurred in December 2018 and January 2020. These included footwear, laptops, medicinal and supplementary herbs and remedies, a colour printer, clothes, and kitchen appliances. She attached some photographic examples. She also incurred costs including laundry, inventory and loss of income. The damage to the building as a result of fire brigade forcing entry to her home was being dealt with through the building insurance but the costs of her possessions were not covered. Given the frequency of the drainpipe becoming blocked and the temporary nature of the repair carried out in January 2020, she wanted a permanent solution to this problem to be implemented. She reiterated her questions from her email of 20 April 2021. She suggested replacing the pipes temporary fixture with a permanent remedy (such as a non-return valve) to better ensure the issue did not happen again.
22. On 11 August 2021, the landlord wrote with its second stage response. It said that the repairs to date had been managed in accordance with the job timescales. On 1 March 2021, its drainage subcontractors reported works it had carried out in a retail unit, presumed to be on the ground floor of the block, where it had replaced defective fittings and section of stack pipe and then jet down to clear line and descaled the stack pipe. It did not have the resources to undertake the planned maintenance works but would undertake responsive repairs as and when required. It offered £50 by way of compensation in recognition of the inconvenience caused by the immediate repairs.

Assessment and findings

The landlord’s response to the resident’s reports of drainage issues.

23. While it was not clear whether the sink waste was connected to the leak in December 2018, it is reasonable to conclude that the leak was repaired and addressed and, in the circumstances, the landlord acted reasonably.
24. Whether or not the issue of the sink waste was linked, it was reasonable of the landlord to take the view that the repair was the responsibility of the resident, given that under the lease, the landlord would not be responsible for internal fixtures.
25. The evidence is not clear whether the landlord considered a CCTV survey following the leak in 2018 and did not ensure one was carried out. However, the evidence shows one was not carried out. There is no evidence that, even if it had done so, this would have prevented the further leak in 2020, given it occurred some 13 months after.
26. It was reasonable of the landlord to make or facilitate a claim under the block’s building insurance in order to pay for the remedial works. Though the resident was not happy with the delay to those works, the delay was not part of the resident’s complaint and therefore not subject to this investigation.
27. The landlord acted reasonably and appropriately by attending to the leak in December 2019/January 2020 within a short space of time after the report. It was also reasonable of the landlord to arrange a CCTV inspection promptly and, equally promptly, to arrange to carry out the works in accordance with the recommendations in the survey. While the resident had suffered a leak from the drain over a year previously, it was reasonable of the landlord to take an overview of the fact there had been incidents of blocked drains in the building and arranged the CCTV survey.
28. It was reasonable of the landlord to reassure the resident that it was taking action in relation to residents placing items in the drains. It was also reasonable it did not share the detail of its actions as this may have breached data protection.
29. The evidence showed that the back surge in itself was distressing and inconvenient. However, the Ombudsman has not found there was service failure in relation to the landlord’s response, given that it responded promptly and in accordance with its policies, and undertook a CCTV survey and jet clearance. The compensation the landlord offered was by way of recognising the inconvenience caused by the immediate repairs. However, the Ombudsman has not identified service failure therefore the compensation is deemed to be a good will gesture and a reasonable exercise of the landlord’s discretion.
30. It is understandable that the resident would want to dispose of her kitchen items that were contaminated by the drain water. However, the Ombudsman does not make findings of negligence resulting in damage to possessions. It does not make orders of compensation in the way that a court may order a payment of damages. While there are circumstances where it may be fair and proportionate for this service to order compensation to the value of any damaged property/belongings as redress, the Ombudsman has not made a finding of service failure in any event.

The landlord’s response to the resident’s request for a permanent repair.

31. The evidence showed there were two potential causes for the blockages: one was the condition of the drains, and the other was neighbouring residents placing items in the drains. In relation to the resident’s suggestions there be a planned programme of stack jetting and (later on) the installation of equipment, such as a non-return valve, it was reasonable of the landlord to consider the idea and to explain that it did not have the resources to undertake planned maintenance works, both staff–wise and costs–wise, and given the demands on its services, especially at that time. It is reasonable to conclude, given the national situation at the time, that a backlog of repairs had been caused by the pandemic. The landlord also had a duty under the lease to consider whether the costs it incurred were reasonable in nature. The evidence showed that it had arranged to replace defective fittings and undertook another descale of the pipes in response to a report from elsewhere, which was evidenced in the landlord’s records. It demonstrated that it responded proactively to reports and, given the number of blockages over time, it was proportionate that the landlord addressed the reports as and when they arose, as a responsive repair. In any event, there would be no guarantee that the actions the resident proposed, or similar remedies, would have eliminated drain blockages, particularly as some of the blockages were caused by other residents.
32. Nevertheless, that does not take into account the distress, cost and inconvenience for the resident each time a back surge occurred. There was no evidence of a practical reason that it would be unable to replace components, it was a question  of costs and resources. Under the lease, the landlord had a discretion, though not an obligation, to effect improvements, if fitting additional equipment could be considered as such. There was no evidence that the landlord considered a leaseholder consultation to determine whether to fund equipment and a regular de-scale. If leaseholders funded the costs for contractors to carry out the works, this would obviate the costs for the landlord, who, as a social landlord, had a duty to ensure it spent its funds wisely and proportionately. There may be other issues for the landlord to consider before entering into a consultation, such as proportionality and number of leaseholders. As the outcome of such deliberations is a matter of speculation, the Ombudsman does find service failure. However, the Ombudsman will make a recommendation.

The landlord’s complaint handling

33. It was reasonable of the landlord to utilise the complaints process to set out and explain its actions. It also managed the resident’s expectations by warning the resident it could not eliminate the drain issues. However, it was inappropriate of the landlord not to respond to the resident’s complaints submitted in November 2020 and 7 January 2021 and to respond only when this service contacted the landlord. In the circumstances, the Ombudsman finds there was service failure in relation to its complaints handling, in that it did not follow its own procedures in relation to its complaint handling and did not address that service failure. 

Determination (decision)

34. In accordance with paragraph 54 of the Housing Ombudsman Scheme, in the Ombudsman’s view, there was no maladministration in relation to the landlord’s response to:
    1. the resident’s reports of drainage issues.
    2. the resident’s request for a permanent repair.
35. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in relation to the landlord’s complaint handling.

Reasons

36. The landlord responded promptly and in accordance with its policies and obligations to the resident’s reports of a back surge.
37. The landlord’s reasons for not undertaking works as a matter of planned maintenance, but instead, responding to reports as and when the blockages occurred, were reasonable.
38. The landlord failed to respond to the resident’s complaints on two separate occasions.

Orders

39. The landlord is ordered to pay the resident £100 within 28 days as follows:
    1. £50 in relation to the inconvenience due to the drainage issues, if it has not already done so.
    2. £50 in relation to its complaint handling.

Recommendations

40. The landlord should consider a leaseholder consultation in relation to instructing a contractor to undertake a regular clear of the drains and installing components in the drains to prevent or minimise back surges and to write to the resident with an explanation of its decision.