Notting Hill Genesis (NHG) (202230800)

REPORT

COMPLAINT 202230800

Notting Hill Genesis (NHG)

23 May 2024

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:
1. The landlord’s response to leaking pipes and a blocked drain.
2. The landlord’s handling of the resident’s request for compensation.

Background

The resident is an assured tenant who lives at the property with her husband and child. The property is a 2 bedroom maisonette.
The resident contacted the landlord in September 2022 to report a leak in her kitchen pipes. She said that as a result of the leak, she was unable to use her sink or washing machine. The landlord sent an emergency plumber to the property on the same evening that the report was made. However, the plumber was unable to carry out the repair as the leak was due to a blockage in an external drain. The landlord therefore sent a drainage contractor to the property the next day. The contractor cleared the blockage, stopped the leak and ensured the sink was left in working order.
Although the contractor had resolved the immediate issue of the leak, it said that further repair work was required as the sink leaked under heavy pressure. It recommended that to resolve this, the landlord should replace the sink waste and trap, and a section of pipework below the sink. The landlord did not carry out this further repair. Instead it advised the resident that the repair was her responsibility as she had installed the sink during approved kitchen improvement works. The landlord said that as a ‘goodwill gesture’, it would give the resident £56 as this was how much it would cost her to replace a kitchen cabinet and tiles damaged by the leak.
The resident was unhappy with the landlord’s response, particularly the fact it had refused to carry out the further repair to the sink. She raised a formal complaint. She said that there were ongoing issues with external drains. She commented that it was “not legal nor moral” for the landlord to expect residents to claim on their home contents insurance every time the drainage problems led to damage in their homes.
In its stage 1 response, the landlord provided a copy of the drainage contractor’s report and said it had taken the necessary steps to respond to the reported leak. It advised that the external drains were the responsibility of the local water company and not the landlord. It suggested that the resident contact the water company to ask for help to resolve any ongoing drainage issues affecting the property. The landlord said the resident was responsible for repairing any damage caused by the leak as she had installed the kitchen. It withdrew the goodwill gesture of £56 for the cabinet and tiles, and advised that any claim for damages should be made by the resident through her home contents insurance.
The resident requested a review of her complaint. She explained the kitchen was installed by a professional plumber and that the damage to the sink parts was caused by the external drain problem. She referred to the retraction of the goodwill gesture to cover the cost of the replacement cabinet and flooring as “immoral and malicious.” She said that it was unfair of the landlord to refer her to her contents insurer as she would have to pay the excess and it could affect her future premiums. She suggested that the landlord place the cleaning of the drains on a planned maintenance programme.
In its stage 2 response, the landlord reflected on the stage 1 findings and reached the following conclusions:
1. Damage to cabinet and tiles – although the stage 1 response was “technically correct” as regards replacement being the resident’s responsibility, it was wrong to make an offer and then withdraw it. The landlord apologised for this and reinstated the £56 goodwill gesture.
2. Sink repair – it was the resident’s responsibility to repair the sink as it was installed by her contractors during the kitchen improvement works.
3. External drains – the stage 1 response was correct in saying that it was the water company’s responsibility to investigate and repair any ongoing issue with the external drains. However, it was not appropriate to suggest the resident reported this to the water company and the landlord could have offered her more support. The landlord apologised for this and confirmed it had since reported the issue to the water company. The water company confirmed it would inspect the drains in the street and would keep the landlord updated on any action to be taken.
The resident remained unhappy with the landlord’s response to the complaint and referred it to the Ombudsman.

Assessment and findings

The landlord’s response to leaking pipes and a blocked drain

The landlord is legally obliged by section 11 of the Landlord and Tenant Act 1985 to keep in repair the structure and exterior of the property, including drains. It must also keep in repair installations such as boilers, electrics, pipes and sinks. The landlord’s repairs policy, its guidance document on tenant responsibilities, and the terms and conditions of the resident’s tenancy agreement all reflect this legal position.
When the resident first reported a leak in the property, the landlord appropriately categorised it as an emergency repair. The repairs policy requires that such repairs are responded to within 4 hours, with all major services restored within 24 hours. In line with the policy, the landlord sent a plumber the same day the problem was reported. It acted promptly upon receiving the plumber’s advice that a drainage specialist was required to resolve the problem as it was due to a blocked drain. Accordingly, a drainage contractor attended the property the following day. The contractor identified the blockage was in a manhole outside. It cleared the blockage and then tested the kitchen sink to ensure it was left in working order. The landlord’s response to the initial emergency repair was therefore appropriate and adhered to its policy.
The drainage contractor identified that parts of the sink required replacement as they leaked under pressure. This was a non-emergency repair. The landlord’s repairs policy provides that where it is responsible for such repairs, they will be carried out within 20 working days. However, in this case the landlord did not carry out the repair as it determined that it was the resident’s responsibility given she had installed the sink. As will be explained below, the landlord was incorrect to adopt this position. In doing so, it failed to adhere to its section 11 obligations and its own policies.
Section 11 explicitly refers to sinks as an installation that the landlord must keep in repair and proper working order. There are limited circumstances prescribed by legislation when the repair obligation does not apply. The only potentially relevant exemption in a case such as this would have been if the damage to the sink had been caused by the resident not acting in a ‘tenant-like manner’. However, in this particular case, there was no suggestion by the landlord that the tenant had behaved inappropriately or breached her tenancy agreement. Although she had carried out improvement works to the kitchen, she had sought the landlord’s permission before doing so in line with the tenancy agreement. There is no evidence to suggest the landlord carried out a post-installation survey and was dissatisfied with the work. The drainage contractor’s report stated that sink parts were leaking when put under pressure and should be replaced. The report did not indicate if this was due to the sink not being correctly installed in the first place, or if it was the blocked drain that had weakened the parts. The resident suggested to the landlord it was the latter. She said that a professional plumber installed the sink and there were no issues with it until the blockage occurred. There was no other evidence to indicate the resident had not behaved in a tenant-like manner, nor did the landlord suggest this was the case.
The landlord instead relied upon the wording of the tenancy agreement to support its position. In doing so, it failed to recognise that a landlord is unable to contract out of its section 11 repair obligations. A tenancy agreement is unable to override section 11, and any clauses that purport to do so are not valid. In this case however the tenancy agreement did not attempt to do this and the error was due to a misapplication of the agreement by the landlord.
Both complaint responses quote section 2.5 of the agreement as stating, “If the tenant makes any changes to the property they would be liable to maintain and would not be the landlord’s responsibility.” This is a misquote. Section 2.5 states, “We will carry out repairs we are responsible for, such as repairing or replacing fixtures and fittings which we own.” In other words, it does not say that the landlord will never repair items installed by the resident. On the contrary, section 7.6 of the agreement states, “You are responsible for the repair and maintenance of any improvements that you make in your home, unless the improvement replaces something provided by us, in which case we will repair and maintain it once installed. For example, replacement bathroom or kitchen, which must remain in the premises once installed.” The landlord failed to consider the applicability of section 7.6 when dealing with the resident’s complaint at both stages.
Other policy documents also make the same position clear. For example, a guidance document on tenant responsibilities sets out that the landlord is responsible for fixtures, “including those that have been approved as home improvements.” It states that the landlord will repair issues with drainage and blockages, leaks, pipework, kitchen sinks and taps. The guidance states that residents are responsible for repairs to, “any appliances and fittings that they have installed e.g. white goods, gas cooker, washing machine, carpets, furniture etc.” Sinks are fixtures rather than fittings, therefore as per the wording of the guidance document, they do not fall within the remit of resident repairs. Sinks remain the landlord’s responsibility, even if installed by the resident.
Although the tenancy agreement and the landlord’s policy appropriately reflected that the landlord was responsible for repairing the sink, it failed to recognise this. At both stages of the complaint process it incorrectly quoted from the tenancy agreement. The wording in the incorrect quote appears to derive from pre-complaint email correspondence with the resident. This would suggest that at each complaint stage, the wording from previous correspondence was reapplied, rather than a review undertaken of the tenancy agreement itself and relevant policies. This does not follow the principles of the Ombudsman’s Complaint Handling Code (the Code) which requires a thorough investigation is carried out at both complaint stages. The investigations must be conducted in an impartial manner, seeking sufficient, reliable information from both parties so that fair and appropriate findings and recommendations can be made. The landlord failed to do this.
The landlord told the resident that where it incurs contractor costs for repairs to resident’s “own appliances”, the fees will be charged to the resident. It said that it was “happy to waiver the costs” of the plumbing and drainage contractors who provided the initial response to the leak. However, the contractors were fulfilling a repair obligation of the landlord. The sink, pipes and drains are not appliances belonging to the resident. It was therefore inappropriate for the landlord to suggest it was waiving the contractor costs, as the resident was not responsible for paying these in the first place.
When making her complaint, the resident suggested that the landlord was not doing enough to address the blocked drains that were the underlying cause of the leak. She said the drainage issues were “historical and ongoing”, with a leak in her garden the previous year having been caused by the same issue. She said the drains were under the property, and therefore the landlord’s responsibility. In response the landlord advised her the leak in September 2022 was due to a blockage in a manhole in the street. This was based on the advice it received from its drainage contractor who attended the property and cleared the blockage. It was reasonable for the landlord to rely on the advice of a professional contractor.
The landlord was correct in its assertion that it is not responsible for maintaining or repairing public drains. In addition to drains in the street, drains that run under a building may sometimes be considered a public drain if they service a number of properties. Responsibility for the maintenance of public drains lies with the water company. However, if there is a fault with a public drain that connects to the landlord’s property, it is in the landlord’s interests to liaise with the water company to ensure it is resolved. This is because it may have a knock on effect and lead to repair issues with internal drains, pipes and sinks that are the landlord’s responsibility, as occurred in this case. The landlord recognised in its stage 2 response that it was inappropriate to have suggested in its stage 1 response that the resident should contact the water company herself. It apologised for this and appropriately contacted the water company when issuing the stage 2 response in January 2023.
Although the landlord reasonably relied upon its contractor’s advice with regard to the source of the blockage in September 2022, it did not comment on where the drainage issues emanated from the previous year. The landlord did not provide an assurance in its complaint responses that it was satisfied there were no ongoing issues with the drains it was responsible for within the property. This was despite the resident specifically stating she was concerned there were ongoing issues with the drains within the property and asking that the landlord put them on a regular cleaning schedule going forward. The landlord’s lack of engagement with the resident on this was unreasonable.
In providing evidence to this Service, the landlord supplied a report of a CCTV camera survey of the underground drainage system servicing the property. The survey was carried out by drainage engineers in June 2022, 3 months before the leak. The engineers reported, “most of the drainage system was found to be in good serviceable order.” A recommendation was made in the report that a manhole should be descaled and cleaned, and that a further survey should then be carried out. It is unclear if this was the same manhole that was blocked and led to the leak in September 2022. It is also not known whether this recommendation has been implemented, or who would be responsible for it as it could also involve the water company.
Although outside the scope of this investigation, the resident advised this Service that there was recently a further leak from pipes in the kitchen.
Given the resident’s concerns and the number of drainage problems that have arisen in recent years, the landlord should reasonably:
1. Review the drain survey report.
2. Ensure the recommendation to carry out descaling and cleaning has been actioned, be that by the landlord or the water company.
3. Consider whether a further survey is required.
4. Review the maintenance arrangements in place for the cleaning of drains within the resident’s building.
5. Advise the resident of the maintenance arrangements.
6. Update the resident on its engagement with the water company in relation to the external drains.
Overall, the Ombudsman finds there was maladministration in the landlord’s response to the leaking pipes and blocked drain. Although its emergency response was appropriate, its follow up actions were not. It refused to accept its repair responsibilities with regard to the sink, despite its policy aligning with its legal obligations as per section 11 of the Landlord and Tenant Act 1985. It misquoted and misapplied the relevant provisions of the tenancy agreement, and missed the opportunity to correct this during the stage 2 investigation. It failed to engage with the resident on her wider concerns regarding ongoing drainage issues at the property. It would have been reasonable for the landlord to contact the water company once it discovered there had been a blockage in a public drain, especially as the landlord cleared it at its expense. However it took for the resident to raise a complaint, and then escalate it, before the landlord accepted that it should approach the water company. This was unreasonable.
In line with the Ombudsman’s remedies guidance, the landlord should pay the resident £600 in compensation. This is to reflect the multiple failings identified in this report, the time and effort spent by the resident in pursuing the complaint, and the stress and inconvenience this caused her. As the sink has not been repaired as of the date of this report, the landlord should attend to this as a matter of priority.

The landlord’s handling of the resident’s request for compensation

Following the leak, the resident asked the landlord to compensate her for damage caused to a kitchen cabinet and floor tiles. She asked for the modest sum of £56 to cover the cost of materials only. The landlord initially agreed to pay this as a “goodwill gesture”, but then withdrew the offer in the stage 1 complaint response. The stage 2 response recognised that it was inappropriate to make an offer and then withdraw it. It apologised and reinstated the offer on that basis. However, the landlord said the stage 1 response was “technically correct” to suggest that it was the resident’s responsibility to replace the items and that she could make a home contents insurance claim. In reaching this conclusion, the landlord does not appear to have considered the following:
1. Kitchen cabinets are generally considered to be fixtures rather than fittings. As outlined above, the landlord’s guidance document on tenant responsibilities states that it will repair fixtures, including those approved as a home improvement. This reflects the position set out in section 7.6 of the tenancy agreement whereby the landlord has committed to repair and maintain kitchens and bathrooms, even if they have been installed by the resident. As such, it would have been appropriate for the landlord to recognise it was responsible for repairing the damage to the kitchen cabinet, or if it was beyond repair, for paying for a replacement.
2. Contents insurance does not usually cover damage to sinks, kitchen cabinets, or flooring that is stuck to the ground such as tiles. Such claims would normally be covered by buildings insurance which is the landlord’s responsibility to provide. Residents are unable to hold buildings insurance. The landlord was therefore incorrect when it suggested in the stage 1 response that the resident could claim for the damage caused by the leak through her home contents insurance. It did not identify this error in its stage 2 response.
Although the landlord reinstated the offer of £56 to cover the cost of the damage to the cabinet and floor, its rationale that this was a ‘goodwill gesture’ was flawed for the reasons outlined above. The landlord failed to adhere to its policy and gave incorrect advice regarding the insurance position. The Ombudsman finds that this amounts to service failure. In line with the remedies guidance, the landlord should pay the resident £100 compensation on account of the failure and the resident’s time and trouble in pursuing the matter. The £100 is in addition to the £56 the landlord already offered the resident.
It is recommended that the landlord ensures its staff are aware of the Ombudsman’s ‘Guidance on Complaints Involving Insurance Issues’. It should highlight that as per the guidance, a landlord should always consider whether there is any evidence that it has been at fault for any claimed damage to a resident’s property or belongings. The guidance states that if a landlord accepts that it was or may have been at fault, it may not be reasonable to ask residents to claim on their own contents insurance policy. All claims made on a policy may affect the resident’s future premium and/or require them to pay an excess. The landlord should also ensure staff are clear as to the distinction between buildings and contents insurance. This learning should be applied when considering any future claims from the resident, particularly in relation to the recent leak at the property.
It was noted that there is some wording within the landlord’s policies that requires review to align with the tenancy agreement. As outlined above, the landlord’s guidance document on tenant responsibilities states that it will repair fixtures, including those approved as a home improvement. However, on another page of the same guidance document, it states that the landlord will repair “kitchen units, doors and frames” but that residents are responsible for “fixing and replacing [kitchen] cupboards and drawer handles”. It appears that ‘kitchen units’ and ‘cupboards’ are the same thing. There is also a disparity within a separate repairs policy which states residents are responsible for repairing “any fixtures and fittings you’ve installed yourself”. This contradicts the clear wording in the legally binding tenancy agreement. It is therefore recommended that the landlord ensures that all relevant policies and guidance documents are unambiguous with regard to its repair obligations, particularly in circumstances where the resident has carried out home improvements.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in respect of the landlord’s response to leaking pipes and a blocked drain.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in respect of the landlord’s handling of the resident’s request for compensation.

Orders

Within 4 weeks of the date of this report, the landlord should:
1. Apologise to the resident for the failings identified in this report. The apology should follow the best practice set out in the Ombudsman’s remedies guidance. It should be made by a senior member of the landlord’s staff.
2. Pay the resident compensation of £700 broken down as follows:
  1. £600 for the maladministration in its response to the leaking pipes and blocked drain.
  2. £100 for the service failure in the handling of the compensation request.
3. Ensure the resident’s kitchen sink is fully repaired. The resident should not be charged for this repair.
Within 6 weeks of the date of this report, the landlord should:
1. Issue guidance to staff to ensure they are fully aware of the landlord’s obligations under section 11 of the Landlord and Tenant Act 1985 in cases where a resident has carried out home improvements.
2. Ensure the recommendation made by a drainage engineer in a 2022 CCTV survey report has been implemented. It should consider whether a further survey is required.
3. Review the maintenance arrangements in place for the cleaning of drains within the resident’s building. It should advise the resident of these arrangements.
4. Provide the resident with an update on its engagement with the water company in relation to the external drains.

Recommendations

The landlord should ensure staff are aware of the Ombudsman’s ‘Guidance on Complaints Involving Insurance Issues’ and are clear as to the distinction between items covered by contents insurance, and items covered by buildings insurance.
The landlord should ensure that all relevant policies and guidance documents are unambiguous with regard to its repair obligations, particularly in circumstances where the resident has carried out home improvements. Any required amendments may wait until the next policy review date provided guidance is issued to staff in the interim as per the order made in this report.