Rochdale Boroughwide Housing Limited (202113713)

REPORT

COMPLAINT 202113713

Rochdale Boroughwide Housing Limited

8 December 2022

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s response to the resident’s reports about drainage issues and damage caused to her property.

Background and summary of events

Background

The resident is an assured tenant of the landlord. The property is a flat in a block which the resident lives in on her own. The resident is stated to have Asperger syndrome and is represented by her mother in the complaint.
The tenancy agreement confirms the landlord’s responsibility to maintain the drains, and obligates tenants not to cause blockages from the deposit of unsuitable refuse.
The supplied repairs policy advises that at the time of the complaint, uncontrollable leaks and health and safety risks were treated as priority 1 or 2 repairs, and were aimed to be responded to within two hours. The policy confirms that the landlord aims to use discretion for vulnerabilities in respect to repairs.
The landlord’s complaints policy advises that after an informal stage, it aims to respond within 10 working days at stage one, and within 15 working days at stage two. The policy states that damages claims should be handled as public liability insurance claims, however the separate compensation policy provides scope for discretionary reimbursements for items damaged as a result of a failure to repair or maintain something, although issues out of the landlord’s control such as flooding are not covered. The compensation policy states that customers should be advised to claim on their home contents insurance where they hold such a policy, and that advice should be sought from an insurance and risk team for claims over £1,000. The policy states that the severity of the impact of a service failure on customers, including vulnerable residents where the impact may be more severe than it would otherwise be, is aimed to be considered.

Summary of events

In February 2018, the information provided advises that the bathroom, bedroom, kitchen and hallway in the resident’s flat were affected by sewage due to a blockage. The landlord’s records advise that a blockage to a stack pipe was jetted, repairs to a sewer were identified, and contaminated floor coverings from affected rooms in the property were recommended to be disposed of.
In March 2018, the resident made an application to the landlord’s home contents insurance scheme, which the external insurance provider that managed the scheme rejected, as the identified repairs were still being progressed and had not yet been completed. The landlord’s contemporaneous records note that this was relayed to the resident, and that she agreed she would submit a new application to the scheme when the repairs were completed.
The resident’s account and the landlord’s records confirm there were no further reports, and the information provided by the landlord next advises that around March 2021, another flat at the block experienced two incidents of flooding from blockages within the space of two weeks. Following this, the stack pipe at the block was surveyed with a camera and no obstructions were found.
The landlord’s repairs records then advise that at 3.24pm on 26 May 2021, the resident called to report a “Blocked soil stack/Toilet,” and a repair was raised which noted that the toilet was blocked with waste; that water came up when a flat above flushed; that sewage had started to go onto paths outside; and that there was possibly a blockage to the soil stack connected to all the flats.
The landlord’s records advise that following this, a plumber attended at 4.46pm and was unable to clear the blocked toilet. The resident’s mother’s account advises that:
1. the plumber who attended used the resident’s mop as they lacked any tools to plunge the toilet, which was not overflowing at that point;
2. the plumber was advised to look at the soil stack by someone on the phone, but said they could not do this as they were called to another emergency, and would arrange for someone else to attend within the hour;
3. the toilet started to overflow and waste began to rise up the bath plug as the plumber was leaving, due to other flats flushing their toilets, and the plumber put down paper towels before they left.
The resident’s mother’s account advises that after the plumber left, the toilet started to overflow again and sewage flowed through the flat and out of the front door. The landlord was called and its records advise that after the plumber’s attendance, the repair was passed to drainage operatives. The records advise that the drainage team attended in the early evening, and rodded and jetted the soil stack to clear a blockage. The team then surveyed the soil stack with a camera and found no obstructions.
The landlord internally discussed the repair later the same evening and it was reported that the bathroom, bedroom and kitchen had been ‘aqua vacced’ but further vacuuming was required, which it was suggested to be arranged when the mother of the resident, who was noted to have Asperger’s, would be present. It was noted that blockages at the block two months prior were suspected to be due to non-flushable items, and internal requests were made for block residents to be spoken to about non-flushable items, and for further cleaning to be arranged in the resident’s flat.
The following day, on 27 May 2021, the landlord raised a works order for a chemical clean of the property, which noted that the resident’s mother should be liaised with to arrange access. The information provided advises that this was completed on 28 May 2021, and the resident’s mother’s account advises that the cleaners removed carpets and bedroom furniture which were contaminated with waste.
The resident’s mother’s account advises that she called the landlord to discuss replacement of damaged items, and after being informed that she should have contents insurance, she complained to the landlord on 1 June 2021:
1. She detailed the events on 26 May 2021 and noted that she had called to report the toilet not draining when flushed, due to a similar incident four years prior; that the plumber who initially attended did not have the necessary tools; that the drainers that attended resolved the issue after five minutes; and that the drainers had informed her about recent blockages at other flats due to non-flushable items.
2. She expressed dissatisfaction that she had been informed she should have contents insurance, as previous contents insurance policy applications had been rejected due to the previous flood and the insurance risk.
3. She advised that the resident was vulnerable and that the issue had caused stress and anxiety and affected her confidence and independence, as her flat was a place of personal safety. She advised that the resident was currently staying with her and was nervous about the issue happening again. She said it was unfair that the resident would not receive any help to replace damaged furniture and was being penalised for other tenants’ neglect and something out of her control, and she appealed to the landlord to help.
On 8 June 2021, the landlord issued a stage one response to the complaint:
1. It noted that the blocked toilet was not a repair the plumber could resolve, as the problem was identified to be a blockage in the drainage system, and so the plumber reported this back for attendance by the drainage team and left to attend to another emergency.
2. It noted that the resident felt that the plumber should have done more to help and remained until the drainage team arrived. It said it understood they did assist by laying paper to soak up water, but explained they would not have been able to do anything to unblock the drain or prevent water backing up, as they were not a drainage operative or have appropriate tools for a repair.
3. It noted that the resident advised that she did not have home contents insurance, as the scheme it promoted refused her cover following a previous claim. It noted the application in 2018 was refused as the issue had not been fully repaired, she was advised to re-apply, and its records did not show a further application was received. It explained it had no influence over the external insurance provider’s decisions as they were a separate company.
4. It noted that the resident felt it was liable for damage to floor coverings and furniture which had cost £1,000 new. It explained that the cause of the blockage was inappropriate items being flushed down toilets, which was something residents were asked not to do but unfortunately still happened. It said it understood the incident must have been distressing and it was sorry for any damage caused, but it did not believe it was liable as it attended within two hours of being contacted; the drainage team attended the same evening when it was identified the problem was a blocked drain rather than toilet; and its records also showed its caretaking team had attended to assist with cleaning and removal of items. It offered £100 as a goodwill gesture towards any floor coverings or furniture.
On 16 June 2021, the resident’s mother requested escalation of the complaint.
1. She noted that the property had not yet flooded at the time of the plumber’s arrival and that this could have been prevented if they had attended with the appropriate tools. She noted that the blockage was referred to another team which did not arrive for another hour, during which surrounding flats flushed their toilets, causing sewage waste to overflow from the toilet and bath and cause damage.
2. She said that being informed she should have contents insurance was ‘laughable’ when insurance companies considered the property to be high risk and would not insure it. She asked the landlord to revise its compensation offer to one that that would allow damaged items to be replaced. She noted that the issue continued to cause distress to the vulnerable resident and that the worry about replacing furniture was worsening the situation.
3. She noted that there had been no reassurances that the issue would not happen again, and she queried what precautions were being taken to prevent similar incidents in the future.
The landlord provided its final response on 18 June 2021:
1. It advised that it was clear that the plumber who attended identified that the blockage was within the internal soil stack system, which the plumber was not qualified to repair or have the specialist tools required, and required attendance by its drainage team.
2. It advised that it had no record of a further application from the resident for the home contents cover since 2018, and that it had no control over whether insurance companies provided cover.
3. It advised that the problem was caused by inappropriate items being flushed down toilets, which it had previously asked residents not to do. It said it would consider legal action if it had clear evidence which residents were doing this, but it noted that the issue was almost impossible to prevent or police.
4. It advised that it understood that the incident would have caused distress and that it was sorry about the backing up of the drainage and the damage caused. It advised that it did not consider there was any liability on its part, as it had not done or failed to do anything that caused the blockage and had attended quickly, however it offered to increase its goodwill gesture to £150.
In August and November 2021, the resident’s mother expressed dissatisfaction to this Service about the landlord’s response, and requested help to obtain a realistic settlement to replace contaminated carpets and furniture disposed of by the landlord’s cleaners. She explained how her daughter has Asperger’s syndrome and had to vacate the property for several days while the clean-up commenced, which caused considerable upset. She advised that flooding at the block was a historic and ongoing problem and ground floor flats were flooded regularly, as the toilet stacks were outdated and did not function properly. She advised that this was the second time the resident had experienced the issue, and there was concern it could happen again, but no reassurances had been given about what had been done to prevent further incidents of the same nature.

Assessment and findings

The Ombudsman’s remit in relation to complaints is set out by its Scheme, and Paragraph 42(g) of the Scheme states that the Ombudsman will not investigate complaints which in the Ombudsman’s opinion “concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.” This means it is not within the Ombudsman’s authority or expertise to definitively determine cause, liability or negligence, and to award damages in the way an insurance procedure or court might, but we can assess whether the landlord has followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case.
The Landlord and Tenant Act 1985 and the landlord’s policies confirm that the landlord is responsible for the repair of the structure of the property, which includes drains. As a result, it is necessary for it to investigate reports of issues which affect living in the property and to take appropriate steps to resolve any issues in a reasonable and timely manner.
This Service’s guidance confirms that for complaints involving insurance, a landlord should consider what is a fair and reasonable response, and initially consider if there is any evidence it is at fault for claimed damage, rather than refer residents straight to an insurer. If a landlord disputes fault, it may be reasonable to refer complainants to their or the landlord’s own insurer to establish liability. If a landlord accepts that it was or may have been at fault, it may not be reasonable to ask complainants to claim on their own insurance. If liability is denied, a landlord should still investigate and respond to reports that its actions or inactions have caused distress and inconvenience, consider if there was any service failure, and consider if any compensation is applicable. The landlord’s policies also confirm that there is scope for damages claims to be handled as public liability claims; that there is scope for discretionary reimbursements for items damaged as consequence of failings; that customers should be advised to claim on their home contents insurance where they hold such a policy; and that advice should be sought from an insurance and risk team for claims over £1,000.
The evidence shows that after the resident’s blockage report on 26 May 2021, the landlord’s plumber attended the same afternoon; its drain team attended the same evening; and the property was chemical cleaned within two days. The landlord then set out a position that the repair was attended within target timeframes and that it did not consider itself to be liable for any damages. The evidence shows that in some ways the landlord responded positively and was mindful of the resident’s vulnerability, such as when arranging cleaning and offering goodwill compensation; however, there are other aspects of its response which are not satisfactory.
The evidence shows that two months prior to the resident’s report, there were two similar flooding incidents at other flats in the block which had required attendance by the landlord’s drainage team. The evidence also shows that the resident’s first blockage report on 26 May 2021 was for “Blocked soil stack/Toilet,” and noted that water came up when a flat above flushed; that sewage had started to go onto paths outside; and that there was possibly a blockage to the soil stack connected to all the flats. This Service’s spotlight report on complaints about repairs details good practice landlords should follow in respect to repairs, which includes learning from outcomes and making changes to prevent issues such as poor initial diagnosis. In addition, the Regulator of Social Housing’s Home Standard advises that housing providers should have the objective of completing repairs ‘right first time.’ The Ombudsman seeks to avoid the benefit of hindsight, however the recent issues at the block that required attendance by the landlord’s drainage team, and the report’s referral to a stack pipe blockage and impact from/to areas outside the property, raise concern about the initial diagnosis and why a plumber rather than the drainage team was initially sent for the resident’s report. It is not satisfactory that the landlord does not demonstrate that it considered these, as these should have been considerations for potential learning about future responses for blockages reports at the block and the assessment of its liability.
It is not satisfactory that the landlord does not demonstrate any potential learning and provided limited reassurance that the issue would not happen again. There is no evidence that the blockage in 2021 was related to issues in 2018, however the resident was distressed at the recurrence of the issue to the degree that she felt it necessary to temporarily move into her mother’s home, and she will have been caused further distress at the possibility that the issue could happen again. This was not appropriate particularly given the resident’s vulnerability.
The landlord cannot control if non-flushable items are flushed by residents, however it should have considered preventative and responsive measures to provide reassurance to the resident and help avoid the impression that it was defeatist in its approach. The evidence shows that internal requests were made for block residents to be spoken to about non-flushable items, however it is not clear this was done. The three blockages in three months due to non-flushable items means it would have been appropriate to send a written communication to the block. The report’s referral to a stack pipe blockage and impact from/to outside the property should also have prompted review of whether it was reasonable that a plumber responded to this. This and the three blockages in three months should have prompted consideration about whether any issue diagnosis training or repairs system alerts were required to help inform responses to future reports from the block, e.g. so that the drain team was sent out first time for reports that indicated blockages may be communal in origin, or so that the drain team were sent out alongside a plumber. This would have been appropriate given the landlord’s aim should be to try to diagnose and resolve issues first time.
It is not satisfactory that, when assessing liability, the landlord only focused on the timeliness of the repair, and does not demonstrate it considered other relevant factors, good practice and its policies. In its assessment of liability, the landlord should have considered if it was reasonable that a plumber rather than the drainage team was initially sent, given the recent similar incidents and the report’s referral to a stack pipe blockage and impact from/to outside the property. The landlord should have considered whether the report wording was taken into account appropriately, and whether it was possible that its drainage team could have attended earlier and avoided the damage to the resident’s possessions that occurred. The landlord should have also considered whether its liability was impacted by its awareness of similar recent incidents that had required attendance by the drainage team. In its response in respect to insurance matters, the landlord should have included details of its insurer/public liability insurance, in line with good practice and given that the resident lacked home contents insurance. The landlord should also have demonstrated that advice was sought from its risk and insurance team, in line with its policy that this should be done for claims over £1,000 which the claimed damage to floor coverings and furniture was around.
This investigation notes that the resident raised concerns about not being able to obtain insurance for her home contents. This investigation should note that it is not in this Service’s expertise to make definitive decisions about insurance policies, and in the Ombudsman’s opinion the landlord’s response to this aspect was reasonable. The resident referred to previous difficulty obtaining insurance in 2018, however the landlord was reasonable to note that there was no record of an application for home contents cover since 2018, as it is not evident that she experienced difficulty in the subsequent three years when the option was available to re-apply for the scheme. The landlord saying it had no control over whether insurers provided cover was also reasonable, given it is not disputed that the landlord completed the repair that impacted the initial insurance application in 2018, and it is not evident that subsequent insurance applications were impacted by a lack of completion of this repair.
The evidence overall shows that aspects of the landlord’s response were reasonable, such as its position on the resident’s difficulty obtaining insurance and its mindfulness of her vulnerability when arranging the cleaning and goodwill gesture of £150. However, as set out above, there are a number of ways in which the landlord’s response was not satisfactory, and these lead this Service to make a finding of maladministration. It is not appropriate that relevant factors were not considered when assessing liability; insurer’s information was not provided; and it is not evident that more robust steps were taken in writing to block residents about non-flushable items and considering adjustments to responses to reports from the block, given these have the potential to have a significant impact on the resident as well as other residents.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s response to the resident’s reports about drainage issues and damage caused to her property.

Reasons

While aspects of the landlord’s response were customer focused, it does not demonstrate that it considered relevant aspects of its service delivery in order to identify any potential learning. It provided limited reassurance to the resident that the issue would not happen again, when she was vulnerable and distressed by the issue and there were some preventative and responsive measures it could consider. It does not demonstrate that, when assessing its liability, it considered relevant factors or sought the advice of its risk and insurance team in line with its policy; and did not provide its insurer’s details in line with good practice.

Orders and recommendations

Orders

The landlord to pay the resident £400 for the distress and inconvenience caused by the issues identified.
The landlord to take steps to consider the resident’s claim of damages:
1. by directly assessing the claim and discussing this with the resident and its risk and insurance team;
2. or, by providing the resident with details of its insurance provider, and ensuring that the insurance provider considers her claim.
If the landlord directly assesses and refuses the claim, it should provide the residents with details of its insurance provider to further consider the claim, and ensure that the insurance provider considers the claim.
The landlord to review the recent frequency of blockages at the block due to communal causes such as stack pipes, and consider whether:
1. it needs to write to the block residents about blockages caused by non-flushable items;
2. any alerts need to be placed on its repairs system for the block, to inform its response to blockage reports which mention an impact from/to outside the property and may require attendance from its drainage team.
The landlord should provide evidence to this Service that it has complied with the above within four weeks of this decision.

Recommendations

The landlord to review learning from the case for how it responds to claims related to its repairs service, in accordance with its policy and the Ombudsman’s guidance on insurance.
The landlord to review whether any learning or staff training is required in respect to issue diagnosis from repairs reports.
The landlord should inform this Service of its intentions in respect to the above recommendations within four weeks of this decision.