Sandwell Metropolitan Borough Council (202204051)

REPORT

COMPLAINT 202204051

Sandwell Metropolitan Borough Council

16 August 2023

Our approach

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

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

The complaint

The resident complains about:
1. The landlord’s response to reports of a pest infestation (sewer flies).
2. The landlord’s handling of the resident’s request to be rehoused.
The Ombudsman has also investigated the landlord’s complaint handling.

Background

The resident holds an assured tenancy for a ground floor flat with the landlord, which is a local authority. The tenancy started on 15 November 2021. The resident has a number of recorded vulnerabilities with the landlord, including COPD, depression, and anxiety.
On 5 March 2022 the resident reported an uncontainable leak within the kitchen. The landlord attended and carried out a repair on a leaking soil stack pipe which was located under the kitchen floor. The resident says that since the repair there has been a problem with sewer flies in the kitchen, which she reported to the landlord. On 1 April 2022 the landlord arranged for a contractor to attend the resident’s home and complete a deep clean in the kitchen.
On 8 April 2022 the resident contacted the landlord and raised a complaint regarding the flies in her kitchen. The resident told the landlord that she had not used her kitchen for three weeks because of the flies. The resident also explained that she was disabled and was eating a very basic diet of cereal and crackers, as she did not want to open the door to the kitchen because of the flies.
The resident emailed the landlord multiple times in April and May 2022, where she asked the landlord to update her on the action it was taking as she had still not used her kitchen and, as a result, had lost weight. On 24 April 2022, the resident also told the landlord that she wanted to move due to the issues.
The resident contacted the Ombudsman on 29 May 2022 as she had not received a response to her complaint she made on 8 April 2022. This Service contacted the landlord and asked it to provide a response to the resident.
In an attempt to resolve the issue with the flies, the landlord attended on 16 May 2022, and replaced the kitchen flooring. The landlord also arranged for a pest control contractor to attend the resident’s home, who provided two fly catchers for the sewer flies and reported that a follow up appointment was required to flush out the drains. The contractor reattended on 24 June and 4 July 2022, but it is not clear what work was carried out.
The landlord provided a stage one response on 21 June 2022 where it said that it had previously arranged for a contractor to attend and pour a chemical solution down the drain to try to resolve the issue and also said that that it had offered the resident the option to move to another property.
On 15 July 2022 the landlord visited the resident and completed the housing registration form so that the resident could start to bid for alternative properties. The landlord also arranged for further works to be completed in an attempt to try and resolve the issue. On 15 July 2022 the landlord attended to jet the pipes in the kitchen and on 18 July 2022 the landlord attended to replace the waste trap under the sink.
On 19 July 2022, the landlord wrote to the resident and said that although the resident only held an introductory tenancy at the time, she had been awarded a ‘band 5’ priority. This meant that that resident could start to bid on suitable alterative properties.
On 27 July 2022 the contractor returned to the property and identified that the issue was still ongoing and that the pipes had not been jetted. A further appointment was completed on 3 August 2022 to jet the drains and pipes.
The resident escalated her complaint on 28 July 2022 as she was still unable to use her kitchen, the treatments had not worked and she had not heard anything regarding a transfer to another property.
On 2 August 2022 a specialist drainage company attended to pressure wash and disinfect the drainage system. The work was carried out in multiple areas around the property to an attempt to ensure all drainage is clear and flowing free of any sewage deposits.
On 3 August 2022, the landlord carried out a medical assessment to support the resident’s request to move due to the resident’s weakened immune system. The assessment was put before a panel and it was agreed on 12 September 2022 that the resident had been awarded ‘band 2’ medical priority and could now bid for ground floor properties.
The landlord provided its final response on 14 September 2022 and said that:
1. It had tried to resolve the issue with the flies but despite ongoing investigations, the cause could not be identified and therefore it did not have a solution.
2. As it could not find a solution, the resident had been provided with the option to transfer to an alternative property.
3. The landlord had visited the resident to assist with completing the relevant paperwork and had completed the medical assessment paperwork.
4. The resident’s case had been heard at a medical panel on 9 September 2022 and had subsequently been awarded medical priority banding 2. The landlord also recommended that the resident should actively bid on suitable alternative properties and could contact the neighbourhood team to assist her with the process.
The resident contacted this Service as she was unhappy with the landlord’s response. The resident said that the issue with the flies was still not resolved and she was still unable to use her kitchen. The resident said that the landlord was not helping her bid for other properties and that she wanted the landlord to reimburse her for damaged items in her kitchen.
In August 2023, the resident provided the Ombudsman with an update. The resident explained that she continues not to use the kitchen as the sewer flies are still present in the property and as she has low immune system she cannot risk using her kitchen with the flies present. The resident says that she is seeking reimbursement for the contents of her kitchen, which she says were damaged when the sewer pipe burst and the subsequent contamination of other items as a result of the sewer flies.

Assessment and findings

The Ombudsman’s role is to determine complaints by reference to what is fair in all the circumstances and decide if the landlord is responsible for maladministration or service failure.
When investigating a complaint, the Ombudsman applies its dispute resolution principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution:
1. Be fair – treat people fairly and follow fair processes.
2. put things right, and.
3. learn from outcomes.

The landlord’s response to reports of a pest infestation (sewer flies).

Following the repair to the sewer pipe in the kitchen, the resident informed the landlord that she was experiencing an issue with flies. Following the resident’s reports, the evidence provided shows that the landlord was actively discussing the issue between internal departments to try and find a suitable solution for the resident, which included seeking advice from the environmental service department and its own internal repairs department.
Environmental services confirmed that it had visited the property and recommended that the waste traps were removed and cleaned, which the landlord completed on 6 May 2022 and 18 July 2022. The landlord’s repairs team confirmed that it had visited the property and no defects were identified, therefore it was unable to take any further action. It also confirmed that the resident was able to use the kitchen. Furthermore, as an attempt to try and resolve the issue for the resident, the landlord arranged for an external pest control contractor to attend in May 2022.
The Ombudsman acknowledges that the issue with the sewer flies was causing the resident an extreme amount of distress, which she was actively reporting to the landlord, as well as the fact that she was not using her kitchen as she did not want the flies to enter other parts of her home. However, it is for this service to determine whether the landlord acted reasonably given the circumstances of the case at that time.
The landlord does not have specific policies and procedures regarding pest infestations. But generally, a landlord would be responsible for pest infestation in communal areas and or where there is clear evidence of pests entering via a defect to the building and where there is evidence it is a direct result of disrepair. Nevertheless, a landlord would be expected to investigate and establish the source of an infestation. If it agrees to carry out work to address a reported infestation, it would be expected to provide the resident with timescales for completion of the work, and evidence of its continued monitoring of the matter.
The landlord did not have an obligation to eradicate the pests given there is no evidence that the flies were present as a result of disrepair, or in a communal areas. However, the evidence shows that it took appropriate action to investigate and try to establish the cause of the flies. It took a number of reasonable steps to try and eradicate the flies and when it was not able to do so, it supported the resident with the process to try and find an alternative property.
The resident has informed this Service that she feels she is entitled to compensation for items that she states were damaged within her kitchen as a result of the contamination of sewer flies. Where the Ombudsman orders compensation, it must be able to directly link an adverse effect the resident has suffered due to a landlord’s failings. In this case, no failings have been found in the landlord’s handling of the matter.
Since the landlord’s final response to the complaint, the records show that environmental services confirmed that it was unable to treat the flies, and that it had advised the landlord to clean the sewer pipes, all the pipes under the sink, and ubends, as flies may be breeding in the dirt/mud. A job was raised in relation to this. Around the same time the resident advised this service that the landlord had attended and raised a job for a new internal stack which was corroded at the rear. A recommendation is made below regarding this.

The landlord’s handling of the resident’s request to be rehoused.

The resident’s tenancy agreement confirms the rights she has if she wishes to move to another property, which include:
1. A resident has the right to apply for a transfer to another council property, under the lettings policy. Finding a new property depends on how urgent a housing need is and what accommodation is available.
2. Introductory and demoted tenants do not have the right to swap (mutually exchange) their property.
3. Secure tenants have a right to swap a property (called a ‘mutual exchange’) with another secure tenant or an assured tenant whose landlord is the housing corporation. A resident must get the landlord’s permission, in writing, before a mutual exchange takes place.
For clarification, it is appropriate to confirm that at the time of the resident’s request to move to another property, the resident had a introductory tenancy and therefore did not have the right to move to another property, or move via the mutual exchange process.
Following the resident’s complaint to the landlord, it explained, within its stage one response, that it had offered the resident the option to transfer to another property. Additionally the landlord also visited the resident and completed the housing registration form in July 2022, this enabled the resident to bid on alternative properties. It also visited the resident in August 2022 and completed the relevant medical assessment form, which would possibly increase the resident’s housing priority. This shows that the landlord was listening to resident, and it took reasonable steps to try and assist her with her request to be rehoused.
Furthermore, it is clear from the landlord’s final response that it had applied the Ombudsman’s dispute resolution principles, it was attempting to put things right by converting the resident’s starter tenancy to an assured tenancy with immediate effect. By doing this, the resident was able to access more options to move, such as bidding on alternative properties.
The landlord also informed the resident that as a result of the medical assessment, she been awarded a priority 2 banding. This would increase the resident’s chances of securing an alternative property, if and when one became available.
Whilst this Service is aware that the resident still resides in her current property, the actions the landlord took was fair and reasonable and it is recommended that the resident continues to actively bid for appropriate alternative properties.

The landlord’s complaint handling

The landlord’s customer feedback policy says that it operates a two stage complaint process. Stage one complaints will be acknowledged within three working days and a response will be provided within 10 working days. A resident can escalate their complaint to stage two, providing they explain why they wish to disagree with the stage one response. A stage two complaint will be acknowledged within three working days and a response will be provided within 20 working days.
The Ombudsman’s Complaint Handling Code (the Code) states that a complaint must be defined as the following: ‘An expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the organisation, its own staff, or those acting on its behalf, affecting an individual resident or group of residents’.
The Code’s complaint handling principles also says that the Ombudsman encourages the early and local resolution of issues between landlords and residents and recognises that there may be times appropriate action can be agreed immediately.
When the resident first raised her complaint with the landlord on 8 April 2022, it is clear from the information provided that the landlord took steps to try and resolve the issues that were raised and communicated with the resident.
However, as it failed to formally log the resident’s dissatisfaction as a formal complaint, the resident contacted this Service to assist her in obtaining a response from the landlord. The landlord was contacted on 31 May 2022 and asked to provide the resident with a response by 16 June 2022.
The landlord failed to acknowledge the resident’s complaint and furthermore did not provide its stage one response until 21 June 2022. Whilst the Ombudsman acknowledges that delays do occur, as the landlord failed to communicate with the resident within the timescales set, it prompted the resident to have to chase for a response via this Service.
The resident escalated her complaint on 28 July 2022, and whilst the landlord was still in communication with the resident, it did not formally acknowledge her escalation, which again prompted the resident to contact this Service on 5 August 2022. The Ombudsman advised the resident to allow 20 working days for a response, which was in line with the Code, and to contact this service again if she did not receive a response.
There is evidence which again shows that the landlord was continuing to support the resident, but it did not acknowledge or respond to the resident’s stage two complaint. This service contacted the landlord on 5 September 2022 and asked for it to provide a response by 19 September 2022. The landlord provided its final response on 14 September 2022.
As detailed above, although the landlord was in communication with the resident, it failed to acknowledge and respond to the resident’s stage one and two complaint within its published timescales in its complaint policy, which would have further exacerbated the frustration the resident was experiencing.
The Ombudsman has considered the impact on the resident regarding the delay that she experienced in the complaint handling, and also the missed opportunity by the landlord to put things right. In line with this Service’s remedy guidance, where there has been a failure which has adversely affected the resident payments of between £100 and £600 are recommended.
In recognition of the time and trouble and distress and inconvenience the resident has experienced, due to the poor complaint handling by the landlord, the Ombudsman has made an order for the landlord to pay the resident an amount £250.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration with the landlord’s response to reports of a pest infestation.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration with the landlord’s handling of resident’s request to be rehoused.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration with the landlord’s complaint handling.

Orders

The landlord is ordered to pay the resident a total of £250 within four weeks of the date of this report.

Recommendations

The landlord should continue to support the resident with her bidding for an alternative property.
If it has not done so already, the landlord should complete the clean of the sewer pipes, all the pipes under the sink, and ubends, and repair any leaks in the sewer pipe.