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Southwark Council (202008684)

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REPORT

COMPLAINT 202008684

Southwark Council

12 February 2021


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 the landlord’s handling of reports of a backflow surge of water into the property and its response to the complaint.

Jurisdiction

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
  2. Within her complaint to the landlord and in her communication with this Service, the resident has referred to events of 2016 and 2017 regarding similar issues and her suspicions that the issue in 2020 with the backflow of water into the property are indicative of a larger and long-standing problem. 
  3. The landlord in its response to the complaint has stated that an incident reported in 2016 was resolved within a reasonable period of time.  In respect of the issues pertaining to 2017, the landlord has stated that in respect of Defect Liability Period (DLP) for works carried out by major works contractors at that time, for the exception of roof and window replacements, this was for a year and so there was no recourse in respect of any issues regarding this.
  4. Paragraphs 39(d) and 39(e) of the Scheme, respectively state that, “the Ombudsman will not investigate complaints which, in its opinion;

(d) were not brought to the Ombudsman’s attention normally more than 12 months after the exhausted the member’s complaints procedure”, and;

(e) were not brought to the attention of the member as a formal complaint within a reasonable period, which would normally be within six months of the matters arising”.

  1. Although this Service has seen evidence of the resident raising similar issues with the landlord in 2016 and is not doubting this fact, these issues were not brought to the landlord’s attention at that time as a formal complaint and neither to this Service.
  2. Residents are encouraged to bring formal complaints to landlords – and to this Service – within a reasonable period of time.  In doing so, the issue is ‘live’ and can be robustly investigated, with records and personnel linked to the issue or issues being readily accessible and where relevant, enabling a landlord to take action to put things right in a timely manner. 
  3. With the passage of time, documentation may no longer be available and it may not be possible to speak to staff who were involved in the situation at the time, or memories of the situation may no longer be clear. Furthermore, although not within the remit of this Service, complaints about historic issues may also mean that causal links are also impossible to establish; establishing causal links and negligence are matters that should be properly decided by the Court. 
  4. It follows that after carefully considering all the evidence, in accordance with paragraphs 39(d) and 29(e) of the Housing Ombudsman Scheme, the historical aspects of the complaint, dating back to 2016 and 2017 are outside of the Ombudsman’s jurisdiction.

Background and summary of events

Background and policies

  1. The resident has been a secure tenant of the landlord, at the property, from 16 May 2003.
  2. The ‘Tenant’s Handbook’ states that the landlord aims to carry out emergency repairs, that is, where there is a risk of injury to people or major damage to the property, within 24 hours.  Where there is a danger to health and safety, the landlord aims to attend within two hours. Emergency repairs include where there are serious plumbing leaks where the building is in danger of damage and the leak cannot be contained in a bucket.  Non-urgent repairs will be carried out within 20 working days.
  3. The landlord has adopted a two-stage formal complaints procedure whereby the landlord will investigate and respond to a complaint within 15 working days at stage one and where a complainant is dissatisfied with the outcome of their complaint, they may request escalation to stage two of the process.  Where a complaint is escalated to stage two, the landlord will review the complaint and provide a final response within 25 working days.
  4. The landlord’s complaints policy states that compensation may be considered where there has been delay and distress caused and provides a guidance amount of between £5-£20 per week for each, depending on the severity of impact. The landlord may also consider offering compensation for a resident’s time and trouble, ranging from £50-£250.

Summary of events

  1. The resident has stated that she reported an issue with back surge of water into her property in around February 2020 and on 25 June 2020.  The landlord has not provided repairs records to this Service, although it has stated that it carried out a CCTV survey of the soil stack at some point in 2020, as part of identifying and addressing the problem.
  2. Later, on 7 July 2020, the resident telephoned the landlord to report a back surge of water into the property, which she was distressed about.  The landlord was having issues with its telephone system and it advised her that if her call was cut off it would call her back.  The call was cut off and it did not call her back.  The resident called a number of times and said that there continued to be problems with the phone line, with her being put on hold and cut off and no attempt was made by the landlord to email or text her instead. She has said that each time she did manage to get through, she reached a different person and had to explain the situation again.
  3. Late that evening, an operative attended the property and building to carry out an inspection and then left without telling the resident that he had gone or next steps.
  4. The following day, on 8 July 2020, the resident submitted a complaint to the landlord about “the stress caused by [its] emergency number” and set out the issues she had experienced the previous day. The resident added that the same issue with the phone line was happening that day and she had now called seven times and still the issue with the back surge of water remained unresolved.  She also said that only one of the staff members she spoke to was sympathetic to the situation.
  5. Two days later, on 10 July 2020, the landlord attended to inspect and carry out the repair. The landlord has said that it responded to several of the resident’s queries about the issue whilst on-site, although no further information has been provided.
  6. On 26 July 2020 the landlord responded to the complaint at stage one of its complaints procedure.  The landlord expressed its understanding of the resident’s need to complain, given the calls she made on 7 July 2020 which it had listened to. It acknowledged that calls had been cut off and not returned and that staff were unhelpful.
  7. The landlord explained that there were IT issues which caused problems with the calls, however, recognised that the resident also had to make several calls to the out of hours service, including late into the night, who then took longer than expected to arrive. The landlord apologised for what had happened and said that feedback had been passed onto the Team Leaders of the individual staff members concerned.
  8. On 30 and 31 July 2020 the resident requested escalation of her complaint to stage two of the landlord’s complaints procedure.  The resident stated that while she understood there were issues with the phone lines, no attempts were made to call or text her back and that she had emailed and received no response, particularly given that the landlord was aware of how distressed she was by the situation.   
  9. The resident stated that the plumber who had attended to carry out the repair had left without saying anything.  She said that having noticed he’d gone, she’d called him and a woman had answered the phone and “had a go at her” about the long hours the plumber worked but said he would call her back, which he didn’t.  The resident then telephoned the landlord’s repairs line, she was told that the job had not been logged with it and was given no advice or further information. With no information as to outstanding issues, the resident had assumed the repair had been carried out but it hadn’t been and she’d being woken up to the kitchen being flooded by her overflowing sink.
  10. The resident was dissatisfied with the landlord’s response, stating that it was human waste that had come into the property and as resolution to her complaint, the resident wanted assurance that it was safe to inhabit, as well as an apology and compensation for the delay in remedying the issues.
  11. On 24 August 2020 the landlord attended the property to resolve a slow draining sink and bath at the property.
  12. On 9 September 2020, the landlord responded to the complaint at stage two of its complaints procedure. The complaint was not upheld.  The landlord said that in arriving at its determination it had reviewed the chronology of the case, the various correspondence and spoken to the relevant members of staff. It expressed its understanding with the resident’s frustration with the call centre but found that the repair was carried out in a reasonable period of time nonetheless and that communication was ongoing with the resident throughout. 
  13. The resident has stated that she is continuing to have problems with the drainage system, with water bubbling up.

Assessment and findings

  1. Once on notice, the landlord was required to carry out the repairs it was responsible for, within a reasonable period of time, in accordance with its obligations under the tenancy and in law.  The law does not specify what a reasonable amount of time is; this depends on the individual circumstances of the case. 
  2. In this case, the issue pertained to a backflow of water into the property, which would constitute an emergency situation.  The landlord’s repairs policy states that it will attend emergency repairs within 24 hours and where there is concern as to health and safety, within two hours.  It is not clear in this case, whether there was a risk to health and safety and the landlord has not addressed this in its complaints response.  If sewage was backflowing into the property then this would be the case, however, no evidence has been provided to this Service to confirm what it was and when or how it communicated this to the resident; assurance she asked for.
  3. In its stage one complaint response the landlord has acknowledged there was delay to the operative arriving, although at stage two, it has stated there was no delay. The landlord’s response at stage two is presumably in respect of the overall timescale to carry out the repair, rather than the operative arriving late on the evening in question, however, there was still ultimately delay, with it arriving three days later, as opposed to the two or 24 hours later, as set out in its policy. This is the case unless the repair constituted a routine repair, which the landlord has not commented on or explained.
  4. In terms of the telephone lines, problems with the system itself and IT are sometimes inevitable and it is unfortunate that this was the case when the resident called to report the issue.  It was inappropriate, however, for the landlord to not seek to contact the resident about the issue, having been made of aware of the need for repair.
  5. It was also inappropriate for the landlord’s staff to respond in an unhelpful way towards the resident in the face of a reported repair and in a state of distress.  Whilst the landlord has said that it would pass feedback onto Team Leaders, no evidence has been provided to this Service of this being done and any learning or feedback identified or action taken to help prevent a recurrence.  Similarly, no evidence has been provided with regards to the operative who attended late on the evening in question. 
  6. Notwithstanding the landlord uses a contractor to carry out its repairs, the contractor acts on behalf of the landlord and it is the landlord’s responsibility to ensure that learning is identified and changes and improvements made in situations were there were failings and/or inappropriate behaviour, as was the case here, in arriving later, leaving without comment and not calling back, after an unknown party answered the phone and “had a go” at the resident.
  7. Regarding the potential of an underlying larger problem, the jurisdictional section of this report sets out that historic matters cannot be considered, however, the resident has also stated that she reported similar issues in February and June 2020, which were unsatisfactorily resolved, which she believes then led to the further issue on 7 July 2020. Due to the absence of repair records, it is not possible to establish what issues exactly were reported and when and how the landlord responded in respect of these more recent reports referred to and the resident has indeed referred to ongoing issues.  It is the landlord’s response on 7 July 2020 however, which is the crux of the complaint and indeed led to it. 
  8. In terms of investigating the bigger issue and whether there are wider issues, the landlord has said a CCTV stack survey was carried out and the issue has been resolved, however, there is no information as to when this was done or the findings from that and the resident has referred to having ongoing issues.  This Service therefore cannot be satisfied – given the reference to reports in February, June and July 2020 and ongoing issues –  and in the absence of evidence supporting the actions taken to remedy the situation, that it has in fact been fully resolved.
  9. Lastly, in terms of complaints handling, the landlord responded to the complaint in good time at stage one, in accordance with its complaints policy and only very slightly over its timescale at stage two.  Sometimes complaints do take longer to investigate, however, it is good practice for a landlord to advise a complainant of this, which there is no evidence it did in this case.
  10. Regarding the learning from the complaint, the landlord has not demonstrated that it has sufficiently identified what went wrong in terms of the staff handling of the situation on 7 July 2020, including its operative. The landlord also did not clarify whether or not the waste was human waste and seek to reassure the resident that it was not, presuming that this was the case. This was something that the resident had specifically asked for as an outcome to her complaint.  Responding to a complaint provides a landlord the opportunity to demonstrate that it has heard and understood the complainant’s concerns and a chance to put things right and the landlord did not seek to fully do this.
  11. Compensation is not an automatic right and a landlord is not obliged to provide it. The landlord did accept, however, that its staff were unhelpful and that the operative on 7 July 2020 arrived late.  There was also delay to resolving the matter, as discussed above.  The landlord was able to use its discretion to offer the resident compensation in accordance with its complaints policy and it did not.
  12. In acknowledgement of the delay and distress caused, in addition to the time and trouble taken by the resident to get the issue resolved, in particular the number of calls and the failures of the staff, it would have been reasonable for the landlord to consider a compensation offer as part of the resolution to the complaint.  This was also an aspect of resolution requested by the resident, which was not commented on by the landlord. The landlord did apologise for the issues, which was appropriate, but it did not go far enough to provide reasonable redress overall.

Determination

  1. In accordance with paragraph 54 of the Scheme, there was service failure in respect of the complaint. 

Reasons

  1. There was service failure, insofar as the landlord failed to carry out the repair within a reasonable period of time and in the absence of records and reports of ongoing problems, the landlord has not demonstrated that it has sufficiently investigated and resolved the issue.
  2. The landlord failed to respond to the complaint appropriately, in not addressing the resident’s concerns and where relevant, seek to reassure her and has not demonstrated sufficient learning or fully addressed the issues and requested outcome.

Orders and recommendations

Orders

  1. The landlord to pay the resident £150 compensation, comprised of:
    1. £50 for the issues with staff response to the resident on 7 July 2020, including the call centre staff and the operative who attended late, causing delay and distress.
    2. £50 for the failure on the part of the landlord to demonstrate that it has sufficiently investigated and resolved the issue.
    3. £50 for the service failures found in its complaints handling, incorporating acknowledgement of the resident’s time and trouble.
  2. The landlord to speak with the resident about the ongoing issues she has reported; for it to carry out a full and thorough investigation and identify actions based on this, where relevant, to be completed in a reasonable period of time.

Where the landlord has already carried out a thorough investigation of the issue, for it to provide evidence of this to this Service and to explain to the resident what it has done, what it has found and why she might be experiencing the issues she says she is.              

Recommendation

  1. The landlord to provide feedback and training to the members of staff and/or teams concerned.