Southwark Council (202107100)

REPORT

COMPLAINT 202107100

Southwark Council

22 May 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

This complaint is about the landlord’s handling of:
1. Reports of a back surge into the resident’s kitchen sink from the outside drain.
2. The resident’s complaint.

Background and summary of events

Background

The resident is a secure tenant of a local authority landlord. The tenancy started in August 2016. The property is a two-bedroom, ground floor flat and it is managed by a tenancy management organisation (TMO). The landlord is ultimately responsible for the actions of the TMO. Therefore, this report refers to the landlord throughout.
The landlord said it has no vulnerabilities recorded for the resident. The resident informed this Service that she is disabled, requires regular hospital treatment, and has anxiety and depression.

Scope of investigation

The resident alleged the landlord was prejudiced and discriminatory within her correspondence with this Service and within her emails with the landlord. We cannot determine whether discrimination has taken place, as this better suited for a court to decide. However, we can look at whether the landlord responded fairly and appropriately in its communication with the resident when dealing with the substantive issue and the complaint.
It is noted that the resident had raised several complaints with the landlord during the landlord’s complaint process. This report is focused on the complaint points the resident confirmed were unresolved to this Service in December 2021, as specified in paragraph one.

Policies and procedures

Section 11(a) of the Landlord and Tenant Act 1985 states that landlords have a duty to keep in repair the structure and exterior of its properties, including drains, gutters, and external pipes.
The landlord’s repair policy states that urgent repairs (such as a blocked drain) will be attended to within three working days and non-urgent repairs will be completed within twenty working days.
Under the landlord’s compensation policy, it can award compensation of up to £20 per week for delays and £20 a week for distress, up to a maximum of £1000 per year for each. It can also offer up to £250 to recognise the time and trouble a resident experienced getting a resolution to their problem, and up to £50 if the landlord misses a repair appointment.
The landlord has an ‘early resolution’ phase within its complaints policy. If matters are not resolved informally, they enter a two-stage complaints process. At stage one (the ‘complaint phase’), a response will be issued within 15 working days. At stage two (the ‘review phase’), a response will be issued with 25 working days. The policy states it may issue a final response at the complaint phase so there is no need for the complainant to go through the review phase.

Summary of events

In November 2020, the resident reported a bad smell coming from her kitchen sink due to a back-surge from the outside drain. She said this happened a few times over the years and was previously resolved by cleaning the outside drain. The landlord said this did not fall under its responsibility and said it would only attend if the drain was blocked. It advised the resident to purchase an “off the shelf” product to remedy the drain smell.
Following a conversation with the resident, the landlord arranged for a plumber to attend on 24 November 2020 to investigate the problem. It reiterated that if the drain required cleaning, it would be the resident’s responsibility and it would only carry out remedial works if the drain was blocked. The landlord said that while it appreciated the resident’s frustration with the situation, it felt the resident ought to be more civil. It said its staff are entitled to work in a safe environment and that does not include unpleasant interactions. It said it was reluctant to enforce the terms of her tenancy agreement, but it might be an option if it continues to have similar interactions with the resident.
There is no record in the repair log for 24 November 2020, so it is unclear whether this appointment took place.
The resident raised a formal complaint to the landlord on 23 December 2020. She said:
1. The landlord was causing her to suffer through harassment, disability discrimination and racial discrimination.
2. She had tried to take her life due to the ongoing problem.
3. She felt hostility from the officer when she reported a bad smell coming from the kitchen sink due to the outside drain.
4. She was insulted by the email she received about her behaviour and said the officer called her rude on the phone.
5. A few days later, she noticed a saliva spit and a liquid stain on her front door.
6. She suffers from anxiety and depression, and she is worried about receiving backlash every time she reports a repair.
The resident emailed the landlord on 26 March 2021. She said she had been complaining since last year about the back-surge from the outside drain into her kitchen sink and provided a photo. The landlord acknowledged the email the next day and said the new resident services officer will order the repair. The repair log shows a repair request was raised on 29 March 2021 to investigate and remedy the problem. The record is marked as complete; however, it is not clear what action (if any) was taken.
On 6 April 2021, the resident followed up with the landlord. She said her kitchen sink was not blocked but the smell was unbearable. She emailed the landlord again on 4 May 2021 asking for the outside drain to be cleaned, explaining a back-surge occurred three or more times a day. The landlord acknowledged her email.
There is an entry on the repair record dated 11 May 2021. This says the drain was inspected and was free flowing. Further investigations were recommended. It was recorded that the property services manager received an email saying the issue was resolved by major works, and so the repair record was marked as complete. This Service has not seen a copy of this email or any information to evidence how this was resolved.
The resident emailed the landlord again on 15 June 2021, explaining the problem was ongoing and the bad smell was unbearable and exacerbating her health issues. The landlord responded a week later and explained that following a previous inspection in May 2021, the drain was found to be free flowing. However, it was carrying out further investigations to determine the cause of the smell and the back-surge. It said it would update the resident once it received more information from its repairs team.
A stage one complaint response was issued on 8 July 2021. It said it was pleased the problem with the bad smell was rectified. It confirmed the repairs team recently attended and found the drain and kitchen sink to be free flowing without any issue. It said the previous officer had left the organisation and so it cannot proceed further with the allegations made against them. It said the saliva at the door was disturbing, but without proof of the perpetrator it was difficult to act. It acknowledged the resident’s concerns about discrimination and explained the organisation supports equal opportunities in all aspects of its service delivery, operation, and employment.
The resident replied on 28 July 2021. She said the problem with the sink was not resolved and she had been told further investigations were needed. She explained sewerage was coming back into the sink at least twice per day and she had a weak immune system. She felt her comments regarding the previous officer should not be brushed off.
This Service contacted the landlord on 13 August 2021 and asked it to provide a stage two response to the resident. We chased for a response on 16 September 2021, 29 September 2021, and 11 October 2021.
Records show the landlord escalated the complaint to stage two on 8 October 2021. The landlord emailed the resident on 12 October 2021 requesting access to investigate the problem. It followed up by sending the resident a letter on 15 October 2021 requesting access so a drainage specialist could investigate and see if a foul interceptor could be put on the mains of the sewer pipe to resolve the problem.
The stage two response was issued on 12 November 2021. It said:
1. Works were completed in July and August 2020 regarding a leak. This included a full investigation in the kitchen where the pipes and waste were checked.
2. Access was attempted on 13 November 2020 to investigate an issue with the sink internally and externally. No access was recorded.
3. Another report was made on 29 March 2021 regarding investigating a back-surge but there were no notes explaining the action taken.
4. A further report was made on 11 May 2021 in which the drains were found to be free flowing. Further investigations were required to determine the cause of the smell.
5. It said there was a delay responding between 11 December 2020 and 11 May 2021. Compensation was awarded of £110, calculated at a rate of £5 per week, based on its minor impact tariff in its compensation policy, deducting the standard repair time of 20 working days.
6. It acknowledged its failure to record the resident’s formal complaint in December 2020 and the delays escalating the complaint to stage two. £100 compensation was awarded for the complaint handling failures.
The resident contacted this Service on 20 November 2021 and 7 December 2021, stating the problem remains unresolved. It is not clear from the evidence available whether the resident allowed access to the drainage specialist or what events took place after the stage two response was issued. It is outside of the Ombudsman’s remit for this Service to consider events after the complaint was duly made. As such, this investigation considers events up to 12 November 2021.

Assessment and findings

Where there are admitted failings by a landlord, the Ombudsman’s role is to assess whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this, the Ombudsman considers whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: be fair, put things right and learn from outcomes.

The landlord’s handling of reports of a back surge into the resident’s kitchen sink from the outside drain.

From reviewing the evidence available, it is clear the landlord repeatedly failed in its management and oversight of the investigation into, and repair of, the back surge experienced by the resident. Records show the resident initially reported the problem in November 2020. As of 12 October 2021 (when access was requested for a specialist to investigate the problem), the repair was unresolved for approximately 48 weeks. This is significantly outside of the landlord’s maximum repair timescale of 20 working days. The Ombudsman recognises the detriment this had on the resident.
The Ombudsman finds it concerning that when the resident first reported the back surge, she was told a smelly sink is not the landlord’s responsibility and she, “needs to buy off the shelf items like Mr Muscle”. If sewerage was back-flowing into the property, it would be a health and safety issue that required swift investigation. The Ombudsman finds the landlord failed to treat the matter with the seriousness it required, even when the resident repeatedly made the landlord aware of her distress, discomfort, and the impact the matter was having on her health.
The Ombudsman observed that the landlord failed to communicate effectively with the resident throughout this case. The resident was not updated regularly and had to spend an unreasonable amount of time chasing for updates. The resident was not provided with an action plan of works with defined timescales, and it isn’t clear what repair appointments took place or what the outcome was. There were avoidable delays and a lack of urgency with returning to the property when the landlord was aware the problem was unresolved. There were delays responding to emails and the resident was left unsupported, even when she made it clear her living conditions were impacting her health.
After reviewing the evidence submitted to this Service, there was no evidence seen to indicate the landlord treated the resident differently based on her personal characteristics. However, the Ombudsman determines that the communication failings throughout exacerbated the situation, delayed the resolution of the substantive issue, and worsened the impact on a vulnerable resident.
It is unclear why the landlord concluded the issue had been resolved in May 2021. In the repair log, there is reference to the property services manager receiving an email saying the issue had been resolved by major works. A copy of this email has not been provided to this Service. Moreover, in June 2021 the resident made it clear the problem was ongoing. The Ombudsman is concerned about the landlord’s record keeping, since the records provided do not include all details of what happened at every repair appointment or full details about how the complaint was investigated, particularly at stage one. This Service expects landlords to keep sufficiently detailed records of repair attempts and of when repairs are completed. It is essential for the landlord to keep track of repairs for which it is responsible, to ensure it meets its repairing obligations. If we investigate a complaint, we will ask for the landlord’s records. If there is disputed or unclear evidence and no audit trail, we may not be able to conclude that an action took place or that the landlord followed its own policies and procedures. A separate order has been made to reflect this.
The Ombudsman notes that once the complaint was at stage two of the complaints process, the landlord took decisive action to attempt to resolve the main issue. It contacted the resident requesting access, so that a specialist drainage contractor could investigate and see if a foul interceptor could be put on the sewer pipe to resolve the problem. The Ombudsman finds it appropriate that the landlord outlined the next steps and a potential remedy to the resident. It is acknowledged that the landlord attempted different contact methods to try to facilitate the repairs at the earliest opportunity at this stage.
The landlord offered compensation of £110 within its stage two response for the delay between 11 December 2020 to 11 May 2021, calculated at £5 per week as per its compensation policy. It is unclear why it stopped in May 2021, as the resident had made it clear the back surge continued occurring after this date and the further investigations promised in May 2021 did not get arranged until the resident went through the complaint process. The Ombudsman’s remedies guidance (published on our website) states that awards of £250 to £700 might be appropriate where there has been considerable service failure or maladministration, but there may be no permanent impact on the resident. Considering the events outlined above, it is considered that the failures of the landlord would fall into this category. After considering all the information available, this Service concludes that the compensation offered of £110.00 for the distress and inconvenience caused by the delays is insufficient and not in line with the Ombudsman’s remedies guidance.
Overall, the landlord did not treat the resident fairly in the way it handled reports of a back surge from the drain outside into the kitchen sink. It acted with a lack of urgency and failed to keep the resident updated throughout. It did not consider her vulnerabilities or whether there was a health and safety risk. This constitutes maladministration.

The landlord’s handling of the resident’s complaint

The resident’s formal complaint provided the landlord with an opportunity to put things right and learn from outcomes. Complaint handling procedures should demonstrate that their purpose is to resolve disputes and restore the resident’s position if something has gone wrong. This generally means:
1. Identifying what went wrong and why.
2. Acknowledging what was the landlord’s responsibility.
3. Acknowledging the outcome sought by the resident.
4. Taking appropriate steps to remedy any service failure, considering the impact on the resident.
5. Identifying any learning points.
Within the stage one response dated 8 July 2021, it said that the issue with the smell from the sink was resolved. It is unclear how the landlord determined this as an email from the resident dated 15 June 2021, confirmed the matter was ongoing and exacerbating her health. Furthermore, the landlord told the resident on 22 June 2021 that investigations into the cause of the back-surge were still being investigated. This indicates that the landlord did not thoroughly investigate the substantive issue within the complaint or examine all available records. It also failed to tell the resident how she could escalate her complaint if required.
The landlord provided a stage one response 28 weeks after the resident made a formal complaint. The stage two response was issued 15 weeks after the resident escalated their complaint. This is outside of the timeframes set out in the landlord’s complaint handling policy (paragraph 9). It is also substantially outside of the response timescales within the Ombudsman’s Complaint Handling Code (the Code). The Code specifies a stage one complaint should be finalised in 10 working days, with a further extension of no more than 10 working days. A stage two complaint should be finalised within 20 working days, with a further extension of 10 working days if required. While this complaint pre-dates the Code, it serves to illustrate that the complaint was left outstanding for an unreasonable period. It is recognised that the landlord attempted redress by offering the resident £50 for the failure to acknowledge the complaint in December 2020 and £50 for the delay escalating the complaint. However, this does not proportionately reflect the considerable delay in the response at both stages and the lack of updates to the resident. This is a complaint handling failure.
Under the dispute resolution principals, the Ombudsman would expect to see that a landlord reflected on a complaint to identify learning points to ensure it continually improves the customer experience. The Ombudsman is not persuaded by the evidence available that the landlord has reflected on the resident’s experience and learnt from its errors. Overall, there were failings in the landlord’s handling of the resident’s complaint which meant that the complaints procedure was not used as an effective tool to resolve the dispute. Instead, it compounded the failings in the landlord’s handling of the substantive issue. The landlord’s failings in its complaint handling constitutes maladministration.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of reports of a back surge into the resident’s kitchen sink from the outside drain.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s complaint.

Reasons

The landlord failed to resolve the back-surge within the timescales stated in its repair policy. It did not act with a sense of urgency and did not appropriately consider the resident’s vulnerabilities. It did not effectively manage the repairs or keep detailed records.
The landlord delayed responding to the complaint at both stages and failed to keep the resident updated. It did not take sufficient action to put things right for the resident or evidence learning from its mistakes. Additionally, it did not make an offer of compensation that reflected the resident’s full experience.

Orders and recommendations

Orders

The landlord is ordered within four weeks from the date of this report to:
1. Pay the resident £500 compensation. This replaces the landlord’s offer of £210. If the landlord has already paid the resident £210, this should be deducted from the £500 ordered. The compensation is comprised of:
  1. £250 for the delays progressing the repair.
  2. £175 for the poor handling of the complaint.
  3. £75 for the record keeping failures.
2. Self-assess its complaint policy against the Housing Ombudsman’s Complaint Handling Code.
The landlord is to provide evidence of compliance with the above orders to this Service.

Recommendations

It is recommended that the landlord:
1. Reviews its staff training needs to ensure they appropriately record, investigate, and resolve complaints.
2. Updates its records to reflect the resident’s vulnerabilities, subject to any data protection requirements.