Southwark Council (202227200)

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REPORT

COMPLAINT 202227200

Southwark Council

29 November 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

  1. The complaint is about the landlord’s handling of repairs needed to the communal drains.

Background

  1. The resident is the leaseholder of a flat in a block owned by the landlord.
  2. The resident has lived in his flat since 2007. Suddenly, in 2020, he experienced problems with raw sewage back-flowing into his bathroom through his toilet. This happened every time a neighbour flushed their toilet and re-occurred approximately every 4 to 6 months.
  3. On 3 February 2023, following the seventh occurrence of raw sewage flowing into his bathroom, the resident made a formal complaint. He said he had been trying to get resolution to a reoccurring blocked soil stack since April 2022. The last communication he had from the landlord was on 28 July 2022, advising him a technical officer would be in contact to give him an update on progress. He said he had heard nothing from it since and the problem had occurred again on the day. This suggested it had not permanently resolved the issue.
  4. The landlord issued its stage 1 response on 29 March 2023. It said it completed a CCTV survey 9 February 2023, which identified that follow up works were needed. This included an electrician removing an earth rod and then a “patch reline and descale”. It recommended the resident claim for damages to his belongings through his contents insurance. It gave details of its insurers to claim from if he had no insurance.
  5. The resident requested the escalation of his complaint on 20 July 2023, following a further incident of a back surge in the toilet. He said the landlord had not resolved the problem.
  6. The landlord issued its stage 2 response on 20 December 2023, stating that it completed part of the work to resolve the issue on 21 March 2023. However, there had been some delay since, because it had completed that work incorrectly and it had to wait for the materials to be supplied. It had finished all the work on 21 August 2023 and was satisfied the works completed were the resolution. A further incident since then, it concluded, was just a “standard blockage”. It would not re-configure the pipework but committed to attending to further blockages in a timely manner. It also acknowledged that its reply had significantly exceeded its complaint response time. It offered the resident £100 compensation for his time and trouble.
  7. The resident asked this Service to escalate his complaint, because the landlord had not found a permanent solution to the back-flow problem.

Assessment and findings

  1. The terms of the resident’s lease state that key responsibility for the maintenance of the structure of the block falls to the landlord, and this includes drains and sewers.
  2. The resident reported the first incident of a sewage back-flow from his toilet in October 2020. At the time of his formal complaint 03 February 2023, there had been 7 separate occurrences. Each time the issue was reported, the landlord determined that the cause was a blockage in the communal drain. It appropriately attended, jetted and cleared the drains each time, under its repairing responsibilities.
  3. The resident had lived in the property for 13 years with no problem with the drainage, and suddenly it was occurring regularly. By the third report of back-flow, it should have been apparent that there might be more going on. The jetting had not resolved the issue on 2 previous occasions. It would have been appropriate at this point for the landlord to investigate what was causing the issue. Instead, it continued to respond reactively, which caused ongoing detriment to the resident.
  4. In his formal complaint of 3 February 2023, the resident stated that he had made a complaint the previous year. Following this, the landlord agreed to a CCTV inspection of the drains. His last correspondence from the complaints team was on 28 July 2022, which advised that the technical team would give him an update on progress. He had heard nothing since and the back-flow problem had occurred again that day.
  5. The landlord’s stage 1 response said that it contacted the contractor for an update on the CCTV, which implied that it had previously requested an inspection of the drains. There was no evidence that showed action for exploratory works begun prior to the resident making his formal complaint. This was not reasonable. There was no reason this could not have been carried out sooner.
  6. The landlord sent drainage specialists to carry out a CCTV survey of the drainage system on 9 February 2023, 6 days after receipt of the resident’s complaint. On 22 February 2023, they submitted a report to the landlord. The footage identified a fault, a protruding rod eye. The contractor appropriately recommended follow up works. This included commissioning a lightning protection engineer to remove the rod, followed by the drainage contractor descaling and completing a patch reline to the drain.
  7. The landlord’s stage 1 response notified the resident of the findings and advised that it had booked the lightning engineer for 4 April 2024. This was in accordance with its repairing obligations and met its repairs policy response time of 20 working days.
  8. The resident made a request for the escalation of his complaint on 20 July 2023 following a repeat occurrence of the back-flow problem into his bathroom. The stage 2 investigation found that the works identified from the survey on 9 February 2023 had not been completed. The landlord explained that the contractor had removed the rod eye on 4 April 2023, but did not know that they had not completed it correctly until the second stage of the works were due to start on 18 August 2023. This caused a 3-day delay, as the job was moved back to 21 August 2023.
  9. Under the landlord’s repairs policy, it should have completed the follow-up repair within 20 working days (04 May 2023). The contractor not attending until 18 August 2023, was a response time of 95 working days (4 April to18 August 2023), which was not explained or accounted for. This response time increased to 96 working days when added to the postponement till 21 August 2023, which was not reasonable. Had the works been completed on time in May 2023, the incident of back-flow the resident endured again on 29 June 2023 could have been prevented.
  10.  Despite the landlord completing all the necessary work on 21 August 2023, the resident reported a further occurrence of the back2-flow issue on 11 September 2022. The landlord attended and cleared the drain the same day, which was reasonable. However, it was evident the works completed had not provided a permanent solution.
  11.  In its stage 2 response on 20 December 2023, the landlord said that it was satisfied the repairs carried out to the main drain in August had resolved the problem. It put the re-occurrence in September 2023 down to a standard blockage. It explained that in discussions on 18 December 2023 the drainage specialist had identified that the communal drain ends outside the resident’s flat. This means his flat is the first to be affected if there is any blockage in the drain. It advised that it is “standard” for an end of line drain to block 3 to 4 times a year. It committed to investigating any further blockage in more detail (for oil or wet wipe disposal) should it occur again. If it was the case, it would remind all residents in the block of the correct way to use the drainage. It said it was not an option to reconfigure the drains for a permanent solution.
  12.  Understandably, the resident was not happy with the landlord’s final outcome. It had not found a permanent solution and effectively he was told he would have to live with the problem. This was not reasonable as it was a serious problem. If the resident was renting this property, the back-flow issue would be classed as a category 1 hazard. This impacts a rented property’s fitness for human habitation, which the landlord would be statutorily obliged to resolve. That the legislation does not apply to a leasehold property does not mean a hazard or risk does not exist. Its repairing obligations to the structure and communal fixtures under the terms of the lease still applied, and it had not resolved the problem.
  13. In correspondence to this Service, the landlord has explained that in order to fix the issue it needs to fully reconfigure the pipework, which would require work to the whole block and adjoining public sewer line. This would involve decanting all the residents from the block, causing extensive disruption. It was also anticipated that this would cost hundreds of thousands of pounds, which it could not justify for 1 toilet overflowing 3 to 4 times a year.
  14.  The Ombudsman would consider the landlord’s decision not to progress with the reconfiguration of the drains as reasonable, as it is not a cost effective or proportionate solution to the problem. A social landlord must make the most effective use of its limited resources for the benefit of all its residents. As such, it was within its rights to make this decision. It is not appropriate, however, for the landlord to expect the resident to live indefinitely with the stress and inconvenience of raw sewage backflowing into his property 3 to 4 times a year.
  15.  It would have been appropriate for the landlord to explain to the resident why the solution of reconfiguring the drains was not being considered. In not doing so, it portrayed itself to the resident as being unhelpful and uncaring.
  16.  An update from the resident confirmed he has experienced 2 more occurrences of the problem this year, 2024, and since the landlord’s final stage response.
  17.  The landlord has repairing obligations under the terms of the lease and is required to provide a solution. It is noted that the drainage system worked perfectly well for 13 years while the resident lived there. This does not support the theory that the problem is with the design and that a complete re-configuration is required. Removal of the protruding eye rod has mitigated some of the problem. There could be further faults like this developing in the communal drainage system as it is aging. The landlord could explore this further.
  18.  If it is not cost effective to investigate any other potential faults, the landlord should, as a minimum, be considering preventative measures as opposed to reactive ones to alleviate the problem. It would be reasonable to set up a program of jetting and clearing the communal drains regularly, before it builds up and disperses into the resident’s flat rather than after.
  19. The landlord’s final position on the matter was that it had acted in accordance with its policies and procedures and met the relevant timescales. It accepted inconvenience had been caused to the resident because it had exceeded the complaint response target time significantly, so it awarded him £100 for time and trouble, which was reasonable for the scale of the delays.
  20.  Overall, the landlord had reacted to each report of back-flow in a timely manner and cleared it, which met with its repairing obligations. It did also eventually carry out further investigations and complete the work recommended.
  21. The landlord did not, however, recognise that it should have done more to resolve the problem sooner. Neither did it acknowledge in either of its complaint responses that it was responsible for significant delays in progressing exploratory work and carrying out the associated repairs. Furthermore, it did not accept that it had not resolved the substantive complaint. As a result, it has not apologised to the resident, offered him any redress or appropriately put the matter right, all of which amount to service failure.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of repairs needed to the communal drains.

Orders

  1. The Ombudsman orders that, within 4 weeks of the date of this report, the landlord should provide evidence to this Service of compliance with the below. The landlord should:
    1. Send a written apology to the resident for the failings identified in this report.
    2. Implement a planned program of jetting and clearing of the communal drains at quarterly intervals (3 monthly).
    3. Pay the resident the sum of £600 compensation for the failings identified in dealing with the drainage repairs.