Birmingham City Council (202203594)

REPORT

COMPLAINT 202203594

Birmingham City Council

13 March 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

1. The complaint is about the landlord’s response to the resident’s reports about a sewage spill that took place in a communal area.

Background and summary of events

2. The resident is a secure tenant of the landlord at the property, a one-bedroom ground floor flat. The tenancy agreement started on 18 March 2013.
3. On 3 February 2022 a sub-contractor employed on behalf of the landlord, attended an adjacent flat in the block to empty a portable toilet temporarily installed in that property for the use of another tenant. While completing this task, the contractor accidentally spilt some of the raw sewage contained within the portable toilet in a communal area outside the resident’s property.
4. The sub-contractor advised the resident that a specialised clean-up of the affected area would be booked to remove the sewage and make good the area. The resident was later informed that the responsibility for cleaning up the sewage spill lay with the landlord, not the contractor.
5. The resident contacted the landlord by telephone on 7 February 2022 to make a complaint about the sewage spill. He complained of the smell, which he described as “awful”. He further complained that this was the third witnessed occasion that a sewage spill had occurred during the servicing and emptying of the portable toilet. He stated that on one occasion the spill was cleaned up by another tenant. He questioned the processes and safety procedures of the contractor.
6. The landlord responded to the resident’s Stage 1 complaint on 9 February 2022, after liaising with the overall contractor employed to manage the service on the landlord’s behalf. It explained there was a delay to the clean-up due to difficulties with engaging a suitable sub-contractor to complete the works.
7. The clean was scheduled for and completed on 28 February 2022. The resident remained dissatisfied, primarily due to the potential risk to his health and the delay. In his Stage 2 escalation request to the landlord, he stated “We have been severely let down… in all regards to this matter, the time frame alone shows that this hasn’t been treated as an emergency as we are still enduring this very foul offensive smell”. He requested the replacement of the whole affected carpeted area and questioned why there was not a clear process in place to deal with issues of this nature.
8. The landlord responded and, while apologising for the delay and inconvenience, explained that it had been advised that the carpet had been professionally cleaned twice and met health and safety criteria.

Assessment and findings

9. The resident first reported the sewage spill to the landlord on 7 February 2022. The landlord’s initial response was both timely and appropriate. It made contact swiftly with the overall contractor which had subcontracted the servicing of the portable toilet.
10. The contractor explained that they had experienced difficulty securing a firm capable of completing a specialist clean of the affected area. The first company they approached had no capacity and had informed the landlord that they had passed the job to a second cleaning firm. There was no timeline given for when the clean might be expected to take place at this stage. Instead, the contractor informed the landlord that the resident would be contacted by the cleaning company when it had availability.
11. The landlord apologised to the resident on 9 February 2022 and communicated the response from the contractor. It did not set out a timescale or detail any additional actions that it would take itself to try to resolve the issue.
12. The landlord, having contracted out the responsibility for the portable toilet, remained fully responsible for resolving any issues arising from the works. It is the Ombudsman’s view that the landlord failed to take ownership of the problem at this point, preferring simply to relay messages from the contractor rather than engaging with the question of what it could do itself to accelerate the timeline or address the resident’s concerns about the potential health hazard associated with raw sewage.
13. Given that the carpet was damaged and needed to be made good, the landlord’s Repairs Policy can reasonably be considered to apply in this situation when assessing the landlord’s response. This policy states that “urgent repairs” should be resolved “within 1-7 working days” and “routine repairs within 30 days”. The landlord has not disputed that it was responsible for resolving this issue, whether it was classified as a repair or not, and it clearly had a responsibility to ensure that communal areas were safe and fit for use.
14. There are clear health and safety concerns associated with a raw sewage leak, alongside the obvious distress caused by the smell. Further, while not within the resident’s property, the leak was in a communal area outside and he would have had to pass through the area to enter or exit the building. In addition, neighbouring tenants would also have been affected by this hazard.
15. The landlord’s approach here does not appear to have been fair or reasonable. It was fully aware of the sewage spill and of the distress that it was causing the resident as he clearly explained this in his Stage One complaint on 7 February 2022. However, it did not take proactive steps to address the delay and instead simply accepted the response from the contracting company without challenge. There was no attempt on the part of the landlord to clarify the expected timescale or to chase the contractor to provide a more timely service. In total the sewage spill remained untreated for 27 days, which, in the Ombudsman’s view, was unacceptable.
16. The resident is also dissatisfied because the carpet had not been replaced but had instead been cleaned. The resident maintains that the carpet has only been cleaned on one occasion. The contractor informed the landlord that the carpet had been professionally cleaned twice. There are no records of either clean or any subsequent inspection that would confirm that the carpet complies with relevant health and safety criteria.
17. The Ombudsman is not in a position to assess whether the carpet needs replacing or not. Additionally, the Repairs Policy states that “It should be noted that it is not an obligation of the Council to restore whatever décor existed but to leave the property in a condition of decorative repair” However, there are no records of any relevant inspection or the cleaning process used on the carpet. The landlord appears, from the available records, to take at face value the contractor’s assurance that the carpet is safe and does not pose an ongoing risk. There is no evidence that it was checked by the landlord or that any inspection report (if it exists) was examined and verified.
18. The Ombudsman is therefore unable to conclude that the cleaning of the carpet was acceptable and to the required standard. Raw sewage remained on a carpet for almost a month and the Ombudsman considers that a further independent inspection of the carpet is required to establish whether or not it meets all relevant health and safety criteria.
19. Further, there was a failure on the part of the landlord to retain records in relation to the incident. It has provided full repairs records for the property and the block of flats in question, but these make no reference to the incident or subsequent clean-up. Crucially, there are no retained records of the professional clean and later inspection of the carpet that confirmed it complied with all health and safety requirements.

Determination (decision)

20. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in relation to the landlord’s response to the sewage spill in a communal area at the property.

Orders and recommendations

Orders

21. The landlord to ensure that a further inspection of the carpet take place, to be completed by a different contractor to those that have previously been involved in the case, or by a landlord surveyor.
22. The landlord to pay £100 compensation to the resident in recognition of the distress and inconvenience caused by the sewage spill.
23. The landlord to evidence compliance with the above orders to this Service within 28 days of this investigation report.