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City of Westminster Council (202339729)

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REPORT

COMPLAINT 202339729

Westminster City Council

30 January 2025

 

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 resident’s complaint is about the landlord’s management of works to address blockages in the communal drains.
  2. The Ombudsman has also considered the landlord’s associated complaint handling.

Background

  1. The complaint has been made by the leaseholder of the property, who is referred to in this report as ‘the resident’. The resident’s tenants occupy the property, which is a basement flat. The resident employs an agency to manage the tenancy. The landlord is a local authority.
  2. On 28 February 2023, the resident’s managing agent reported a blocked drain to the landlord. Its contractor cleared the drains on 1 March 2023 and recommended a CCTV survey should be conducted to determine whether the drain had collapsed. The managing agent reported to the landlord that the drain was blocked again on 11 March 2023. The landlord’s contractors cleared the drains with a tanker on 4 occasions during April 2023. The landlord submitted a section 20 notice in May 2023 in relation to works that would provide a longer-term solution.
  3. The resident raised a complaint about the landlord’s handling of the blocked drains on 26 June 2023, in which he stated the following:
    1. The issue remained unresolved despite numerous phone calls and emails by the managing agent to the landlord and its contractors.
    2. The delay had resulted in significant inconvenience for his tenants, who had been unable to use their shower or WC facilities properly and were considering moving out of the property.
    3. The situation had prompted the managing agent to demand higher fees or seek another company to manage the property.
    4. The lack of cooperation and coordination from the landlord was disappointing, particularly considering the substantial annual service charge.
    5. The landlord should appoint a dedicated individual to address the matter with urgency and pay the tenants and managing agents’ compensation for the difficulties experienced.
  4. The landlord issued its stage 1 complaint response on 28 July 2023. The landlord upheld the complaint, and stated that:
    1. There were delays in agreeing a quote for the works and in requesting for a section 20 notice to be sent.
    2. It had failed to provide the resident with regular updates for which it apologised.
    3. The repairs team would be monitoring the progress of the repair and had organised for the drains to be emptied on a regular basis. A longer lasting repair would be completed once the works had been approved.
    4. It offered £60 compensation to the resident, made up as follows:
      1. £20 for poor communication
      2. £20 for the delay in progressing the section 20 notice.
      3. £20 for the late stage 1 complaint response.
  5. The resident raised his complaint with the Ombudsman on 6 February 2024 and stated that the drainage issues remained ongoing. The resident said that works eventually began but had to be halted due to the discovery of asbestos and that no further action had been taken since. The Ombudsman contacted the landlord to request the complaint be escalated to stage 2 of the complaints process.
  6. The landlord issued its stage 2 complaint response on 6 August 2024, in which it:
    1. Stated that a survey carried out on 25 July 2024 had identified further asbestos and timescales for repairs would be confirmed on receipt of the structural engineers’ advice.
    2. Concluded that the delays in progressing the works were unacceptable.
    3. Advised the resident how to make a claim via its public liability insurance. The landlord also stated that it could not reimburse increased management fees under its compensation policy.
    4. Offered £750 additional compensation, made up as follows:
      1. £150 for poor complaint handling.
      2. £600 for the delay in resolving the drainage issue which was first reported in February 2023.
  7. On 9 September 2024, the resident asked the Ombudsman to investigate his complaint. On 9 October 2024, he stated the following:
    1. The drainage issues had not been resolved and the property was at risk of flooding if the drains were not cleared daily.
    2. The landlord had not provided any solution to when or how the problem would be fixed, and it last updated him in July 2024.
    3. His tenants had been affected due to health hazards and foul smells of sewage.
    4. He was suffering financial loss as he had been unable to increase the rent and was paying increased agency fees. He could not sell the property due to the problems and his tenants were threatening to sue him directly.
    5. In order to resolve the complaint, the landlord should fix the drains and pay further compensation.
  8. On 10 January 2025, the resident told the Ombudsman that the works remained outstanding. He said that the landlord had recently informed him that a contractor had been appointed, and the works would start within a few weeks.
  9. The landlord informed the Ombudsman that a visit to the property took place on 27 January 2025 and its contractor identified safety concerns. It concluded that further works were required to excavate the area and re-install the safety scaffold, so that the pipe repairs could be carried out.

Assessment and findings

Scope

  1. The Ombudsman acknowledges the resident’s position that the delay in repairs has led to financial loss as he has been unable to increase rent charges and has paid increased fees to the managing agent. However, it is not possible in this case for the Ombudsman to determine legal liability or order the landlord to compensate the resident for damages. We cannot make the same findings that a court would. We do not make binding decisions on matters such as negligence or liability and we do not make orders of compensation in the way that a court may order a payment of damages. Therefore, it would be more suitable for the resident to pursue a claim for financial loss through an insurance claim or the courts.
  2. When considering compensation for distress and inconvenience, this Service is not able to consider any distress and inconvenience experienced by the resident’s tenants as they do not have a landlord tenant relationship with the landlord. We can only look at complaints by those who have a landlord tenant relationship with a landlord who is a member of the Ombudsman’s scheme. However, we have assessed whether the landlord should pay additional compensation for any distress and inconvenience caused directly to the resident.
  3. The Ombudsman also acknowledges the resident’s comments that the issue was a health hazard and that his tenants have been affected by this. However, it is beyond the remit of this service to determine whether there was a causal link between any action or inaction by the landlord and any damage to the tenants’ health.

The landlord’s management of works to address blockages in the communal drains.

  1. The lease states that the landlord is responsible for keeping in good and substantial repair and condition all sewers and drains for the purpose of draining away water and soil.
  2. The landlord’s repairs policy (dated September 2024) states that it gives every repair job a target date using the following categories:
    1. Immediate repairs are those that pose an immediate risk to health and should be attended within 24 hours.
    2. Urgent repairs are those that negatively impact on an occupant’s access to utilities, such as a blocked sink or bath, and should be attended within 7 working days.
    3. Non-urgent/routine repairs are those that pose no threat to occupants and/or may require substantial repairs and should be attended within 28 working days.
  3. Under Section 20 of the Landlord and Tenant Act 1985 a landlord is required to consult with a leaseholder before it undertakes any work which will cost a leaseholder more than £250, including repairs, maintenance and improvements to the building and estate their property is situated. Leaseholders have the right to respond to a section 20 notice up to 30 calendar days from the date of the notice, and the landlord must reply to any observations within 21 calendar days.
  4. The landlord’s contractor conducted a CCTV survey on 17 March 2023 and identified a drainage collapse. It stated that it would need to re-attend once or twice a week to empty the drains with a tanker. An asbestos survey was conducted on 5 May 2023 and the report, dated 11 May 2023, identified 1 asbestos item. The landlord’s contractor provided a quote for works to repair the drainage on 16 May 2023. This included excavating the basement floor to replace the defective pipework. The landlord issued a section 20 notice to the resident on 30 May 2023, which detailed the required repairs. In its stage 1 complaint response, the landlord appropriately identified a service failure due to delays in agreeing the quote and in requesting for a section 20 notice to be sent. The landlord’s contractor completed the asbestos removal on 6 June 2023.
  5. The landlord has not evidenced that it took any further action to progress the repairs until September 2023, which was almost 3 months later. On 1 September 2023, it informed the managing agent that it had alerted the drainage contractor, its asbestos team and its surveyor to the drainage issue, and that a controlled dig was required in case further asbestos was uncovered, following which the contractor could carry out the pipe repairs. The landlord did not provide any timescales for works to begin. The managing agent contacted the landlord on 25 September 2023 and said that it had received no updates about resolving the drainage issue. The landlord ought to have taken proactive steps to progress the repairs and provide regular updates to the resident and/or managing agent, along with timescales. The further delays and poor communication constitutes a failure by the landlord.
  6. The landlord’s surveyor attended the property with the managing agent on 3 October 2023. The landlord’s emails following this visit reflect that further specialist asbestos removal was required as the problem was worse than initially thought. The landlord’s stage 2 response indicates that an asbestos contractor and structural engineer attended the property on 27 October 2023. While this was an appropriate action, no records of this visit have been provided to the Ombudsman, and the landlord identified that that no further repairs instruction was given following this meeting, which led to continued delays.
  7. The landlord has not provided clear evidence that it took appropriate action to progress the repair between November 2023 and June 2024. The evidence provided by the landlord shows that works orders were raised for the building during this time period however, it is unclear whether any of these related to works to the drainage issue.
  8. The managing agent requested an update on 30 May 2024, and the landlord advised that the repairs were with the asbestos team and that nothing further could be done until the asbestos had been removed. While complex repairs may reasonably take longer to complete than the timeframes set out in the repairs policy, the landlord should still ensure that it takes a proactive approach to ensuring that repairs are completed within a reasonable timeframe. However, the significant delay in action being taken to progress the repair was not reasonable.
  9. Emails from June 2024 indicate that the landlord had appointed a contractor to carry out the asbestos removal. The asbestos contractor and structural engineer visited the property on 2 July 2024 and made recommendations for works required to expose the pipe. A further asbestos survey was completed on 25 July 2024, which identified asbestos. In its 6 August 2024 stage 2 response, the landlord stated that it would confirm timescales for the complex repairs following receipt of a structural engineer’s advice.
  10. The evidence indicates the delays continued and on 18 October 2024, a quote for the survey was received and authorised by the landlord. The report was received on 31 October 2024 and related to structural supports needed to complete the drain repairs. The landlord noted that further safety advice was required. On 28 November 2024, the landlord stated that it would programme the works for early January 2025. However, as referred to above, on 27 January 2025, the landlord’s contractor advised that additional measures should be taken to make the area safe, before the pipe repairs can take place.
  11. In conclusion, the Ombudsman understands that the repairs were complex and therefore could not have been completed within the 28-day timeframe for routine repairs. It is also noted that delays were caused due to the presence of asbestos and because the landlord needed to take steps to ensure the job can be carried out safely. However, there were clear failings by the landlord to undertake a coordinated approach which resulted in significant delays, in excess of what was reasonable. Almost 2 years have elapsed since the initial reports about the issue and the repairs remain outstanding, despite the landlord identifying failings in the July 2024 stage 2 response. This amounts to maladministration by the landlord.
  12. Where there are failings by a landlord, the Ombudsman’s role is to consider suitable whether remedies have been offered in line with the Ombudsman’s Dispute Resolution Principles: be fair, put things right, and learn from outcomes.
  13. The resident experienced distress and inconvenience due to the delays in resolving the issue and due to the poor communication from the landlord. The landlord did arrange for the drains to be cleared on a regular basis which would have helped to mitigate the impact of the repairs issue. However, it is noted that the resident told the Ombudsman that the drain clearing was not carried out often enough.
  14. The landlord acknowledged that there had been delays in progressing the repairs and made efforts to ‘put things right’ by offering the resident a total of £640 compensation within its stage 1 and 2 complaint responses. However, further compensation should be paid to the resident to account for the ongoing delays following the stage 2 response. An order has been made below for the landlord to pay the resident an additional £200 compensation. The total amount of £840 is in accordance with the Ombudsman’s remedies guidance for failures which had a significant impact on the resident. A further order has been made below for the landlord to carry out the repairs.

The landlord’s complaint handling

  1. The landlord’s complaints policy states that it will acknowledge complaints within 2 working days, provide stage 1 responses within 10 working days and stage 2 responses within 20 working days. The policy states that some complaints may need longer to investigate and where this is the case, a response will be sent to the resident explaining a reason for the delay and when they should receive a full response.
  2. The Ombudsman’s Complaint Handling Code states that any extension must be no more than 10 working days at stage 1 or 20 working days at stage 2 without good reason, and the reason must be clearly explained to the resident.
  3. The resident raised his complaint on 26 June 2023. The landlord wrote to the resident on 14 July 2023 and advised that it needed additional time to provide the complaint outcome, and that a response would be issued by 24 July 2023. The landlord issued the stage 1 response on 28 July 2023. The landlord apologised for the delay in providing the stage 1 complaint response and offered £20 compensation. This was reasonable to remedy the failing identified.
  4. The resident escalated his complaint via the Ombudsman, and we contacted the landlord on 23 April 2024 to request that it provide a formal response to the resident by 22 May 2024. The landlord wrote to the resident on 21 May 2024 and said that more time was required, and that a response would be provided by 17 June 2024. The landlord wrote to the resident again on 4 July 2024 and gave a new response date of 18 July 2024. The landlord issued its stage 2 complaint response on 6 August 2024. As per the Code, it was reasonable for the landlord to extend the deadline once however, it further extended the deadline and then did not adhere to the date it had provided. The landlord acknowledged this delay and offered a further £150 compensation, which was sufficient to redress the failings identified.

 

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration regarding the landlord’s management of works to address blockages in the communal drains.
  2. In accordance with paragraph 52(b) of the Housing Ombudsman Scheme, the landlord has offered redress that was reasonable to resolve the complaint handling failings.

Orders

  1. Within 4 weeks of the date of this report, the landlord is ordered to:
    1. Pay the resident £1,010, which comprises:
      1. £810 already offered to the resident within its stage 1 and 2 complaint responses, if this has not already been paid.
      2. £200 for the distress and inconvenience caused due to the ongoing delays in completing the repairs.
      3. This should be paid directly to the resident and not offset against any monies owed unless the resident states otherwise.
    2. Compile a schedule of works to address the drainage issue, which should be provided to both the resident and the Ombudsman. The schedule should include timeframes for the repairs which should then be adhered to. The landlord should notify the resident if these timeframes cannot be adhered to and provide updated dates for completion. The landlord should confirm to the Ombudsman once the works have been completed.
    3. The landlord must provide evidence of compliance with the above orders to the Ombudsman.