Harlow District Council (202008943)

REPORT

COMPLAINT 202008943

Harlow District Council

16 March 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 a blocked drain, specifically, the length of time it took to resolve the issue and its decision not to compensate the resident for damage caused to the property.

Background and summary of events

Policies and procedures

2. The landlord is responsible for repairs relating to drains. Its repairs policy states that the landlord aims to carry out emergency repairs in “under 24 hours”, with a blocked drain constituting an emergency situation. The same policy states that the landlord will recharge where a block has been caused by the inappropriate disposal of items.
3. The landlord has a three stage complaints procedure whereby the landlord aims to investigate and respond within 10 working days at stages one and two and where a resident remains dissatisfied with the landlord’s response and request escalation of the complaint to stage three of the process, within 15 working days thereafter.

Summary of events

4. On 2 August 2020 at 13:06 the resident contacted the landlord to report that when the neighbour above her property flushed their toilet, her toilet also filled up.  The landlord’s notes state that an operative attended at 13:30 to find the drain blocked and completed the job by 16:00. The job was completed with the landlord having requested a plumber to attend to help remove the manhole cover, which had not been removed since installation and jetters to attend as the drain could initially not be cleared as it was due to a blocked stack. The block was found to have been caused by one of the residents putting a mobile phone and pill packets down the toilet.
5. During the works to clear the drain, the resident reported, at 14:00, a backsurge of sewage into the property, which the landlord attended and advised the tenants above not to use their drains until the issue was resolved. The landlord has stated that the neighbours did not adhere to this, which caused more damage.
6. The landlord arranged for carpet cleaning in the resident’s property for the following day although she stated she was away, so this was carried out two days later, on 4 August 2020. On 5 August 2020 the resident’s dirty carpets were taken away by the landlord as a “gesture of goodwill”.
7. Following the incident, the resident contacted the landlord and its insurers on 3 August 2020 and correspondence about the issue continued until a formal complaint was logged on 24 September 2020.
8. On 10 August 2020 the resident was advised by the landlord that the responsibility for the drains lay with Thames Water. This information was later corrected, with the resident having contacted Thames Water in the meantime, who advised that it was not its responsibility as it had not “adopted” the drain.
9. Correspondence between the landlord and resident continued and, in emails to her of 4 and 11 September 2020, the landlord and its insurers declined to compensate for the damage, stating that it could not accept liability for damage caused by someone else, i.e., a resident who had caused the blockage by putting a mobile phone and “copious pill packets” down the toilet.
10. On 24 September 2020 the resident complained to the landlord about the length of time it took to resolve the drain blockage which had caused damage to her property, by way of sewage ingress into it. She did not believe it had dealt with the issue quickly enough, taking one and a half hours to remove the manhole cover and a further hour to unblock the drain. She felt that, if the manhole had been maintained, it would not have taken this long and described witnessing another manhole being removed very quickly. She also complained that it had given her incorrect information regarding responsibility for the drain cover, which had led to a wasted two weeks.
11. In the landlord’s Stage 1 response of 1 October 2020, it did not uphold the complaint. It explained that it could not be responsible for the negligent actions of others and that it would expect the resident to use her home contents insurance to cover any damage. It acknowledged that it had given incorrect information regarding responsibility for the drain, stating that this was “regrettable” and was due to a misunderstanding because of the complicated nature of drainage systems in the area.
12. The resident escalated the complaint on 9 October 2020 and the landlord issued a Stage 2 response on 14 October 2020. It did not uphold the complaint and reiterated the contents of the Stage 1 response.
13. On 20 October 2020 the resident telephoned the landlord to express her dissatisfaction with its Stage 2 response, upon which the landlord escalated the matter to stage three of its complaints process. The resident wanted the landlord to take responsibility for the incident, pay for the damage, and provide evidence of the inspection regime of the manhole. She described the toilet and bath overflowing, which caused sewage to flow onto her bathroom floor and damage her hallway, bedroom and living room carpets. She added her concerns regarding health risks associated with this also.
14. In the landlord’s Stage 3 response of 10 November 2020 it again did not uphold the complaint. It expressed its sympathy for the situation but reiterated that the blockage was caused by a resident putting a mobile phone and pill packets down their toilet, for which it was not responsible. Despite the neighbours being advised not to use their bathrooms while works to redress the situation were ongoing, some individuals did not adhere to this. In terms of the inspection of the manhole, it explained that, despite having made enquiries, it was unable to obtain any information pertinent to this. The manhole cover had either never been removed since its installation or not for some time, but this was not an unusual situation and there was no requirement to have a maintenance program for manhole covers.

Assessment and findings

15. Once notified by the resident that there was a problem with a back–surge into her toilet, the landlord was responsible for attending and carrying out the repair within a reasonable period of time in accordance with its responsibilities under the terms of the lease and in law. The law does not specify what a reasonable period of time is; this depends on the individual circumstances of the case. In this case, the landlord’s repairs policy states that it will carry out emergency repairs in under 24 hours and the issue at hand constituted an emergency repair.
16. The landlord acted appropriately in quickly attending the property and carrying out the repair within its target timeframes. While the resident disputes the reasonableness of the time taken, it was in accordance with the landlord’s policy and there is no evidence of unnecessary delay on the landlord’s part. The main issue raised by the resident related to the removal of the drain cover which took some time. It transpired that it had not been removed since installation, however, in the absence of an issue reported, there was no requirement for the landlord to remove it. 
17. Moreover, notwithstanding the difficulty, there was no issue identified with the drain besides the blockage which was caused by the inappropriate disposal of items and the landlord remedied the situation within around four hours, meaning that this remained within the timescales set out in its policy.
18. It should not be underestimated how distressing it would have been for the resident to have watched as sewage flowed into the property, overfilling her bath and toilet and spilling onto the floor ruining her carpets. It was an unfortunate and upsetting situation and one that could have been avoided by the incorrectly disposed of items not being put down the toilet. The landlord has added that additional damage was caused by the neighbours above not adhering to its advice while the works were underway.
19. The damage caused, however, was not the fault of the landlord and it is not responsible for paying for the repair or replacement of carpets, the bath or other belongings. Home contents insurance is recommended for eventualities such as this; it is not something the landlord is liable for, as it has correctly stated to her.  In the absence of home contents insurance, the damage caused is expensive, yet it does not tip the balance to fall on the landlord to redress this. The landlord explicitly states in its repairs policy, also, that it is not responsible for costs associated with repair caused by the incorrect disposal of items and in fact may recharge where this happens.
20. In terms of the incorrect information regarding the responsibility of the drains, the landlord accepted that it inadvertently gave the resident incorrect information in advising her that this was Thames Water. There is no indication to this Service that this was an underhand attempt at absolving itself of responsibility, as the resident has felt, but rather, a genuine mistake that was quickly corrected. Again, although the resident feels this caused a wasted two weeks, taking all of the circumstances into account this was a relatively short time for the landlord to recognise and correct the mistake made. Irrespective, the landlord remains not responsible for compensating the resident for damage caused by the blocked drain.
21. The landlord did not apologise for the mistake in the misinformation, however, which was an opportunity missed. To state that it was “regrettable” did not go far enough, particularly in the distressing circumstances and the landlord should take learning from this determination and finding in this regard, for the future.
22. The landlord’s cleaning and removal of the carpets was appropriate and reasonable in the circumstances, given that despite it not being its responsibility to do so, it recognised the upset caused by the situation as well as the fact that it was sewage that leaked into the property and not water, which carries potential health implications. It was not for the landlord, however, to pay for a hotel decant or any further works, repairs or compensations as the resident would like and although disappointing, this remains the case.
23. In responding to the complaint, the landlord did so at all three stages within a reasonable period of time and in accordance with the timescales set out in its complaints policy. Besides missing the opportunity to apologise for the mistake made in the information given about drain maintenance responsibility, however, the landlord also missed an opportunity to take steps to help prevent a recurrence. While the blockage was not caused by any failing on its part, it identified that it was caused by one of a limited number of residents. Further, it identified that the tenants above the resident failed to adhere to instructions not to use the drains while the issue was being resolved by workmen. There is no indication that the landlord has reminded some or all tenants of their responsibilities with regards to the appropriate disposal of items, nor taken steps to address the lack of adherence to not using the drains while works were ongoing, either individually or generally to the whole block. It would be responsible and reasonable for the landlord to do this.

Determination (decision)

24. In accordance with paragraph 54 of the Scheme, there was no maladministration by the landlord in respect of the complaint.

Reasons

25. The landlord attended and carried out works to resolve the issue within a reasonable period of time, in accordance with its policy and it was not responsible for compensating the resident for damage caused by the blocked drain when this was not caused by any failing on its part.

Recommendations

26. The Ombudsman recommends that the landlord should:
    1. review its complaints resolution procedure, specifically in terms of identifying circumstances in which it is appropriate to issue an apology and where it can identify actions to take to help prevent a recurrence;
    2. take steps to communicate to residents their responsibilities regarding the disposal of items and to adhere to instructions by operatives when works are underway.