London Borough of Newham (202112842)

REPORT

COMPLAINT 202112842

Newham Council

28 June 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 handling of:
   1.                Responsibility for the maintenance of a drain.
   2.                Moving of a boundary fence.
   3.                The associated complaint.

Background

2. The resident holds a secure tenancy with the landlord. The landlord is a local authority.
3. On 3 February 2021, the resident raised a complaint with the mayor’s office about a drain that was shared with the neighbouring property, becoming blocked. The resident asked the landlord for clarification as to who was responsible for clearing the drain as it repeatedly overflowed, flooding her garden, and making it smelly. This meant the resident either had to clear the drain herself or report it to the landlord. The landlord’s records show that the resident made at least five reports to the landlord about the blocked drain, dating back to 2018. The landlord unblocked the drain on each occasion.
4. The mayor’s office responded to the resident that the land registry indicated that the drain was shared (the copy this Service has received is not dated, but it appears that this response was around March or April 2021). It said that the fence between the two properties was in the wrong position. This gave the impression that the drain gulley belonged to the resident’s property and that the neighbour’s drainpipes were encroaching, however this was not the case. It said that the drain wasn’t eligible for the water authority’s “adopt a drain” scheme. The mayor’s office said it would liaise with the landlord to ask how the issue would be addressed going forward.
5. On 19 April 2021, the resident contacted the mayor’s office as she had heard nothing further from the landlord. The mayor’s office responded to say it would follow-up with the relevant team. It sent the resident a copy of the landlord’s complaint process. It is unclear whether the resident complained to the landlord directly.
6. The resident complained to the Ombudsman on 5 September 2021. She said she had heard nothing further from the landlord. It had not confirmed to her that it had written to her neighbours about the shared drain, nor had it moved the boundary fence. She said she wanted the landlord to remove all charges relating to the drain from 2017 onwards, from her service charge account. On 21 January 2022, this Service asked the landlord to consider the resident’s complaint at stage one of its complaint procedure.
7. On 22 February 2022, the landlord issued it stage one complaint response. It said it had contacted the resident’s neighbours to inform them that maintaining the drain was a shared responsibility and the maintenance costs should be shared 50-50 between the neighbours and the landlord. It said that it had also informed the neighbours about the importance of using the drain responsibly, to reduce the risk of blockages occurring. The landlord confirmed that the boundary fence was in the wrong position.
8. The resident escalated her complaint to stage two of the complaint procedure on 23 February 2022. She asked for a copy of the letter the landlord had sent to her neighbours for her to refer to, should any future issues arise. She also asked the landlord to relocate the fence, to reflect the boundary as indicated on the land registry documents.
9. She did not receive a response, so she contacted this Service which wrote to the landlord on 16 June 2022, asking that it respond to the resident. On 20 June 2022, the landlord responded to the Ombudsman. It said that although the resident had written to the landlord expressing her dissatisfaction, she had not specifically requested a review of the landlord’s complaint response. It said it had now escalated the resident’s complaint to stage two of its complaints process.
10. On 27 June 2022, the landlord put up a new fence to reflect the boundary between the two properties as indicated by the land registry. The landlord’s contractors initially installed a lifting mechanism in the fence to allow the resident to access and clean the drain if necessary and showed her how to lift the panel. However, on 28 June 2022, the landlord removed this mechanism and cut a hole in the fence panel instead.
11. The landlord issued its stage two complaint response on 29 June 2022. It apologised to the resident. It awarded the resident £100 for the time and trouble the resident had taken to raise her complaint. It awarded the resident £50 for the time she had taken to clean the drain and report the matter to the landlord. It awarded the resident £100 for the time it had taken to relocate the boundary fence.
12. The resident responded to the landlord. She again asked for a copy of the letter the landlord had sent to her neighbours. She asked the landlord to replace the panel in the fence that it had cut a hole into, with a new fence panel that did not have a hole in it. She said she was unable to accept the landlord’s offer of compensation.
13. The landlord responded to the resident on 17 July 2022. It said that it could not provide her with a copy of the letter for data protection reasons. It said it would contact its surveyor about the hole in the fence. It said it would not offer the resident any more compensation as the issue with the shared drain was now resolved.
14. The resident did not hear anything further from the landlord, so again she asked this Service to contact it on her behalf.
15. On 20 September 2022, the landlord wrote to the resident to say it could not attach the fence to the wall because of pipework, so the fence panel was off set into the resident’s garden. It said that the only way to keep access to the drain gulley was to form an opening in the panel.
16. The resident complained to the Ombudsman on 23 October 2022. She accepted the landlord’s statement that it had sent a letter to the neighbours and that it had done all it could in relation to the shared drain. However, she said the landlord had not explained why it had removed the lifting mechanism in the fence which had allowed her access to the drain. The resident has told this Service that the hole in the fence makes it difficult for her to reach the drainto clear it when necessary.

Assessment

Policies and procedures

17. The landlord’s complaint process has two stages. At stage one, if a complaint requires investigation by the landlord, a response will be provided within 10 working days. If an extension of time is needed at stage one, the procedure states that the resident will be provided with a clear explanation for this, and a response will be provided within 20 working days. At stage two, a response will be provided within 15 working days.
18. The Ombudsman’s complaint handling code (published on our website) sets out the Ombudsman’s expectations for landlords’ complaint handling. The Code states that landlords should respond to stage one complaints within 10 working days and should respond to stage two complaints within 20 working days. It also states that if landlords require more time to respond to a complaint, they should contact the resident to provide an explanation as to the reasons for this and a clear timeframe for when the response will be received.
19. The Ombudsman’s complaint handling code states that a complaint must be defined as: ‘an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the organisation, its own staff, or those acting on its behalf, affecting an individual resident or group of residents’.

Scope of investigation

20. The resident has told this Service that she wanted the landlord to remove any charges for clearing the drain from 2017 onwards from her service charge account. This Service has not seen evidence that the resident raised this issue in her complaint to the landlord. As this request was not escalated via the landlord’s complaint procedure, it has not been considered in this assessment. This is because the Ombudsman is not able to consider complaints that are made prior to having exhausted a landlord’s complaint procedure. This is so that landlords have the opportunity to respond to complaints and resolve issues before the Ombudsman becomes formally involved. If the resident wishes to pursue this matter further, she can complain to the landlord. She may be able to refer her complaint to the Ombudsman once it has exhausted the landlord’s complaints process.

Assessment

21. The Ombudsman’s expectation is that landlords in resolving complaints:
    1.                Be fair – treat people fairly and follow fair processes.
    2.                Put things right.
    3.                Learn from outcomes.
22. Where there have been errors by the landlord, we will assess whether the landlord has done enough or if it needs to do more to put things right for the resident and learn from the outcome of their complaint.

Responsibility for the maintenance of the drain

23. The landlord acted appropriately in checking the land registry documents to establish the responsibility for the drain. Having done so, it also acted appropriately in writing to the resident’s neighbours to inform them that responsibility for the maintenance of the drain was shared. It was also appropriate that the landlord confirmed the boundary fence was in the wrong place. The landlord acted reasonably by approaching the water authority to see if the drain would be eligible for “an adopt a drain” scheme. By taking these actions the landlord showed it was making reasonable efforts to investigate the issue and trying to find a solution for the resident.
24. The landlord has explained that it was unable to provide the resident with a copy of the letter it sent to her neighbours, due to data protection regulations. The resident has accepted this reasoning. In any event, the landlord acted reasonably in this regard as it had told the resident what it had said in the letter.
25. The landlord has acknowledged that the resident has cleaned the drain and has offered the resident £50 compensation. It has acted reasonably in doing so to recognise the resident’s efforts. However, the landlord would not be expected to compensate the resident each time she cleaned the drain. Although this would understandably cause her some level of inconvenience, tenants are expected to clean drains (without using any specialist equipment) periodically as part of their general responsibilities for maintaining their property. Rather the landlord had an obligation to unblock the drain, as it had done each time the resident had reported it. Therefore, the landlord does not need to do anything further in this regard.
26. The landlord has responded reasonably in establishing that responsibility for the drain was shared between it and the resident’s neighbours. Therefore, the landlord does not need to do anything further in this regard.

Moving of the boundary fence

27. The landlord has acknowledged the delays in moving the boundary fence and has offered the resident £100 compensation for this. However, it did not move the fence for over a year and a half after it had first acknowledged the fence was in the wrong place. The resident had to complain to this Service multiple times before the fence was moved. Whilst it was reasonable for the landlord to acknowledge its errors and offer compensation, the compensation offered for this aspect of the complaint does not fully reflect the time, trouble, and inconvenience, the delay will have caused the resident.
28. The landlord has told the resident that it had to cut a hole in the fence to allow access to the drain. The landlord has provided a photo of the hole cut into the fence, which suggests it would make the drain awkward for the resident to access and clean. The landlord has acted unreasonably by not providing an explanation as to why it removed the mechanism to lift the fence panel, originally installed by its contractors. This lack of response will have caused additional time, trouble, and inconvenience to the resident. The landlord should provide an explanation as to why it removed the mechanism for lifting the fence panel or replace the fence panel and reinstall the lifting mechanism if it is practical to do so.
29. The Ombudsman’s remedies guidance (published on our website) states that where maladministration has been identified that adversely affected the resident, between £100-£600 compensation should be offered. In this Service’s opinion an additional £100 should be offered to the resident for the landlord’s failings in moving the boundary fence.

The handling of the associated complaint

30. The resident initially raised her complaint via the mayor’s office which liaised with the landlord to provide her with a response. It would have been reasonable for the landlord to respond directly to the resident, as her complaint was related to her tenancy and concerned a matter that the landlord was responsible for, namely the maintenance of the drain.
31. Furthermore, there is evidence that the mayor’s office had to chase the landlord on at least one occasion, as despite confirming that the fence was in the wrong place, the landlord took no further action. This resulted in the resident having to contact the Ombudsman for assistance in progressing her complaint. This will have caused her time, trouble, and inconvenience.
32. The landlord acknowledged the resident’s stage one complaint on 24 January 2022 and said it would aim to provide a response by 21 February 2022. It was appropriate for the landlord to let the resident know when she could expect a response. However, the landlord’s complaint procedure states that at stage one it will respond to a complaint within 10 working days and if more time is needed, it will provide an explanation as to the reasons for this. This is in line with the Ombudsman’s complaint handling code set out above. The fact that the landlord did not provide an explanation as to why more time was needed, will have caused the resident additional time, trouble, and inconvenience.
33. The landlord said that it did not escalate the resident’s complaint to stage two of its complaint procedure on 23 February 2022, as whilst she had expressed her dissatisfaction, she had not requested a review of its stage one complaint response. This was a failure on the landlord’s part, as the Ombudsman’s complaint handling code, set out above, states that any expression of dissatisfaction, however made, should be considered a complaint. The landlord should have escalated the resident’s complaint to stage two of its procedure. The fact that it did not do so, caused a delay of over four months, causing the resident further time, trouble, and inconvenience.
34. The landlord offered the resident £100 for her time and trouble in bringing the complaint. However, in this Service’s opinion, this amount does not reflect the time, trouble and inconvenience, the failures in the landlord’s complaint handling will have caused the resident. As noted above, the Ombudsman’s remedies guidance states that £100-£600 compensation should be offered where maladministration is identified that adversely affected the resident. In this Service’s opinion an additional £100 compensation should be offered in view of this.

Determination (decision)

35. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in the way it responded to the responsibility for the maintenance of a drain.
36. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in the way it handled the moving of the boundary fence.
37. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in the way it handled the associated complaint.

Orders and recommendations

Orders

38. Within four weeks of the date of this decision the landlord is ordered to:
    1.                Provide the resident with an explanation as to why it removed the lifting mechanism in the fence or install a new fence panel and reinstall the lifting mechanism within four weeks of the date of this report.
    2.                Pay the resident £100 for its failures in the moving of the boundary fence. This amount is in addition to the £100 offered to the resident as part of its complaints process.
    3.                Pay the resident £100 for its handling of the associated complaint. This amount is in addition to the £100 offered to the resident as part of its complaints process.
    4.                Make the above payments within four weeks of the date of this report, ensuring that this Service is provided with evidence of compliance by the same date.

Recommendations

39. It is recommended that the landlord:
    1.                Responds directly to residents who have raised housing complaints via other departments.
    2.                Carry out staff training on its complaint process to ensure that any expression of dissatisfaction from a resident is considered as a complaint and escalated if appropriate.
    3.                Pay the resident the £50 compensation it has offered the resident in recognition of her cleaning of the shared drain if it has not already done so.