Mid Devon District Council (202232822)

REPORT

COMPLAINT 202232822

Mid Devon District Council

24 April 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

The complaint is about the landlord’s:
1. Decision to recharge the resident for repairs to the toilet in her home.
2. Handling of repairs to the toilet.
The Ombudsman has also considered the landlord’s complaint handling and communication with the resident.

Background and summary of events

The legal and policy framework

The resident is a secure tenant of the landlord having been assigned the tenancy by way of mutual exchange on 20 February 1995. The property is a 3 bedroom house, which the resident shares with her son. The landlord has advised that the property was built between 1965 and 1974. It has said that the resident has not disclosed any vulnerabilities.
The landlord has provided a sample tenancy agreement. Within the introduction section it says that it expects the resident to “look after your property, and therefore if any damage is caused to it whether this was intentional or accidental, you will be recharged for putting it right”.
The tenancy agreement confirms what the landlord will repair. This includes:
1. Gutters, drain, sewers and external pipes.
2. Sanitation wear, such as basins, sinks, baths, toilets and installations for room and water heating.
It further says that the landlord will not be liable for these repairs if the repair becomes necessary as a result of damage caused by the resident. This is applicable whether this was accidental or deliberate. Under section 4.9, headed ‘general recharges’ that the resident must pay for making good any damage caused to the property through a failure to take “reasonable care”. This is reinforced within the tenant’s repair handbook provided by the landlord.
The repair handbook sets out the landlord’s response times for dealing with repairs and says that it will tell residents when it responds to reported repairs. The categories are:
1. Emergency – responded to within 4 hours. This is for repairs that “remove immediate danger to people, avoid flooding or major damage to the property, make the property secure or restore total loss of heating in winter”. If it is unable to complete the repair at the time it says it will “make the situation safe and carry out follow up as either an urgent or routine repair”.
2. Urgent – to be completed within 7 working days. This covers work to restore full or partial failure of sanitation, water or electrical supply, or heating systems. This also covers work to prevent immediate damage to the property.
3. Routine – to be completed within 35 working days. This covers those repairs that do not cause inconvenience or present a danger to the resident. It says that “timescales for these repairs may be extended if materials or parts need to be ordered”.
The landlord’s recharge policy sets out how and where it will recover the cost of repairs and/or works. This says that it will recover costs where it must carry out repairs that are as a result of damage, neglect or abuse of the property by the resident, household members or visitors to their home. This is reinforced in point 7.1 of the policy which states that in these circumstances the resident will be held responsible and recharged the costs incurred. It provides an example of neglect as including “putting nappies, baby wipes and other inappropriate objects down the toilet.
Section 15 of this policy sets out how the landlord will collect charges. This says that when a rechargeable repair is identified the resident will be advised of the approximate cost of the repair. It further says that residents can carry out works themselves and they can also engage a qualified specialist if necessary. It says that a payment agreement may be completed and signed by the resident confirming they are accepting liability for the works and the landlord will issue a recharge invoice for any works undertaken. Further it would usually take payment in advance of the works being carried out.
The landlord’s complaints and feedback policy set out its standard for handling complaints, compliments, and comments in ensuring the feedback is recorded and that appropriate action is taken. It has a 2 stage complaints process. All complaints are to be acknowledged within 3 working days and resolved within 10 working days, where possible. Stage 1 will be referred to the relevant service manager. If the customer is still unhappy, stage 2 will result in a further investigation by a senior manager. Where further time is required to investigate a complaint, this will be notified to the resident and a timescale given for the landlord’s response. This will be no more than 12 weeks.

Summary of events

On 19 November 2022, the resident called the landlord to report a blockage to her toilet, which was causing foul water to back up into her bath. She said that she had tried to plunge the toilet and the bath but had been unable to resolve the problem. The landlord arranged for an operative to attend as an emergency. He was unable to clear the blockage. Further attempts were made with the support of a colleague to clear the blocked soil stack. This was accessed from the roof, but this was also unsuccessful. A referral was made to a specialist contractor. They initially attended the same day and again the following morning with different machinery to jet through the drains. They were unable to clear the blockage.
The operative who attended provided feedback to the landlord’s repairs manager on 20 November 2022. In this he said that he had tried to rod the soil stack from the roof. He had only managed to pull out some wet wipes, with the soil stack being completely blocked. The specialist contractor who attended had also found wet wipes in the pipework. He reported that these had jammed the machine used in an attempt to clear the blockage. Neither contractor had been able to locate the drain at ground level, believing the manholes to be covered by the resident’s patio or gravel garden. It was agreed that the specialist contractor would provide a quote to undertake the necessary works required to unblock the toilet. This included the removal of the toilet.
The resident contacted the landlord on 21 November 2022. It recorded that the bath, shower, and toilet were unusable and that there was only 1 toilet in the property. The landlord told the resident that it had received the quote from its specialist contractor and explained that the works would be rechargeable to her. It further advised her that she could arrange for her own contractor to undertake the work. The landlord noted that the resident was initially unhappy with the decision to recharge her for the works but agreed to the quote and for the works to be arranged.
The landlord wrote to the resident on 22 November 2022 in follow up to the emergency call and her subsequent conversation with its repairs manager. In this it:
1. said that the blockage was due to a build-up of wet wipes or flushable wipes.
2. noted that she had spoken with the contractor and advised that her grandchildren were flushing wipes down the toilet.
3. advised that if she or someone within her home were flushing wet wipes, moist toilet tissues or WC wipes that they should not do so. It said that although the packaging says that these are flushable, they do not break down in the same way as toilet tissue.
4. further explained that the call out by the landlord was chargeable, together with the call out to the specialist contractor and advised that it would be sending her an invoice.
5. said that as the blockage had not been cleared. It had received a quote for additional works from its specialist contractor and advised her of the cost. It said that it would instruct the contractor if she were happy with the cost and explained that she could instruct her own contractor if she wished to do so.
Its repair records show that an order was raised to the specialist contractor on 22 November 2022. It confirmed that it had spoken with the resident about the rechargeable works and that she had agreed that it should proceed. It further noted that it had offered the resident the use of local leisure centre facilities while the blockage remained. It indicates that the repair was scheduled to be carried out on 23 November 2022.
The landlord has advised that its specialist contractor attended on the 23, 25 and 29 November 2022 to clear the blockage to the soil stack. It said this was found to be “completely full of wet wipes”. The specialist contractor then undertook works to excavate the ground and replace a section of damaged pipework. This was completed on 5 December 2022. It has said that there was a delay in completing the repair due to the level of wipes found blocking the pipework and that the manhole had been covered by patio slabs. The landlord has confirmed that the works were completed on 5 December 2022.
On 9 December 2022, the landlord sent 2 letters to the resident. The first included an invoice for £676.22 which was the cost of attendance by its operative and its specialist contractor on 19 November 2022. The second included an invoice for £1,008 for the rechargeable repair works concluded by its specialist contractor on 25 November 2022. These letters said that the works were due to a blockage in the toilet caused by a build-up of non-flushable wipes. It recorded that she had been previously advised of this on 22 November 2022. It advised that she should contact its neighbourhood team should she wish to request to make payments in instalments.
The resident wrote to the landlord on 1 February 2023 providing a timeline for the repair and disputing the landlord’s decision to recharge her the cost of the works. The landlord acknowledged the resident’s complaint and said that it would provide a formal response by 15 February 2023.
An internal email dated 2 February 2023 set out the background to the rechargeable works in relation to the resident’s complaint. In this it confirmed that the drain was not shared at the point that was affected by the blockage. The soil stack had been completely blocked from the WC up to the roof with ‘flushable’ wipes. Its operatives had been unable to clear the blockage and had passed it on to a specialist contractor. It had charged the resident the initial call out costs for its own operative and that of the specialist contractor. This was the cost of removing the mass of wipes from the drain. It said that there had been a number of other call outs made by its specialist contractor following clearance of the initial blockage that had not been charged. It said that the force needed to clear the mass of wipes had displaced a joint under the home and this had required major excavation works to access and replace the pipework.
On 3 February 2023, the landlord provided a draft complaint response to the resident. In its covering email it explained that this was a provisional outcome to her complaint. It offered her the opportunity to advise if it had missed any points. It said that it had found no evidence of a failing on its part and it was minded not to uphold complaint. It asked her to respond by 8 February 2022.
The landlord has advised that at the time of the resident’s complaint it was operating a ‘mind to’ response to complaints prior to providing the final complaint response. In line with this it initially provided the resident with its draft complaint response on 3 February 2023. This was followed by its final stage 1 response on 9 February 2023. The element of the landlord’s policy has subsequently been removed from its process.
In its stage 1 reply on 9 February 2023, the landlord acknowledged that the resident was disputing the rechargeable repairs and the invoices she had received. Its reply considered the actions it had taken and set out its timeline. It said:
1. that it had spoken with the resident on 21 November 2022 confirming the findings of its contractors, that the soil stack was blocked from the WC to the roof with wet wipes.
2. it further wrote to the resident on 22 November 2022. This confirmed the charges for the attendance to the emergency call out and that it had obtained a quote for further works from its specialist contractor to clear the blockage that would also be recharged to the resident.
3. it had provided the resident with the option to instruct her own contractor, but she had agreed for it to instruct its specialist contractor on her behalf.
4. that she had only been charged for its contractor’s initial attendance on 19 November 2022 and the visit on the 25 November 2022 to remove the mass number of wipes from the drain. It had not charged her for the additional repairs and improvements that had been required following the clearance of the blockage.
5. that it acknowledged her frustration with the time it took to resolve the matter and the impact this had on her family.
6. it did not uphold her complaint. It confirmed the terms of her tenancy agreement and said that the cause of the blockage had been due to wipes being flushed. The recharge for the repair therefore remained.
The resident asked the landlord to escalate her complaint on 16 September 2023. She provided the landlord with a photograph of the pipe that had been dug up by its contractors. In her letter she said that it was clear that the joints in the pipe were broken and there was evidence of water sitting in the pipe. She also believed that this demonstrated that the pipe did not have the correct fall to allow items to flush away properly. The pipe had been found to be backed up “a couple of meters” and she believed that it had been partially blocked for a while. As such the toilet wipes taken out of the soil stack were part of the waste backed up but were not the cause of the blockage.
The landlord acknowledged the resident’s request to escalate her complaint on 18 September 2023. It said that a response would be provided by 2 October 2023.
On 26 September 2022, the landlord sent its stage 2 response. In this it:
1. noted that she was disputing the invoices she had received and that she had been recharged for the works to clear the blockage.
2. set out the detail contained within her letter and that she believed that there had been a historic issue with the soil pipe.
3. said that reviewed its repair history it had found no reports of previous flooding in her garden.
4. said that its specialist contractor had advised that while clearing the blockage it had identified some the damage to the drain. It was a strong possibility that this had been caused by the force required to clear such a heavy blockage on an old pipe. It had been impossible to see the condition of the pipe prior to it being cleared given the significance of the blockage.
5. said it had reviewed the invoices provided by its drainage contractor. The total cost of the works carried out was £5,063.34 plus VAT. It had agreed not to charge the resident of the cost of excavation works to access the drain in the ground and the associated works.
6. felt that it was reasonable to have charged the costs of clearing the blockage. This was in line with its tenancy agreement and its recharge policy.
7. explained that where there was a blockage, toilet paper can easily be cleared by rodding and jetting as it disintegrated in water. Toilet wipes and wet wipes do not dissolve in water, so it regularly advised that these should not be flushed.
8. had only charged her the cost of clearing the wet wipes from the drain which she had put there. Further it had offered her the option to get own her own contractor to clear the wipes to allow the landlord to carry out a CCTV survey of the drains. She had declined to do this and agreed to the recharge of the works.
9. did not uphold her complaint and advised how she may escalate to the Service.
The resident responded to the landlord’s stage 2 letter on 27 September 2023. She advised that she still did not accept that she was liable and was escalating the complaint to the Ombudsman. Further she had received a letter chasing the money which said that she had rent arrears. She said that this was incorrect. This was shared internally by the landlord.
In her contact with the Service the resident has explained that she disputes the landlord’s position that the toilet was blocked by her use of wet wipes. She does not feel that she should be charged for these works and expressed that this has caused her financial worry and impacted on her health.

Assessment and findings

Scope of investigation

The Ombudsman has noted and wishes to acknowledge that the resident has suffered distress and inconvenience because of the blockage to her toilet and the period over which she was unable to use her bathroom. The Ombudsman’s role is to consider the response by the landlord to a resident’s reports, whether it complied with its policies, current legislation, and good practice, and whether its approach and actions were reasonable in the circumstances.
It is noted that the resident does not believe that she is liable for the blockage that was caused, and that she believes that the pipework caused, or contributed to the blockage. While the resident’s comments are acknowledged, we cannot make a decision as to liability. It follows that we cannot determine if there is a single cause to the blockage which affected the resident’s bathroom, or indeed decide what that may have been. Our assessment has focused on the landlord’s response to the blockage itself and whether it acted in accordance with its policies and procedures, and in a manner that was overall fair. The resident may wish to seek legal advice in relation to the issue of liability.

The landlord’s decision to recharge the resident for repairs to the toilet in her home.

The tenancy agreement and tenant handbook clearly set out the responsibility for repairs. The tenancy agreement states that the landlord will charge residents for repairs that are a result of a failure by the resident to take reasonable care. This is supported by its repairs handbook and its recharge policy. There is a consistency of approach across all the landlord’s documentation.
The recharge policy sets out that it will recover the costs of repairs that arise due to the actions of the resident and provides an example of “putting nappies, baby wipes and other inappropriate objects down the toilet”.
Following its initial attendance at the resident’s home on 19 November 2022 the contractor identified that there was a build-up of wet wipes. The landlord communicated directly with the resident, and she subsequently accepted that the family had used ‘flushable’ wipes. The landlord wrote to the tenant to advise that it would be charging her the initial attendance of both its own operative and its specialist contractor. It appropriately advised that it had gained a quote from the specialist contractor to clear the blockage and discussed with her the option of instructing her own contractor. It has recorded that the resident agreed for it to instruct its specialist contractor.
The landlord acted in line with its policies and procedures in recharging the resident for the cost of clearing the blockage to the soil stack. This was clearly identified by its contractors as being due to a build-up of wet wipes, and the landlord was entitled to rely on their opinion. The landlord’s operative had reported that these were visible in the soil stack at roof level. It was further noted that its specialist contractor had also encountered wet wipes in trying to clear the blockage as they got caught in its machinery.
It was reasonable for it to charge for the initial attendances at the resident’s home, together with the quoted works to remove the blockage. The later having been agreed with the resident. The landlord did not apply any further charge to the resident in respect of the additional works it carried out. This included further clearance of the drains, excavating, and replacing a section of the pipework. It therefore acted reasonably in restricting the overall costs to the resident.
The landlord has advised that after the resident’s complaint it has updated its recharge policy effective from 17 October 2023. This includes a clarification that “wet wipes included wipes branded as flushable.

The landlord’s handling of repairs to the toilet.

In her stage 1 complaint the resident provided a timeline of the actions taken to deal with her blocked toilet. She also set out her distress at having been left without the use of her bathroom over a number of days. While the landlord’s stage 1 response touched on its overall handling of the repair its general focus was on her dispute to its decision to recharge her for the works. It would have been appropriate for the landlord to have reviewed its overall handling of the repairs and its timeline for this. To not do so was a failure in its complaint handling.
At stage 2 the resident questioned the use of wet wipes being the sole reason for the blockage. She said that she believed that the ‘fall’ of the drain was incorrect and that there was visible damage to the pipe when this had been excavated.
In correspondence to the Service the landlord has said that there was a delay in completing the repair. This was due to the level of wipes found to be blocking the drain and that the manhole was covered by patio slabs, making it inaccessible. It said that it took a total of 9 days to clear the blockage over 3 visits from its contractors. The landlord had a single contractor available to it and was reliant on that contractor’s availability. It had also offered the resident the option of appointing her own contractor.
It arranged for a manager to remain contactable to the resident during the period of the works as a point of contact and the resident was kept informed of its contractor’s findings, together with the likely cost of clearance of drains. It is acknowledged that the situation was complex. However, it would have been appropriate for the landlord to express this detail to the resident in its response to her initial complaint. That the landlord did not do so was a missed opportunity to explain the actions that it had taken, and the issues it had experienced in trying to complete the repair.
The initial call out by the resident was on 19 November 2022 with contractors attending as an emergency, in line with the landlord’s published repair timeframe. The specialist contractor further attended on 20 November 2022. When it was unable to clear the blockage, it provided a quote for the additional works required. These costs had to be agreed with the resident in line with the landlord’s recharge policy.
There is a slight discrepancy in the timelines provided by the resident and the landlord regarding the dates for follow up visits by the landlord’s specialist contractors. It appears from this that the blockage to the toilet was fully cleared on the 28 November 2022 with contractors returning on 1 December 2022 to dig up the patio and replace pipework. The landlord has confirmed that all the works were completed by 5 December 2022.
The landlord has told the Service that had the soil stack not contained wet wipes it would have expected to be able to clear the blockage in a shorter timeframe. This would have allowed the resident to use her bathroom facilities while it addressed a problem further down the line.
It would have been appropriate for the landlord to have considered its overall handling of the repair as part of the resident’s complaint and provided advice to her accordingly, offering necessary apologies for the unforeseen delays. This was a further missed opportunity to address her concerns, and a failing in the landlord’s complaint handling. It is however acknowledged that the resident’s use of the toilet and the flushing of wet wipes proved a contributory factor in the delay in completing repair, due to the difficulties experienced in clearing these items from the soil stack. It would be expected that if the blockage were made up of tissue this would have been easier to clear as these dissolve in water and can usually be cleared by plunging or jetting.
Having considered the steps taken by the landlord to remove the blockage to the toilet and complete the repairs to the pipework, the landlord acted appropriately.

The landlord’s complaint handling and communication

It was noted that as part of her stage 1 complaint the resident highlighted that the family were unable to use the bathroom facilities within the house because of the blockage to the soil stack. The landlord’s records show that it was aware that there was only a single toilet within the property. As outlined the landlord did not address this in its stage 1 complaint response, focusing on the resident’s dispute that she had been charged for the repairs.
The landlord has advised that much of its communication with the resident was done via telephone, and often through its out of hours service. It has not presented any evidence as to the details of this contact. It is noted that the landlord has recorded that it offered the resident the use of local leisure centre facilities while she was unable to use her bathroom, but there is no evidence of this offer having been formally made to the resident.
Furthermore, the landlord has advised that as the blockage was due to misuse by the resident or her family it was unable to provide funding for temporary accommodation. It is not clear from the evidence provided if this was discussed directly with the resident and what arrangements she had in place while the landlord worked to clear the blockage.
It would have been appropriate for the landlord to have set out within its complaint response the steps it had taken in handling the repair and offered its apologies and explanation of any delays. It should also have provided clarity to the offers made to use alternative facilities during that time. That it did not was a failing.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s decision to recharge the resident for repairs to the toilet in her home.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of repairs to the toilet.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s complaint handling and communication with the resident.

Reasons

The landlord has presented clear and consistent policies and guidance around repair responsibilities. These set out clearly what it considers to be damage or neglect of the property by the resident and where it will recharge residents the cost of repairs. Further, considering the resident’s case it has updated its guidance to ensure that it provides clarity about the use of wet wipes, including those advertised as flushable.
In undertaking the repair it attended the resident’s initial reports of the blockage as an emergency. Having then agreed the initial quote from its contractors with the resident it proceeded to arrange for the works to be carried out to clear the blockage. These were completed within its published timescale for urgent repairs. Follow up works were then carried out to excavate the garden and replace the damaged pipework. All works were completed within 16 days of the resident’s initial report.
The landlord should have responded to the concerns raised by the resident within her stage 1 complaint about the impact of the loss of her bathroom facilities on her and her family. It should have appropriately acknowledged the distress that this had no doubt caused and set out clearly the steps that it had taken to address this and the offers it had made in terms of alternative facilities.

Orders

Within 4 weeks of the date of this report the landlord must:
1. Pay the resident £100 compensation in recognition of the failings in communication identified.
2. Provide the resident with a written apology in line with the Ombudsman’s guidance on remedies as to the failure identified.