Notting Hill Genesis (202201185)

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REPORT

COMPLAINT 202201185

Notting Hill Genesis

17 April 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 the resident’s reports of drainage issues.

Background

  1. The resident is a shared ownership leaseholder of the landlord in a new build flat. The defect period for the property ended on 25 July 2020.
  2. It is unclear from the evidence provided when the resident first reported an issue with the drainage system, and the associated smells and noisy pipes; however, it is evident that issues have been ongoing intermittently within the resident’s block since October 2019. The landlord arranged for several inspections which found that the drains were blocked due to misuse of the sinks and toilets. The drains were cleared by the contractors and guidance was provided to all residents to prevent further blockages. The inspections also found concrete blocking the lines. A durgo valve was fitted in the resident’s ensuite bathroom on 28 January 2021.
  3. The resident raised a complaint on 13 September 2021 as he reported the sewage smell had returned to his ensuite, and the issue had been ongoing for over a year. He also raised concerns that the multiple drainage surveys would be re-charged to the leaseholders.
  4. In the landlord’s final response to the complaint, it stated it had identified an issue with the locking system and it would install anti-siphon valves in the flats. As the issue was identified as a defect which would have been present when the flats were built, it would be installed at no cost to the leaseholders. The landlord also confirmed that leaseholders would not be charged for any surveys that identified the issue. It acknowledged the time taken to resolve the drainage issues and offered £150 compensation for the time and trouble experienced.
  5. In the resident’s complaint to this Service, he said there was an ongoing issue with intermittent smells, poor drainage and noisy pipes. He wanted the landlord to complete the actions it had identified at stage two of its complaints process to resolve the complaint.
  6. Following the completion of the complaint, the landlord confirmed the issue had been resolved by installing an anti-syphon valve on 17 June 2022. It noted it had not received any further reports of drainage issues from the resident.

Assessment and findings

  1. The lease outlines that the landlord is responsible for repairs to “the Service Media, cisterns and tanks and other gas, electrical, drainage, ventilation and water apparatus and machinery in under and upon the Building”. As a result, when the resident reported issues with the drainage, the landlord was required to investigate and ensure any required repairs were completed.
  2. When the issues were initially raised, the property was still in the two year defect period which ran from the date it was built. This meant that the developer which built the block of flats was still responsible for completing the required works to put right the drainage issue. The Ombudsman’s spotlight report on leasehold, shared ownership and new builds complaints states that defects may arise in new builds and details that when they do, landlords should effectively pursue developers on a resident’s behalf, ensure there is effective communication between all parties, and be clear how it will respond during and after defects periods. Therefore, when defects are recognised, the landlord should act as an effective intermediary between the developer and the residents, to ensure that issues are appropriately considered and responded to. The landlord should ensure the developer is advised of defects, the repairs are attended within a reasonable timeframe and that it effectively communicates the outcomes of repairs to the residents.
  3. In this case, the landlord apologised for the length of time the issues had been ongoing and that its communication had not been to its service standards. It offered £150 compensation due to the time and trouble caused. Where there are admitted failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman assesses whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: be fair, put things right and learn from outcomes.
  4. A contractor initially attended in October 2019 due to reports of blockages, which were determined to be caused by wipes and nappies, and a recommendation was made to remind the residents to abstain from disposing of such items down the toilets. However, it is of concern that there is no evidence the residents were informed of the recommendation until 28 April 2020, after a recurrence of the issue. If the landlord had promptly advised the residents of the guidance, it may have prevented a recurrence of the drainage issues. Despite this, there is no evidence to suggest that the resident was directly impacted by the issues at this stage.
  5. Following the CCTV drainage survey on 18 October 2019, there was no further indication of issues with the drainage system in the resident’s block until 12 March 2020. On 12 March 2020 and 28 April 2020, the contractor found scale, rocks, wipes, nappies and concrete blocking the lines and drains. The landlord acted appropriately by arranging a contractor to resolve the issue with the concrete particles. Residents misusing the drainage system would not be considered as a defect in the structure of the building, but the landlord would still need to ensure the required works are completed to rectify the issue for the benefit of all the occupants of the building. It was therefore appropriate that the lines were jetted in order to remove the blockages caused by wipes and nappies. The landlord was entitled to rely on the opinions of its appropriately qualified contractors regarding the repairs needed to resolve this issue, and at this stage, there was no evidence to suggest that any additional works were recommended, so the landlord took appropriate actions to resolve the drainage issues.
  6. Although the drains had been cleared, the landlord’s records stated that on 20 May 2020 the resident reported he was still experiencing issues with noises from the drains and a sewage smell in the ensuite bathroom. As the contractor had advised the issue was not caused by a defect, it was appropriate that the landlord advised the resident on 12 June 2020 than an independent CCTV drain survey would be arranged in order to establish if there were any additional causes to the drainage issues. However, there was a substantial delay as the contractor sent the report to the landlord on 29 September 2020, and it was unclear whether the resident was advised of the outcome, or that the landlord informed him of any reasons for the delay. As a result, there was a period of three months in which the landlord failed to progress the repairs. Following the survey, the landlord asked the defect contractor to review and action the survey report, but in response the contractor stated that the majority of the recommendations were maintenance issues, which would not be considered structural defects. Furthermore, it stated that the landlord should have commenced maintenance following the survey in 2019 to prevent the issues. Therefore, despite the delays, there was no notable progress in the repairs.
  7. On 12 October 2020, the contractor advised the landlord it could install a durgo valve in the flats that were most severely impacted to assess whether it improved the situation. The resident’s property was subsequently fitted with a durgo valve on 28 January 2021. It is important to note that social landlords have limited resources and are expected to manage these resources responsibly, to the benefit of all their residents. As a result, it was not necessarily unreasonable for the landlord to trial the solution to ensure a successful outcome before completing the works in all the impacted flats, as this would prevent a potentially unnecessary use of funds. However, there is no evidence that the landlord discussed the intended actions with the resident, or advised him of an expected timeframe, so it failed to manage his expectations in this regard. 
  8. Following the appointment on 28 January 2021, it was noted that the “smell and noises still remain” and a solution was required. There is no evidence that the landlord subsequently completed any further repair works, or that the resident raised any additional issues. On 7 May 2021, the landlord asked the resident if the sewage smell was ongoing and he advised that although the durgo valve installed in the ensuite bathroom had helped, the smell had moved to the main bathroom. It is unclear whether the issues were ongoing for the duration of the period in which no further works were carried out, or intermittently; however, it is evident that the landlord failed to confirm that the issue had been resolved in full.
  9. There is no evidence to suggest that the landlord took any further action to resolve the drainage issues and the resident raised a complaint on 13 September 2021 as the issue was ongoing. A survey was subsequently completed on 11 October 2021, meaning there was a period of over five months, from May 2021 when the resident confirmed the issues were ongoing, in which the landlord failed to take any action to resolve the issues with the smell. The survey recommended for an anti-siphonage trap to be installed. In the landlord’s final response on 2 December 2021, the landlord advised the resident of the proposed solution and stated it would contact the resident within the month to provide a timeframe for the works. However, the required works were not completed until 17 June 2022, which was over an eight-month delay from when the solution was initially identified. Both the delay in completing the survey and the repairs to install the anti-siphonage trap may understandably have caused significant distress and inconvenience to the resident.
  10. When the landlord is unable to complete repairs within a reasonable timeframe, it should consider interim measures to reduce the impact on the resident and regularly update the resident on the progress of the works. In this case, it was reasonable that the contractor jetted the lines in order to reduce the issues with the reported smell, however, it was evidently not a permanent solution. There were communication issues as the landlord failed to regularly update the resident, which meant he often had to chase updates on the progress of the repairs. Furthermore, on 1 October 2020, the resident reported that the smells and noises were increasing, and residents in neighbouring properties were overusing bleach as a result, which he was concerned would impact his family’s health. The landlord failed to address his concerns or take any steps to resolve the issue, such as by writing to the other residents to ask them to be mindful of chemical use, as the resident had requested. The landlord therefore failed to take appropriate steps to reduce the impact in the interim while the repairs were ongoing, keep him updated on the progress of the works or adequately respond to his concerns.
  11. Although the landlord was responsible for completing repairs to the drainage system, if the cause of the repair issues is deemed not to be a defect, it would be recharged to the resident through the service charge. In its final response, the landlord advised that if it was determined “locking issue is a defect”, any related surveys would not be recharged to the leaseholders through the service charge. It is unclear whether the resident has since been provided with any further updates regarding the service charge. The landlord has advised this Service that the resident would not pay towards the costs of proven defects, but may “incur costs associated with investigative works where no defects are found”. A recommendation has been made below that the landlord contacts the resident to confirm its position, in order to manage the resident’s expectations.
  12. Overall, it is clear that there were substantial delays in resolving the issues with the drainage issues in the resident’s building, which led to smells and noisy pipes in his bathrooms. It is recognised that the repairs required a large-scale investigation with multiple properties, which can be complex and take longer to identify the cause of the issues. However, in this case, there have been numerous failings identified in the landlord’s handling of the repairs, including significant delays in actioning the independent CCTV drain survey and installing the anti-siphonage trap once the repair had been identified. The landlord also failed to keep the resident regularly updated or address all of his concerns.
  13. The landlord’s compensation policy states that it will “not pay compensation to a resident solely because there is a defect in a new property, although we will consider compensation on a case by case basis for inconvenience and distress where there has been a service failure in the rectification of defects or where the defect has caused additional damage or hardship”. Although it was appropriate that the landlord recognised compensation was warranted and offered £150, its offer was not in line with this Service’s remedies guidance (published on our website). The remedies guidance states that awards of £100-£600 are appropriate in cases where the landlord has acknowledged its failings and made some attempt to put things right, but the offer was no proportionate to the failings identified in our investigation. As a result of the failings identified in this report, the landlord should award the resident an additional £350 compensation.
  14. The landlord is also ordered to complete a review of its handling of the repairs as although the landlord acknowledged the length of time taken to resolve the drainage issues, it failed to identify its specific failings. It therefore has not demonstrated that it has learned from the outcome of the complaint or taken steps to improve its service, which this Service would expect to see in order for the landlord to adequately redress the complaint.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in the way it handled the resident’s reports of drainage issues.

Orders and recommendations

Orders

  1. In addition to the £150 offered in its final response, the landlord is ordered to pay the resident £350 due to its failings in its handling of the drainage issues. Proof of the total payment should be provided to this Service within four weeks of the date of this report.
  2. The landlord is ordered to complete a case review identifying any points of learning from this case and demonstrate its intention of implementation of these findings, to ensure similar failings are not repeated in the future. The landlord must report these findings to this Service and the resident within six weeks of this investigation report.

Recommendations

  1. It is recommended that the landlord contacts the resident to confirm its position regarding whether the costs of any surveys would be included within the service charge.