Orbit Group Limited (202005473)

REPORT

COMPLAINT 202005473

Orbit Group Limited

18 January 2022

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

This complaint is about:
The landlord’s response to the resident’s reports of a blocked drain causing sewage to overflow in the property;
The landlord’s handling of the resident’s subsequent complaint.

Background and summary of events

Background

The resident is a shared owner of the property, and the lease began in August 2008. The property is a ground floor flat with a single bathroom situated in a block.
The lease agreement confirms the resident is responsible for maintaining the internal structure of the property including pipes drains and sanitary ware. The landlord is responsible for maintaining the main structure of the block including pipes, sewers and drains.
Section 6.2 of the agreement confirms the landlord is not liable for any damage suffered by the resident resulting from the bursting or overflowing of any pipes or drains except to the degree that the liability may be covered by the landlord’s insurance. This clause directs damage claims towards the landlord’s insurer.
The landlord’s repairs policy defines emergency repairs as any repair required to sustain immediate health, safety, or security or that affects the structure of the building adversely. It confirms the landlord will attend repairs of this type within four hours for the most urgent cases.
The Health and Safety Executive (HSE) issued a report titled “Working with sewage, the health hazards: A guide for employers”. It defined raw sewage as mainly water containing excrement, industrial effluent and debris, such as sanitary towels, condoms, plastic etc. The report identified the health risks of exposure to sewage or its products which it said may result in a number of illnesses. These included gastroenteritis; hepatitis; wheezing produced by the inhalation of living or dead organisms; and infection of skin or eyes.
The landlord operates a two stage complaints procedure. Its procedure document, effective from 18 August 2020, confirms the landlord should organise or pay for the cleaning of damaged items in connection with insurance claims.
The landlord’s compensation policy, effective June 2020, confirms complainants are unable to appeal the level of compensation awarded, unless they can provide evidence and clear justification that the incorrect amount has been awarded in line with the landlord’s compensation policy.

Summary of events

The resident called the landlord on Saturday 13 June 2020 to report sewage water rising in her bathtub and toilet. The landlord’s call history shows the resident was advised the property was leased through a shared ownership scheme. The implication was the problem was a matter for the resident to resolve. The resident’s timeline of events gives further details of the conversation. It said during the call she was advised the landlord would be unable to inspect the problem unless further reports were received from other residents.
The call history shows the resident called again within an hour. The note records the building’s main drain was blocked and backing up into the resident’s bathroom fixtures. The resident’s timeline shows, following the initial call, she had spoken to other residents to gauge the extent of the problem. Further, that relaying details of these conversations prompted the landlord to arrange an emergency inspection. However, around this time the wastewater had started to overflow onto her bathroom floor.
Both parties agree the landlord inspected the problem later that day and found an external drain was blocked. Despite attempting to clear the blockage, the landlord was unable to resolve the issue with the tools available. It therefore arranged to reattend on Monday with the correct equipment. Its efforts were later described as a temporary fix which it felt would hold until it could return. The resident’s timeline shows she was advised a tanker would be required to fully clear the drain.
Both parties agree two calls with the landlord took place on Sunday 14 June 2020 because the problem had reoccurred. Further, after raising an emergency repair on the first call, that the landlord eventually called back and advised it was unable to act on the basis the resident was a shared owner. The resident’s timeline shows the effluent overflowed again during the afternoon prompting the resident to stay with her parents overnight.
Although the resident’s timeline suggests there were 12 calls in total, the call history confirms at least seven calls were made to the landlord on Monday 15 June 2020. The first four to five calls were made because the landlord confirmed a repair order had been raised. However, it had not attended the property to complete the repair. At the resident’s prompting, the landlord made multiple attempts to contact its Repairs Team. The lack of a response eventually caused the resident to arrange her own contractor to inspect.
The contractor’s job sheet confirms it attended that afternoon and advised a tanker was needed to clear the blockage. It shows on arrival the bathroom was flooded with foul waste and a blocked communal stack pipe was causing the problem. It provided a quotation of £480 to remove the blockage. The resident’s timeline shows the contractor advised the problem was the landlord’s responsibility to resolve.
This advice prompted the resident to contact the landlord again, and both parties agree she was then told its contractor was unaware of the repair job. The call history note shows another emergency call out was raised. Further, a tanker was requested to address the blocked communal pipe. The parties also agree further calls took place that day, following non-attendance by the landlord within its emergency response timescale, and the resident was again advised the contractor was unaware of the job. This prompted another call out to be raised in connection with the problem.
The resident’s timeline shows she made calls seeking reassurance that the landlord would arrive with a tanker following previous incorrect information about its response time. Further, during one of these calls at around midnight, the landlord arrived at the property in a van contrary to the previous discussions. It also shows a promised call back was not returned, and the landlord’s out of hours staff had difficulty accessing case notes made during the day.
Both parties agree the resident was eventually told the landlord had not approved the use of a tanker, which is why it arrived with the wrong equipment. This was despite each previous inspection confirming the blockage was too severe to resolve without the use of specialist equipment. The resident had relayed this information and the landlord’s own contractor had conducted the initial inspection.
The resident’s timeline shows, after several further calls to the landlord, a tanker arrived around 2:45am on Tuesday 16 June 2020 and repair works began. After around two hours the foul water began to drain from her bathtub and toilet. During the repairs, the resident’s sanitary ware was cleaned with a vacuum machine and her hall carpet was lifted to allow the flooring to dry. It shows the resident had to dispose of towels and sheets used to soak up the wastewater along with her hallway carpet and vinyl flooring from the bathroom. Further, she was advised by the attending contractor that the problem had occurred due to a lack of maintenance on the communal drain by the landlord.
During a call later that morning, the resident asked the landlord to conduct a professional clean of the property to ensure it was returned to an appropriate standard of hygiene. Although this was initially agreed, and an emergency call out was raised, the landlord failed to arrive for the appointment. It took additional calls for the resident to discover it was unable to attend because she was a shared owner. Her timeline shows the landlord also promised call-backs in connection with the cleaning, which did not occur as arranged. Both parties agree the resident was ultimately advised to raise a claim on her home insurance in relation to the damage.
On 21 June 2021 the resident contacted the landlord’s insurance team to raise a damage claim. She confirmed she was seeking the cost of a new bathroom, including skirting boards along with a new bathroom door and frame, plus hall and lounge carpets due to contamination. She also said she would be making a formal complaint about her experience.
Internal correspondence from the landlord’s Insurance Department on 22 June 2020 shows the resident was advised to contact the landlord’s insurer directly with details of its policy number. It shows the department advised the landlord was responsible for maintaining the drains to ensure a free flow of water.
The landlord acknowledged the resident’s formal complaint on 23 June 2020.
The landlord issued its stage one complaint response on 2 July 2020. It acknowledged the resident had reported receiving conflicting information about claiming on the landlord’s insurance. It agreed she had experienced service failures along with unnecessary delays. It identified two emergency repair jobs had not been attended and awarded £50 in compensation to address this failure. A further £50 was awarded because it had arrived with the wrong equipment. It recognised this caused a further delay which resulted in the resident staying awake all night while the situation was ongoing. It said the resident’s claim for a new bathroom would need to be raised through her own insurance.
On 13 July 2020 the resident asked for her complaint to be reviewed. This was on the basis her plans had been disrupted over a period of four days and she had been forced to leave the property due to the lack of a useable bathroom. She referenced the amount of time she had spent chasing the landlord and the stress the situation had caused. Further, she was not confident the issue could not reoccur in the future based on the landlord’s response. As a result, she was dissatisfied with the both the quality of the investigation and the level of compensation awarded.
The landlord replied the same day. It said the complaint had been upheld and compensation had been awarded in accordance with its internal guidelines. Further, it did not review outcomes based on the level of compensation alone. As a result, the review criteria had not been met and the resident should contact the Ombudsman is she remained dissatisfied.
Following further correspondence between the parties, the landlord restated it would not review the complaint on 17 July 2020. This prompted the resident to reply her review request was made in line with the landlord’s complaints policy and was not based solely on the level of compensation. This was because she was also seeking clarification of the landlord’s maintenance procedures with a view to preventing the problem from reoccurring.
On 8 September 2020 the resident notified the Ombudsman she had been charged an excess fee for making an insurance claim and she felt this should be reimbursed by the landlord. From her notes, it was unclear whether the claim had been raised on her personal policy or on the landlord’s own insurance.
The Ombudsman contacted the landlord on 12 December 2020 to clarify whether the resident’s complaint had completed its formal complaints process.
The landlord issued a stage two complaint response on 16 December 2020. It agreed the previous award of £100 compensation did not fully compensate the resident for her experience. It therefore awarded a further £200 which increased the total compensation to £300 overall. While it confirmed the review was upheld, no detailed rationale was provided for the additional £200, and the figure was not broken down. The wording of the letter indicated the landlord had discussed the case with the resident that day. It also suggested that during the conversation she had agreed the new level of compensation was much fairer given the circumstances.
On 28 March 2021 the resident emailed the Ombudsman about the case. She said she had not spoken to the landlord on 16 December 2020 or agreed to its new level of compensation. She provided screenshots of text messages from the landlord’s complaint handler, which confirmed, although he had tried to call her that day, they had been unable to make contact. She also said she had spent a total of six nights away from the property because it needed significant cleaning after the event.
The landlord’s call history records confirm the resident reported concerns about water draining slowly at the property on 7 April 2021. They show she was concerned about the possibility of a further blockage causing a reoccurrence of the flooding. The landlord’s repair history indicates the problem was fully resolved on 27 April 2021, but no further detail was given.
During a phone call on 11 January 2022, the resident confirmed her claim against the landlord’s insurance policy had been settled. Further, the damaged flooring, carpet and timber fixtures had been replaced due to the successful claim. However, the resident said she had paid the landlord’s policy excess to facilitate the claim, and she recalled the fee was £250. She also confirmed she felt the landlord’s overall redress was disproportionate given the impact the situation had on her.

Assessment and findings

The landlord’s response to the resident’s reports of a blocked drain causing sewage to overflow at the property

The evidence confirms issues arising from the property’s internal structure are the resident’s responsibly as a shared owner. The landlord is responsible for maintaining the external structure of the block, and it is obliged to respond to emergency repairs within four hours. The landlord was therefore entitled to query the resident’s initial report on 13 June 2020. However, once it identified a repair to a communal drain was required the landlord’s own obligations kicked in.
The above timeline shows the landlord recognised the nature of the repair soon after the initial report. It also shows it promptly recognised the situation was an emergency and it repeatedly raised four-hour response orders to its contractors throughout the timeline. On that basis, it was not appropriate or in accordance with its repairing obligation that the blockage was wasn’t cleared until the fourth day in the timeline. Though it is accepted the incident was reported during a weekend, the timeline shows the landlord missed an opportunity to mitigate the impact on the resident when it declined to reattend the property on 14 June 2020.
The information suggests this error occurred because the landlord failed to adequately check its contact and repair records. If it had, it would have confirmed that the matter of responsibility had been resolved and its contractor had previously attended the incident. This failure was to reoccur on a number of occasions during the timeline in relation to responding to the blockage, and the cleaning required afterwards. From the timeline, it is clear this reoccurring failure contributed to unnecessary delays.
The internal correspondence from the landlord’s insurer confirms its obligations extended beyond clearing the blockage. This is supported by the resident’s confirmation that she made a successful damage claim against the landlord’s policy. On that basis, the landlord bears responsibility for any distress and inconvenience she was caused, because of the blockage, until the cleaning was complete, and the damage was repaired.
However, the landlord’s complaint correspondence and final compensation offer suggests it overlooked this aspect of the timeline. This is because its correspondence did not directly address the inconvenience of the cleaning, or the inconvenience associated with having the damage repaired. It is reasonable to conclude the insurance claim required the resident to coordinate with the insurer and facilitate access for the repairing contractor.
The resident has said she was away from the property for a period of around six nights until the cleaning was complete. It is recognised that this situation was distressing, and her only bathroom was unusable for a significant proportion of this timeframe. It is reasonable to conclude during this time the smell of sewage made the property an unpleasant place. It is clear her property was damaged even though she was not at fault for the incident. Further, she was forced to maintain a high level of engagement with the landlord, until the blockage was cleared, to ensure the situation was resolved. It is also reasonable to conclude that staying awake all night between 15 and 16 June had a considerable impact on her normal routine.
The landlord has accepted that failures occurred during the timeline, and it has awarded compensation as a result. That said, it has not fully explained the rationale behind the calculation of its final offer. Further, there is there is no evidence to show it considered the risk, presented by the sewage, to the resident’s health during the timeline, or that it was reflected in its offer of compensation. The various health risks associated with proximity to sewage were identified in the HSE report. Given the above, this assessment has focused on whether the landlord’s overall redress was appropriate given its response to the resident’s reports.
In relation to any failures identified the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the complainant’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account 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 as well as our own guidance on remedies.
In connection to the principle of fairness, as mentioned, the evidence suggests the landlord’s offer of £300 has overlooked the full extent of the timeline, along with the risk to, and impact on the resident. On that basis, it is reasonable to conclude the amount awarded is disproportionate given the overall circumstances of the case.
In terms of putting things right, the evidence confirms there were failures in the landlord’s response. It therefore had a responsibility to put everything right following the blockage. However, the resident has said she incurred the landlord’s policy excess fee. The information therefore suggests she is presently out of pocket and the fee has almost offset the landlord’s compensation award. Having considered the lease agreement, no evidence has been seen to show the resident was obliged to pay this fee.
The timeline also confirms the landlord declined to clean the property following the blockage. It is noted the landlord’s compensation policy came into effect after its stage one response had been issued. However, it is reasonable to conclude the document would have been available by the time its stage two response was issued in December 2020. Nevertheless, there is no indication the landlord ultimately accepted any responsibility in connection to the cleaning. Since the above aspects were overlooked by the landlord’s stage two response, its overall level of redress can again be considered disproportionate.
In connection to learning from outcomes, it is recognised the resident has concerns a similar incident could reoccur without the landlord putting in place a regular maintenance schedule for the drain. While the Ombudsman is unable to compel the landlord to take this action, it is noted the resident’s quotation indicated the cost of a tanker was comparatively low in relation to the various costs incurred by the landlord following the resident’s subsequent complaint and damage claim. The landlord is therefore encouraged to carefully consider the overall circumstances of the case with a view to preventing a reoccurrence.
Given the above, the landlord’s overall compensation of £300 was insufficient redress given the multiple failures in the landlord’s response to the resident’s reports. This failure to provide appropriate redress represents service failure on the part of the landlord.

The landlord’s complaint handling

Monitoring complaints provides a useful feedback tool for landlords. In this case, the above timeline confirms multiple errors took place during the landlord’s response to the blockage. It is therefore reasonable to conclude that the case provides ample learning materials which could be used to improve matters for other residents. As a result, it would have been reasonable for the landlord to use it to identify service improvements. However, no evidence has been seen to show has been seen to show the landlord attempted to extract improvements from its handling of the case. Its complaint responses confirm an opportunity was also missed for the landlord to show the resident that it learns from outcomes by detailing any preventative measures taken.
The resident’s evidence confirms the wording of the landlord’s stage two response was factually inaccurate given the interaction that took place between the parties at the time it was issued. This is because it shows no conversation took place between the parties on 16 December 2020, contrary to the wording of the landlord’s stage two response. Since no conversation took place, no agreement could have been reached over the level of redress. This inaccuracy represents a service failure on the part of the landlord given the impact it had on the resident. Since she was sufficiently unhappy to notify the Ombudsman, and took the time to provide supporting evidence, it is reasonable to conclude the inaccuracy was upsetting and undermined her faith in the landlord’s complaints handling process. This was regrettable given the previous events.
In some circumstances, it may be appropriate for a landlord to refer a complaint to the Ombudsman following the initial stage of its formal complaints process. A provision for this eventuality is contained in section 4.13. of the Housing Ombudsman’s Complaint Handling Code. However, these cases are likely to be in a minority given landlords are encouraged to resolve disputes internally in the first instance. The second stage provides a useful opportunity for a complaint to be considered again from a different perspective. The Ombudsman’s experience is that outcomes frequently change at the second stage.
Section 3.5 of the Code confirms complaints should be escalated if they are not resolved to a resident’s satisfaction. Section 4.11. says landlords should not unreasonably refuse to escalate a complaint through all the stages of its procedure, and it must have clear and valid reasons for early referrals to the Ombudsman. On that basis, early referrals are likely to occur where it is clear there has been no error on the part of a landlord and completion of stage two will not result in a different outcome.
That the landlord eventually changed its level of redress confirms that early referral to the Ombudsman was inappropriate in this case. Further, the resident confirmed the level of compensation was not her only reason for requesting escalation of her complaint. This is because she had concerns about the quality of the investigation and thought the issue would reoccur. This rationale was overlooked by the landlord. While the landlord’s compensation policy is accepted, this assessment found the need for an escalation could have been inferred from the disparity between the initial award of £100 and the impact on the resident. It is reasonable to conclude this disparity provides the clear justification required by the policy in respect of compensation disputes.
In this case, the impact of the early referral was a delay of around four months in issuing a final response letter. The resident may also have felt her complaint had been unfairly dismissed in the first instance. On that basis, this assessment found the landlord’s initial failure to escalate the complaint was unreasonable and represented service failure on its part.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its response to the resident’s reports of a blocked drain causing sewage to overflow in the property.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of the resident’s subsequent complaint.

Reasons

The resident experienced significant distress and inconvenience due to the landlord’s failures, which were not reflected proportionately in the landlord’s offer of compensation.
The wording of the landlord’s stage two response was factually inaccurate. It also unreasonably declined to escalate the resident’s complaint to the second stage of its complaints process. The evidence shows both issues had an impact on the resident.

Orders and recommendations

Orders

The Ombudsman orders the landlord to pay the resident a total of £700 in compensation within four weeks comprising:
1. £200 for the additional distress and inconvenience caused by its delays and failure to be sufficiently resolution focused
2. £150 for the distress and inconvenience caused to the resident by having to arrange for and carry out the required cleaning
3. £50 for the distress and inconvenience the resident was caused by its highlighted complaint handling failures
4. £300 which was previously awarded by the landlord

Any amount the resident has previously been paid should be deducted from this total.

The Ombudsman orders the landlord to separately reimburse the resident for the cost of its policy excess fee within four weeks. The landlord can ask for confirmation of this payment if its records did not capture the amount paid.

Recommendations

The landlord to share the details of this case amongst its staff and contractors for training purposes.
The landlord to consider implementing a regular maintenance schedule for the block’s drains.
The landlord to break down its compensation awards to improve its decision making and help residents to understand its rationale.
The landlord to ensure it is correctly signposting complainants to the relevant insurance policy in damage claims.
The landlord should provide evidence of compliance with the orders and confirm its intentions regarding the recommendations within four weeks of the date of this report.