Shepherds Bush Housing Association Limited (202107108)

REPORT

COMPLAINT 202107108

Shepherds Bush Housing Association Limited

14 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

The complaint refers to the landlord’s handling of:
1. The resident’s reports of a blocked drain and his request for compensation.
2. The associated complaint.

Background and summary of events

The resident is a tenant of the landlord. The property is a flat in a building comprised of similar properties.
The landlord’s records show that the resident first reported that his sink was blocked on 11 May 2021. The landlord arranged for a contractor to attend on 12 May 2021. The contractor could not unblock the sink and identified that the issue was likely to be in the main stack pipe and the repair would require two staff due to safety reasons. It was recommended that the manholes outside of the property were lifted and CCTV was used to identify the blockage.
The landlord arranged for further inspections to be carried out by its drainage contractors between 14 May 2021 and 20 May 2021. They lifted several manholes outside the building in an attempt to find the source of the blockage but were unsuccessful in finding the source. The contractors believed that the internal stack pipe ran to a manhole cover located in the corridor of the property but could not carry out an inspection straight away due to the damage that would be caused to the flooring. Around this time, it was recommended that the stack pipe was accessed from the flat above the resident’s property.
On 9 June 2021, the resident raised a formal complaint with the landlord and explained the following:
1. The waste pipe to his kitchen sink was blocked and he had not been able to use his washing machine since May 2021 due to the blockage. He said that he had first reported the issue on 11 May 2021. He noted that several contractors had attended but not resolved the issue. Since the previous visit, he had contacted the landlord for updates but no further appointments had been arranged.
2. Given the landlord’s failure to complete the repair within its published timescales, he asked to be compensated £50 in line with the landlord’s compensation policy. He added that he had been unable to use his kitchen during this time and asked for a 40% rent rebate until his kitchen was back in full working order. He also asked to be compensated for additional expenses he had incurred by needing to use a laundrette. This amounted to £40 between 11 May 2021 and 8 June 2021. He added that this would cost an additional £10 per week for each week until he could use his washing machine again.
3. He asked the landlord to arrange for the blockage to be resolved either by inserting a water jet to remove the blockage, or, if that failed, to access the drain from the flat above and dislodge the blockage as previously recommended. He added that on their last visit, the contractors had damaged the hep trap installed below the kitchen sink which had cost him around £30.50 to install and needed replacing. He requested that the landlord acknowledge his complaint and confirm the timeframe in which he could expect to receive a response.
The evidence provided suggests that the resident’s complaint was not acknowledged by the landlord and he raised his concerns again on 24 June 2021.
The landlord issued its stage one complaint response to the resident on 9 July 2021 and explained the following:
1. It confirmed it had referred the matter to another internal team to arrange access to the neighbouring flat but the tenant of that property had passed away and the keys had not been returned to the landlord. It explained that the property was not legally in its possession at the present time. It had tried to arrange a handover but this had not happened. It apologised for any stress or delays this had caused the resident. It said that it had now been granted permission to change the locks and gain access to the property but it would need to assess whether there were any health and safety risks to its contractors before they could attend. It confirmed that the locks were due to be changed on 6 July 2021 and it would arrange for the contractors to attend once the property had been inspected.
2. The landlord explained that the 40% rent reduction outlined in its compensation policy would only apply if there was a complete loss of kitchen usage. As the issue was limited to the resident’s kitchen sink and washing machine, he would not qualify for a rent reduction.
3. In view of the service failures it had identified, the landlord offered £95 compensation, comprised of: £50 for its failure to complete the repair within its published timescales, £25 as a gesture of goodwill and £20 for the delay in issuing its stage one complaint response. It confirmed that the resident could escalate his complaint to stage two of its complaints procedure if he remained dissatisfied with its response.
The resident asked for his complaint to be escalated to stage two on 20 July 2021 and explained the following:
1. He expressed dissatisfaction that the landlord had incorrectly referred to the flat below his twice when the flat in question was actually the flat above his.
2. He did not agree with the landlord’s claim that it could not gain access to the flat above his and that it was not in legal possession of the property. He understood that, as the landlord owned both properties, it had a right to gain access, especially to void properties, regardless of whether the previous tenant’s belongings were still inside. He said he had seen the landlord’s employees entering the flat above his multiple times since it became empty, this was before and after the drain issues had started.
3. An engineer who had attended on 19 July 2021 had entered the property above and explained that the blocked drain had nothing to do with the flat above. The resident concluded that even if the landlord had not been able to gain access, this was not a valid reason for not being able to do the drainage repair in a timely manner.
4. He expressed dissatisfaction that the landlord’s offer of compensation made no reference to the additional expenses he had incurred by using a laundrette between 11 May 2021 and 8 June 2021. He noted that the landlord’s compensation policy referred to consequential expenses and said that the costs he had now incurred amounted to £110.
5. He expressed dissatisfaction with the landlord’s decision not to agree to the 40% rent reduction because he had not lost full use of his kitchen. He felt the landlord used this excuse to avoid paying compensation. He noted that the 40% rent reduction would now amount to £346.01 based on his current rent over eight weeks. He advised that his sink was still blocked and he was experiencing a sewage smell as the contractor had previously broken the hep trap below his sink. He noted that the hep trap needed to be replaced.
The landlord’s records show that contractors attended the property on 27 July 2021 to access the internal manhole cover to identify whether the resident’s kitchen waste pipe ran through it. The contractors also surveyed the external manholes and found debris in one of the pipes. The contractor could not clear the blockage and confirmed that access was required to the flat above the resident’s. the internal communication also noted that the resident was due to be away from the property and that the appointment would need to be arranged for early September 2021.
The landlord issued its stage two complaint response to the resident on 20 August 2021 and explained the following:
1. It apologised for the errors in its previous complaint response where it had incorrectly referred to the flat below when it should have referred to the flat above. It explained that it had made every effort to gain access to the flat above once it was aware of the issue but there had been delays which impacted its ability to resolve the issue.
2. It advised that its contractors had attended and advised that they needed to access the stack pipe to carry out the necessary tests. It had proposed to expose the stack pipe in the resident’s bedroom but he had refused due to the disruption this would cause.
3. It maintained its position regarding the resident’s request for a rent reduction. It had taken into consideration the impact the issue had on the resident in the calculation of his compensation. It increased its offer of compensation to £200 in recognition of the stress and inconvenience the matter had caused the resident.
The resident referred his complaint to this Service as he remained dissatisfied with the landlord’s response. He noted that the landlord had said that he was away from the property in August 2021, thus blocking access to the flat. He confirmed that this was not the case and denied telling the landlord that he would be away during that time. He maintained his position regarding the rent refund and wanted this to be paid, along with his laundry expenses for the time he had been without a washing machine.
The resident confirmed that the pipes causing the blockage were successfully unblocked on 25 November 2021 by the landlord’s contractors. He requested the following as a resolution to his complaint:
1. Reimbursement for his laundrette costs for the period between 11 May 2021 and 25 November 2021. He explained that he completed two washes per week which amounted to £5 per wash. He also completed two drying cycles for each wash amounting to £1.50 each. Over the 29 weeks he was without use of his washing machine, he calculated the cost to be £464 (comprised of £10 per week x 29 weeks = £290 and £6 per week x 29 weeks = £174)
2. A 40% rent reduction for the loss of his kitchen. He calculated this to be £1081.25 between 8 June 2021 (28 days after the first report) and 25 November 2021.
3. He wanted the landlord’s previous offer of £200 compensation to be paid.
4. He expressed further dissatisfaction that flood damage was caused to his property on 18 November 2021 by a drainage contractor attempting to unblock the stack pipe from the flat above. This resulted in water damage to his sofa, wooden flooring and personal files. He advised that this matter had added to the significant inconvenience he had already experienced and asked for additional compensation of £303.71 which was described in an accompanying surveyor’s report as the cost of repairing/replacing the damaged items.

Assessment and findings

Scope of investigation

The resident has expressed dissatisfaction regarding the flood damage that was caused to his property on 18 November 2021 by the landlord’s contractors in an attempt to resolve the blocked drain. He has also requested compensation for the damage caused by the contractors during this visit. As this is a separate issue to the complaint raised with the Service, which took place after the landlord issued its final response to the complaint, this is not something that this Service can adjudicate on at this stage, as the landlord needs to be provided with the opportunity to investigate and respond to this aspect. The resident will need to contact the landlord and, if appropriate, raise a separate complaint if he wishes to pursue this matter further. If the landlord refers the claim for the resident’s damaged possessions to its liability insurers, then the Ombudsman would not be able to further review the resident’s concerns as we cannot review insurance matters. If the claim is considered outside of the insurance process, the resident may be able to raise a new complaint to the Ombudsman if he is unhappy with the landlord’s final response to his new complaint.

The landlord’s handling of the resident’s reports of a blocked drain and his request for compensation.

The tenancy agreement confirms that the landlord would be responsible for repairs needed to drains and pipes within the property. The landlord’s repairs policy states that an emergency repair, i.e. a repair that is required to sustain the immediate health, safety or security of the customer at risk, should be attended to within four hours and made safe. If follow-on work is required, a routine repair would be raised. All non-emergency (routine) repairs should be attended to within 20 working days.
The landlord’s compensation policy states that it would pay £10 +£2 per day (up to a maximum of £50) for failure to complete repairs within published timescales and for each additional day the work remained outstanding. The landlord may also pay compensation at 40% of daily rent for loss of kitchen facilities where a customer is not able to use a room or there are significant limitations on the use of the room after 28 days. The landlord’s compensation policy also allows for discretionary payments to be made where there have been consequential expenses (incurred at a resident’s expense due to the landlords action or inaction). The policy notes that expenses would be paid on a discretionary basis and would not usually be paid unless agreed in advance. It notes that the landlord would require receipts or proof of expenditure for any expenses incurred.
In this case, it is not disputed that the length of time taken by the landlord to identify and resolve the blockage between May 2021 and November 2021 was significant. The landlord initially acted reasonably by arranging for a contractor to attend within 24 hours. Follow on appointments were required as the source of the blockage could not be established. The landlord’s records show that the contractors made reasonable efforts to find the source of the blockage by using CCTV and lifting manholes to determine the cause. With repair issues regarding leaks and pipe blockages, it can take additional time to locate the source of the issue, thus requiring follow-on appointments. The landlord was entitled to rely on the opinions of its qualified staff and contractors to determine the next course of action having not found the source of the blockage. it was recommended that the stack pipe was accessed from the flat above the resident’s as it was an empty property and could contain the cause of the problem.
In its complaint responses, the landlord explained that it experienced difficulty accessing the property above to carry out further inspection of the drain blockage as the property was not in its legal possession. Whilst gaining access to the property above is likely to have been complicated by the passing of the former tenant, it would be reasonable to expect the landlord to enter the property to inspect it once the police had concluded any investigation into the circumstances of the tenant’s death and once the landlord had checked it was safe for its contractors to enter the property. Furthermore, the landlord would be entitled to access the property at any time to carry out repairs provided that reasonable notice was given to the former tenant’s family if required. The landlord has not provided evidence which suggests that the former tenant’s family had raised any objections in this case or that it had been proactive in its approach to the issue. There was likely to be some delay due to any necessary environmental cleaning which needed to take place before the contractors could safely attend, however, the landlord’s explanation of the delay in this case was not satisfactory and does not explain the entirety of the delay between May 2021 and November 2021.
Furthermore, the resident has raised concern about the landlord’s records in that it stated that he was going to be away in August 2021 and would not be available to allow access. There is a lack of evidence to confirm what was advised around this time. However, regardless of whether the resident was away or not, this would not have prevented the landlord from accessing the property above, attempting to resolve the issue and checking whether the issue was resolved on the resident’s return. The landlord has not provided evidence that any further action in relation to the drain blockage was taken during this time.
It is understandable that the loss of his kitchen sink and washing machine was likely to have been inconvenient for the resident, however, under the landlord’s compensation policy, a rent reduction is only applicable where a resident has lost total use of a room. The landlord has provided a reasonable explanation as to why it would not offer the resident a rent reduction for the period in question. The resident had not lost the use of his cooking facilities or other elements of his kitchen for the purpose of cooking or storing food and was otherwise able to use his kitchen. As such, a rent reduction was not warranted in this case. The resident would be entitled to compensation for distress and inconvenience caused by the loss of use of the sink and washing machine, but this would not be linked to the cost of his rent.
The landlord offered the resident £180 compensation in recognition of its failure to complete the repair within its published timescales and the inconvenience caused. This amount is not considered proportionate to the impact on the resident in this case. In line with the Ombudsman’s remedies guidance, amounts of £250 to £750 are more proportionate where there has been considerable service failure such as failure over a considerable time to act in accordance with policy – for example to address repairs or address aspects of a resident’s complaint. In this case, it would be appropriate for the landlord to offer a total of £300 for the inconvenience caused by delays in completing repairs. As above, this takes into account that the delays were partly outside the landlord’s control but its overall handling of the repairs was unsatisfactory.
In his complaint, the resident also asked to be reimbursed for the consequential expenses he had incurred as a result of not being able to use his washing machine for the period in question. Over the 29 weeks he was without use of his washing machine, he calculated the cost to be £464. The resident’s request in this case was reasonable as he had no other alternative means of washing or drying his clothes in the property due to the drainage issue and there is no evidence to suggest that the landlord had offered alternative options, despite being aware that he could not use the washing machine.
Whilst the resident would usually be expected to provide receipts in order for the landlord to consider the request in line with its policy, there is no evidence to suggest that the landlord had asked for these or acknowledged the resident’s request for a refund of his laundry costs in its complaint responses. It would be unreasonable to ask the resident to provide receipts now due to the length of time which has passed. The costs the resident has claimed in this case are reasonable and not excessive. It would therefore be appropriate for the landlord to cover the costs of the resident’s laundry expenses between 11 May 2021 and 25 November 2021 in line with its policy on consequential expenses and pay the resident £464 for this.
In summary, there has been service failure by the landlord in regard to its handling of the resident’s reports of a blocked drain and his request for compensation. There was an unreasonable delay in resolving the blocked drain and the explanation provided by the landlord was not reasonable given the significant delay between May 2021 and November 2021. Furthermore, the landlord has not demonstrated that it kept the resident regularly updated on the repair or addressed the resident’s request to be reimbursed for his laundry costs for the time in question. As such, the landlord is ordered to pay additional compensation to the resident as detailed below

The landlord’s handling of the associated complaint.

The landlord’s complaint policy states that it has a two-stage complaint procedure. At stage one, the landlord should provide a response within 10 working days. If the resident remains dissatisfied, they can escalate their complaint to stage two. At stage two, the landlord should respond within 20 working days. If, at any stage, there is likely to be a delay, the landlord should contact the resident, explain the reasons for the delay and provide a new complaint response timeframe. The landlord would be expected to address each aspect of the resident’s complaint in its complaint responses.
The resident initially asked for a formal complaint to be raised on 9 June 2021. There was a delay in acknowledging the complaint and the landlord issued its stage one complaint response on 9 July 2021. The landlord acknowledged the delay within its stage one complaint response and offered £20 compensation. The landlord issued its stage two complaint response slightly outside of the its proposed 20 working day timescale, however, the delay was unlikely to have caused significant inconvenience to the resident. Overall the landlord has offered compensation which was in line with its compensation policy and resolves this aspect of the complaint satisfactorily.
However, whilst the landlord has acknowledged and apologised for the delay in responding to the complaint at stage one, it has failed to address significant aspects of the resident’s complaint, including the damage caused to the hep trap beneath his sink and his request for compensation for consequential damages due to his washing machine being unusable. This amounts to a service failure by the landlord in that it did not fully address the resident’s complaint. It is recommended that the landlord offers additional compensation to the resident in recognition of the inconvenience this caused. The landlord should also write to the resident to confirm whether it will replace the hep trap below his sink or reimburse him for the cost of doing this himself.

Determination (decision)

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 reports of a blocked drain and his request for compensation.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in regard to its handling of the associated complaint.

Reasons

There was an unreasonable delay in resolving the blocked drain and the explanation provided by the landlord was not reasonable given the significant delay between May 2021 and November 2021. Furthermore, the landlord has not demonstrated that it kept the resident regularly updated on the repair. Whilst the landlord offered compensation in recognition of the inconvenience caused to the resident, this was not considered proportionate in view of the distress and inconvenience he experienced as a result of the landlord’s errors. The landlord should now offer additional compensation, as set out below.
The landlord took reasonable steps to acknowledge and apologise for the delay at stage one of its complaints process by offering £20 compensation. This amount was not proportionate given the landlord’s additional failure to address the resident’s request for his laundry expenses to be reimbursed or his concerns regarding his damaged hep trap.

Orders

The Ombudsman orders that the following actions are taken within four weeks:
1. The landlord is to pay the resident £894.50, comprised of:
  1. £300 in recognition of the delay in resolving the blocked drain. This includes the previous £180 offered for its failure to complete the repair within published timescales and the inconvenience caused to the resident.
  2. £464 in recognition of the additional expenses the resident incurred as a result of not being able to use his washing machine for the period in question.
  3. £100 in recognition of the inconvenience caused by the delay in issuing a stage one complaint response and the landlord’s failure to address the resident’s concerns regarding the damaged hep trap and his request for laundry expenses.
2. The landlord should contact the resident and confirm that it will either replace the hep trap under the sink or reimburse the resident for the cost of replacing this himself.

Recommendations

It is recommended that the landlord considers the resident’s request for £303.17 compensation following damage to his property on 18 November 2021 by its contractors and responds accordingly to confirm its position on this.