Southwark Council (202304415)

REPORT

COMPLAINT 202304415

Southwark Council

30 January 2025

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 response to the resident’s:
   1. Reports of a leak from the toilet.
   2. Concerns about staff conduct.

Background

2. The resident is a tenant of the landlord. The property is a bungalow. The resident says he is disabled, and the landlord’s records note that he is vulnerable,
3. In March 2023, the resident requested repairs for damaged tiles and deteriorating shower sealant, after which an operative completed some works on 11 April 2023. This included works for the flooring, for which removal and refitting of the toilet was done.
4. The landlord received reports from 12 April 2023 of toilet blockages affecting the resident, and its contractor attended on at least 5 occasions before believing they had resolved the issue on 4 May 2023. They repaired a leak to a sewage pipe behind a false wall in the bathroom that was causing the toilet to overflow, which they attributed to the toilet being poorly installed.
5. The resident made a complaint on 5 May 2023. He said the toilet was still leaking, and he was unhappy that the issue had taken 3 weeks and 15 plumbers to try to resolve. He was unhappy that a hole had been left in the bathroom wall through which waste could be seen and smelled, and that no one had come out to pump out the sewage, as he had been promised. He said the smell was unbearable and the issue went against his human rights.
6. On 12 May 2023, the landlord’s contractor resolved the leak by fixing a connection issue with the sewage pipe and the toilet, and reported that further action was required to vacuum and disinfect behind the bathroom wall to remove around 2 to 3 inches of raw sewage.
7. On 16 May 2023, operatives removed some bathroom tiles, to enable separate operatives to clean behind the wall, and to enable the pest department to investigate reports the resident had made about rodents. The same day, operatives cleaned the sewage and pest control attended.
8. On 20 May 2023, the resident contacted the landlord. He noted that tiles needed to be put back, but he had not heard when the job would be completed. He also raised dissatisfaction with the conduct of the operatives who had most recently attended. He said they made his wife feel uncomfortable, and were overheard making derogatory remarks about her and threatening to run him over. He supplied footage from his video doorbell which he said evidenced their behaviour.
9. The landlord provided a stage 1 response on 23 May 2023. It said it had contacted a department to arrange to cover up the holes. It said the video had been passed to a relevant manager to review and that if behaviour was found to be inappropriate, the operative would be disciplined in line with policies.
10. On 30 May 2023, the pest control visited and advised the resident to call the landlord about flies he had started to experience. The same day, the resident contacted the landlord. He noted that it was scheduled to replace the tiles on 6 June 2023, but said a specialist cleaning team was needed to properly clean the sewage behind the bathroom walls, as he was now experiencing a pungent smell and sewage flies.
11. On 13 June 2023, the pest control visited again and reported that the resident was plagued with sewer flies in the bathroom, due to the sewer pipe leak, which were now entering other parts of the house. They asked the repairs department to raise the issue urgently, and said they believed the wall needed to be taken down to address it, but this was “just my opinion.”
12. On 5 July 2023, the landlord escalated the complaint, and on 19 July 2023 it discussed the complaint with the resident. It noted that he said operatives had scratched tiles with sandpaper. It noted that the leak was resolved, but the resident believed the wall needed to be knocked down and properly cleaned of all sewage. It noted that he said he was living with sewer flies, there was an unbearable smell and he seemed very distressed. It also noted that he complained about 3 repairs staff making sexual comments about his partner, commented on his disability, and threatened violence against him.
13. The landlord provided a stage 2 response on 4 August 2023. It detailed events in respect to the waste pipe leaking sewage and operative behaviour. It said that an operative would visit on 10 August 2023, and that after the current situation was assessed, cleaning and any other appropriate works would be arranged. It said that staff had been unable to make out what was said in the videos the resident supplied, but the stage 2 investigator offered to review this if he re-supplied the footage. It said that operatives had attended to inspect or rectify concerns, but it recognised the stress and inconvenience caused to the resident and apologised for this.
14. The landlord reviewed videos re-supplied by the resident in respect to staff conduct, and noted that conversation was not audible in the 2 clips supplied.
15. The landlord visited the property on 10 August 2023 and noted that areas were dry and no smells were detected. The resident continued to disagree that no cleaning was needed, and he supplied photos of alleged uncleaned sewage and highlighted that pest control had confirmed an issue with sewer flies was due to further cleaning being required behind the bathroom wall. The landlord obtained a 31 July 2023 pest control report, by a different operative to June 2023, which said holes and tiles just needed reinstating. The landlord subsequently told the resident that it did not agree that further cleaning was needed, and it would not raise any further works except tiles reinstatement.
16. In July 2024, after contact from the Ombudsman, the landlord noted that there was no record of actions after the staff complaint was referred to a manager in May 2023. It acknowledged a failing to address allegations, and said the issue had been passed to a manager to investigate, and the resident and 2 managers had been interviewed. In an August 2024 update to us, the landlord said it had been unable to conclude that the allegations were supported by any evidence, and the resident would be provided a copy of its conclusions.
17. The resident confirms that the landlord contacted him about staff conduct, but says it never followed up with a letter. He says 5 operatives attended but 3 did not do anything and stood in the living room, which felt overpowering for him and his partner. He says staff asked where his partner worked, what his disability was, and were overheard making sexual comments about his partner and saying they would run him over and fight him. He said the staff behaviour was threatening, derogatory and caused him nightmares.
18. The resident says there are still 2 holes in his bathroom wall where tiles are not there. He says he is reluctant to let guests use the toilet currently due to how it looks. He restates his concern that there is more sewage behind the wall than was hoovered, and says the bathroom smells in the summer. He says that as well as the landlord contacting him about staff conduct, an operative put a camera behind the bathroom wall around 2 months ago and said what he thinks is sewage is concrete. He says the operative also said there was still a leak, after which another operative came out and said they could not see a leak.
19. The resident states dissatisfaction that an operative used sandpaper to try to clean dirt in between tiles and scratched tiles. He says he was told it was standard practice to use sandpaper in between tiles and then fill this in, but says that the landlord did not fill in between the tiles.
20. The resident says he was caused much distress and inconvenience and time and trouble when he experienced the sewage leak and blockage, as he kept having to do lots of chasing after issues recurred. He raises dissatisfaction that the issue was originally caused by an operative who did the flooring.

Assessment and findings

The landlord’s response to the resident’s reports of a leak from the toilet

21. The landlord seemed to respond in a timely manner between 12 April and 12 May 2023 when the resident reported leaks. Therefore, its response to the sewage leak itself does not seem unreasonable. However, aspects of its response was not satisfactory.
22. The resident’s complaint contacts detailed the history of the sewage leak arising. However, the landlord’s responses did not reasonably acknowledge and address this. The evidence says that the sewage leaks arose after an operative removed and refitted the toilet during other works, and that subsequent contractors reported the toilet had been poorly installed. We encourage landlords to consider if a resident has been adversely affected by their action or inaction, and in this case the resident was clearly affected by action prior to the sewage leaks occurring, even if unintentional. It is not satisfactory that the landlord did not acknowledge this and consider compensation for the distress that was caused the resident through no fault of his own. This included distress from the sewage leak, blockages, smells and sewage flies.
23. The resident’s complaint contacts referred to issues such as operatives scratching his tiles. However, the landlord’s responses did not acknowledge and address this. The landlord should have taken steps to initially assess the alleged damage, set out its position in its complaint response, and referred the resident to its insurance procedure if necessary.
24. The resident repeatedly stated a belief that further cleaning of sewage was required behind the fake bathroom wall, that the wall may need removing for this, and that pest control had confirmed this. The landlord subsequently conducted a visit at which it considered no further cleaning was required, only reinstatement of tiles that had been taken down, and reviewed a July 2023 pest control report that confirmed this. More recently, in 2024, the resident reports that a camera inspection was carried out where operatives said that what he believes is sewage is actually concrete. These actions show that the landlord took some appropriate steps to inspect if further cleaning was required, and it is entitled to rely on the professional opinion of its staff and contractors. The Ombudsman does not see sufficient basis for the landlord to remove the wall, clean behind it and replace the wall and tiles, given it has reached decisions about this in an appropriate way through first-hand inspections.
25. However, the landlord did not acknowledge the June 2023 pest control report that said the resident was plagued with sewer flies, said it was believed the wall needed to be taken down, and asked the repairs department to urgently respond. This was always the pest control’s opinion that the repairs department had discretion to disagree with and no obligation to follow, but it is not evident this was responded to in a timely manner, and the August 2023 visit almost 2 months later is when the landlord seems to have first taken action to consider if further cleaning and removal of the wall was needed.
26. The June 2023 pest control visit seems to have significantly contributed to the resident’s belief that further cleaning was required and the bathroom wall needed to be taken down. The landlord’s handling and lack of acknowledgement of the report will have led the resident to feel that the landlord was not doing all it should, feel unsupported during the 2 month period between June and August 2023, and feel an ongoing sense of injustice.
27. Overall, the landlord’s actions seem to have reasonably established that no current action is required for the bathroom, apart from making good the holes and tiles, although a recommendation has been made for the landlord to monitor the issue and consider appropriate action if the sewage smell reoccurs.
28. However, the landlord did not satisfactorily address actions leading to the sewage leak, operatives scratching tiles, and delays and lack of consideration in respect to evidence that the pest control believed the bathroom wall needed to be taken down to address issues. These will have caused the resident distress and inconvenience, and leads the Ombudsman to find maladministration in the landlord’s response about the leak from the toilet

The landlord’s response to the resident’s concerns about staff conduct

29. The Ombudsman should note that it is not in our jurisdiction or expertise to make decisions about employment or personnel issues, as these are for a landlord’s internal HR procedure, but we can assess if a landlord has responded to complaints about staff in an appropriate way.
30. The landlord took appropriate action to refer issues to a manager to review, and to review video footage that the resident supplied which he said was evidence of his allegations about staff. It seems to have reached reasonable conclusions about the footage the resident supplied, as having reviewed this it is not evident that anything inappropriate was said. However, aspects of its response was not satisfactory.
31. The landlord asked the resident to re-supply footage at stage 2. While it was positive to offer to review the footage again at this stage, it clearly already had this on its files, and asking the resident to re-supply footage he had already sent does not seem necessary or entirely reasonable.
32. The landlord acknowledged, a year after its stage 2 response and after the Ombudsman contacted it for information, that its 2023 investigation during the complaint was inadequate. The original investigation seemed to focus entirely on the video footage that the resident supplied, and whether this supported his allegations, and it is not evident what the outcome was to any referral to a manager. This is not appropriate given the resident, who is disabled, alleged that staff made sexual comments about a female, were intimidating, and were overheard making threats.
33. The landlord subsequently investigated the matter in 2024 by speaking to the resident, speaking to staff involved, reviewing the video footage and compiling a report. It is not satisfactory that it did not investigate the allegations in this way originally, as such allegations will benefit from contemporaneous investigation rather than relying on retrospective recollection of events. It is also not satisfactory that the resident appears to have not received the outcome to the 2024 investigation.
34. The landlord shows it has now investigated the issue in an appropriate way, which has gone a long way to put things right, and the landlord’s conclusion that there is insufficient evidence of staff misconduct seems reasonable. However, the lack of a sufficient contemporaneous investigation is not satisfactory. This will have led the resident to feel, for some time, that his concerning allegations were not taken seriously enough. This leads the Ombudsman to find a service failure in the landlord’s response about staff conduct.

Determination

35. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was:
    1. Maladministration in the landlord’s response to the resident’s reports of a leak from the toilet.
    2. Service failure in the landlord’s response to the resident’s concerns about staff conduct.

Orders and recommendations

36. The landlord is ordered to, within 4 weeks, take steps to:
    1. pay the resident £300 compensation for the issues identified.
    2. liaise with the resident to inspect the scratched tiles, after which it should set out its position on whether it will take any action for any damage, and refer the resident to its insurer or insurance department if it decides to take no action.
    3. liaise with the resident to reinstate any remaining holes and tiles in the bathroom.
    4. send or re-send correspondence to the resident which sets out the outcome to its 2024 investigation about staff conduct.
37. The landlord is recommended to offer to inspect the bathroom for smells, and consider appropriate action, should the resident report experiencing the sewage smell again in the Summer.
38. The landlord is recommended to review how it handles referrals for urgent action from other departments such as pest control, to ensure these are considered in an appropriate and timely manner.