London Borough of Redbridge (202210639)

REPORT

COMPLAINT 202210639

London Borough of Redbridge

28 March 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 response to:
1. The July 2021 flood incident, including its handling of repairs.
2. The associated complaint.

Background

The resident has a secure tenancy which started on 20 October 2015. The landlord is also the resident’s local council. The resident lives in a two-bedroom ground-floor flat within a building. Around the rear of the building, there is a slope that faces towards the building.
The resident’s property flooded on 23 June 2016. The resident told the landlord that the highway drains next to the building had flooded due to rainfall. The resident believed that the drains at the side and rear of the building could not cope with the rainfall. The resident told his landlord that this caused a backflow of water and sewage to affect his property.
The resident asked his landlord to contact the water company about the drains on the highway. He suggested to his landlord it use a valve to prevent backflow in the future.
The resident told his landlord that the landscape, including drainage, around the building was on a downward gradient. He believed that this created a run of water from the land in the direction of the building and his property. The resident alleged that the landlord was aware of this. The landlord agreed to address the issues the resident raised.
The resident’s property flooded again on 25 July 2021. This led to the resident complaining to his landlord on 2 August 2021.
On 11 August 2021 the resident alleged that the recent flooding event happened because the landlord had not dealt with the concerns that he raised in 2016.
The landlord responded on 1 September 2021 at stage 1 of its complaints process and said:
1. its surveyor attended and ordered works to resolve the problems the resident experienced
2. the resident should make an insurance claim through his housing officer for any damage
3. it upheld the complaint and apologised for the inconvenience, frustration, or distress the resident experienced.
The landlord told the resident on 8 September 2021 that:
1. the sewer system failed on 25 July 2021 because of excessively high rainfall
2. it took a risk-based approach to flooding and targeted areas prone to flooding or blockages but ideally it would like to clean all gullies annually
3. it was performing emergency work and cleaning the affected areas
4. the water company was responsible for foul and surface water, but the surface drainage system has limited capacity and foul water sewers are prone to blockages
5. it had asked the water company to step up its cleaning programme and would work with them
6. the water company had a list of the properties that had been flooded by the sewage and a list of the properties at risk of flooding.
The resident escalated his complaint on 2 October 2021.
On 19 August 2022 the resident instructed solicitors to send a letter to his landlord to inform it that he intended to take legal action. This was for the damage caused to his property from the flood.
The landlord issued its final response on 31 October 2022. It said:
1. it checked the gullies on the main road were clear
2. there was no connection to the blockages in the highway drainage system and the drainage to and from the property as these were separate
3. the flooding was most likely caused by excessive rainfall which overwhelmed the capacity of drains causing a backflow of sewage
4. it was unable to uphold this part of the resident’s complaint as this was partly a water company issue
5. the resident should report breaches of the gullies to the water company as the water company prioritises reports directly from the public
6. it requested a full survey and review of the drainage systems around the resident’s property, except for on the highway
7. it would disclose the findings of the survey to the resident, together with a scope of works it would carry out to mitigate further water damage
8. it agreed to provide regular updates and upheld this part of the complaint
9. it recommended that the resident consider installing measures to reduce the risk of flooding.
The resident referred his complaint to this service. The resident:
1. complained about the landlord’s response to his concerns about drainage systems
2. felt the landlord should have done more to deal with flooding at the front of the building from the highway drainage
3. expressed dissatisfaction at the landlord’s actions to investigate and reduce future flood risk
4. said the landlord was aware the property was at a high risk of flooding at the time it was constructed
5. said that his landlord had not assessed the external damage or the internal damage to his property caused by the flood, including offering compensation.
On 10 January 2023 the resident’s solicitor prepared a report of the internal areas of the resident’s property in need of repair. The report identified the timber skirting board needed to be removed and replaced in the living room and hallway.
On 16 February 2023 the resident made an offer to settle the dispute over the repairs before issuing legal proceedings. This offer required the landlord to:
1. pay the resident £2,587 to cover the cost of wardrobes, a desk, cabinet and flooring
2. pay the resident £2,500 for the loss of enjoyment and inconvenience and £200 towards dehumidifier costs
3. complete the list of works listed in the report of 10 January 2023 within 120 days of the agreement
4. investigate the drainage system in front of the building and assess the gradient of the slope at the rear of the building.
The landlord accepted this offer on 5 July 2023. The resident informed us that the landlord has not completed the works listed in the agreement, nor has it investigated the drainage and the gradient. The resident told us that his wife was hospitalised with sepsis and his daughter experienced breathing difficulties. He believes that these were caused by mould growth following the flood.

Assessment and findings

Jurisdiction

The Housing Ombudsman is only able to investigate complaints about providers of social housing in respect of their housing activities. Councils have a variety of different roles under different enactments. Councils will not always be acting as social landlords.
Under paragraph 41(d) of the Scheme, the Ombudsman has no power to investigate complaints about councils where they are not acting as a social landlord or the landlord of a long lease.
Drainage to and from a property is a shared responsibility, landlords are only responsible for any drains under their property until they connect to the public sewerage system.
The local council acts as a lead local flood authority with responsibility for managing local flood risks. The local flood authority must coordinate efforts to manage flood risks. This includes working with the local water company and the local highway department. The local highway department is responsible for providing and managing highway drainage under the Highways Act 1980.
Accordingly, managing and mitigating flood risks across the borough for the benefit of its citizens is not a housing activity. For this reason, the Housing Ombudsman has no power to review the actions of the council acting as the local flood authority.
The water company is responsible for maintaining and cleaning the public sewer system. The water company must improve or extend the sewage system to allow for effective drainage. This is under section 94 of the Water Industry Act 1991 and the Water Services Regulation Authority can enforce this duty.
The Housing Ombudsman cannot consider the acts or omissions of the other parties where they were not acting on behalf of the landlord. This is under paragraphs 34(a) and 41(b) of the Scheme. That means we cannot look at the actions of the water company in this case.
The Ombudsman acknowledges the resident’s claim that his landlord has not kept to the terms of the settlement agreement. Paragraph 42(a) of the Scheme states that the Ombudsman may not consider a complaint that is made before a resident exhausts a landlord’s complaint procedure.
We have not seen any evidence that the resident has complained to the landlord specifically about it not keeping to the terms of the settlement agreement. Therefore, this part of the complaint is out of the scope of this investigation under paragraph 42(a) of the Scheme. The resident complained to his landlord about its response to damage to his skirting boards and cleaning. This investigation will therefore consider this.

The scope of the complaint

The Ombudsman also notes that the resident had concerns about flooding in 2016 which he reiterated after the flooding incident on 25 July 2021. The Ombudsman cannot fairly investigate complaints going back to 2016. Instead, this investigation will focus on how the landlord responded to the flood incident in July 2021.

The landlord’s response to reports of damaged skirting boards, cleaning, and health impact

The resident reported the damage to the skirting boards to his landlord on 2 August 2021. The resident also complained that his landlord had not sent a cleaning team to visit his property. The landlord claimed to have inspected the property, but the resident disputed this. As the landlord has not provided any inspection report we are unable to verify it conducted one. However, as the landlord was under no legal duty to clean the resident’s property, the Ombudsman finds no fault.
The evidence shows the landlord raised a job on 16 September 2021 to secure and reseal the loose skirting boards and paint the resident’s property. However, the repair records show, without explanation, that the landlord cancelled this job. The landlord’s repairs handbook gives a response time of 28 calendar days for the completion of routine repairs. However, there is no evidence that the landlord completed this repair.
The repairs to the skirting boards are outstanding 31 months after the resident reported their damage. The landlord told us that it has been trying to repair the resident’s skirting boards since August 2023 but experienced some delays. This was because the resident postponed the start of work on multiple occasions. The resident accepted that he had delayed the work. Whilst the delay is unreasonable, the Ombudsman is of the opinion that there is no evidence of detriment to the resident.
The resident told us that his wife was hospitalised with sepsis and his daughter had breathing difficulties. The resident believed that mould growth after the flood caused these conditions. This has caused the resident distress.
The Ombudsman notes that there are no specialist reports showing a connection between the flood, any mould growth, and the reported health impacts. We have no reason to doubt the resident’s account of how his family has been affected. However, in the absence of such evidence, the Ombudsman is unable to conclude they are related. In any event, this assessment may be better suited to a court that has the expertise to consider a personal injury claim.

The landlord’s actions following the July 2021 flood

On 11 August 2021 the resident told his landlord that he believed the public sewage system at the front of his property was inadequate. He also repeated his concerns that the slope to the rear of his building may have caused flooding or drainage issues.
The landlord’s records indicate that on 19 August 2021, it asked its contractors to investigate a suspected collapsed drain. This was near the resident’s property. However, the landlord has not provided details of the outcome of this investigation. In the absence of evidence, the Ombudsman is not satisfied that the landlord acted reasonably.
On 8 September 2021 the landlord told the resident that it would ask the water company to increase its cleaning of gullies by regular maintenance. The Ombudsman considers that this was a reasonable step. This is because the water company was responsible for the public sewage system and the resident had expressed concerns about this too.
However, the resident also expressed concerns about the drainage on the landlord’s land. There was uncertainty over what part, if any, this may have played in the 2021 flooding incident. The Ombudsman considers that it would have been reasonable for the landlord to have arranged a CCTV survey in 2021. This would have allowed the landlord to see if there were any defects in the drainage system within its land.
On 31 October 2022 the landlord told the resident it would ask for a full survey and review of the drainage systems around the resident’s property, except on the highway.
On 2 December 2022 the landlord did a “CCTV drainage survey” and agreed to “jet out inspection chambers around the block”. Whilst this was an appropriate step it took the landlord 16 months from the 2021 flood to do this. In the Ombudsman’s opinion, in the absence of any explanation, this was an unreasonable period. The landlord has not provided us with a copy of this survey so we are unable to assess the landlord’s actions in respect of it.
The landlord completed another drainage survey on 20 April 2023. This revealed that there were no major defects on most drains. However, it also noted that there were incoming junctions from “MH04 Connection X to MH05” and at “MH06 Connection X”. It also noted the joint displacement at “MH08” and explained there was a buried manhole it could not survey.
We have not seen evidence that the landlord reviewed this or conducted further investigations. The Ombudsman considers that this would have been a reasonable course to take. The landlord’s delay in doing the surveys and not investigating further was a service failure.
The resident believed the landscape sloping towards the building led to water runoff towards the building. This led to the resident being concerned that his property was more prone to flooding. Drainage is a complex issue that would require assessment by a specialist.
The landlord’s own disrepair survey of 5 September 2022 recommended that the landlord change the landscape. This was to improve drainage and help prevent future flooding. The Ombudsman considers that given this recommendation it would have been reasonable for the landlord to have investigated the residents’ concerns about landscaping.
The landlord could have sought advice from the lead local flood authority or considered a sustainable drainage design. These would have been reasonable and proportionate steps to have taken. There was no evidence that the landlord did this which is a service failure.
The resident told the landlord that the construction of his property was flawed and there were inherent defects. He believed that his landlord was aware of these and that they increased flood risk. A landlord is not always responsible for latent defects unless that is the only way to effect a lasting repair to a property. In this case, the landlord should consider what flood risk mitigations it can take to protect the resident’s home.

The landlord’s complaint handling

The landlord should have responded to the resident’s complaint at stage 1 within 10 working days by 16 August 2021 but responded on 1 September 2021, this was 11 working days after the deadline.
In its stage 1 response the landlord accepted that it had not provided an acceptable service. It promised the resident that it would reinstate the resident’s home and directed him to his insurer. However, the landlord failed to address important areas of the resident’s complaint. It did not comment on his concerns about the drainage, landscape, or flood mitigation.
The landlord should have responded to the resident’s complaint at stage 2 within 20 working days and by 29 October 2021. It responded on 31 October 2022, over a year later. This added to the resident’s frustration and delayed the resident being able to refer his complaint to us.
In the landlord’s stage 2 response it said that the rainfall was too much for the public sewers and that this likely caused the flooding. However, it had not surveyed the drainage systems on its own land at the time it responded. It also failed to explain to the resident what inquiries it had made with the water company. The Ombudsman considers the landlord did not explain to the resident how it came to this conclusion.
The landlord upheld the resident’s complaint at stage 1 and partially upheld his complaint at stage 2. The Ombudsman expects landlords to take steps to put things right when things have gone wrong. The landlord’s compensation guidance suggests it should pay residents compensation where it upholds a complaint or where there have been delays. The Ombudsman has therefore included an order for compensation to reflect the distress and inconvenience caused to the resident.
Moreover, in the landlord’s final response it said it would conduct a full survey and review of the drainage systems around the property. The landlord said it would inform the resident of what mitigations it might put in place and keep the resident informed. We have not seen evidence that it has done this.

Conclusions

In summary, the Ombudsman has found the following:
1. the landlord delayed arranging a CCTV drainage survey on its land after the July 2021 flood. It took 16 months to do this without any explanation. The delay was unreasonable however the landlord has since undertaken the survey
2. the landlord failed to repair the damaged skirting boards in the resident’s property he reported on 2 August 2021. This was a service failure as it said it would in its stage 1 response
3. the landlord failed to investigate or respond to the resident’s concerns about the possibility of the landscape contributing to flooding. This was a service failure as the landlord said it would at stage 2
4. the landlord failed to demonstrate the basis for concluding the flooding was related to the public sewage system
5. the landlord took over 12 months to respond to the resident’s complaint at stage 2. This amounted to maladministration as the landlord having partially upheld the resident’s complaint failed to address the detriment the resident experienced. The delay in complaint handling stopped the resident from bringing their complaint to the Ombudsman sooner which caused detriment.

Determination

In accordance with paragraph 41(d) of the Scheme, the Ombudsman has no jurisdiction to investigate the council acting as a flood authority as this is not a housing activity.
In accordance with paragraphs 34(a) and 41(b) of the Scheme, the Ombudsman has no power to investigate the actions of the water company, as they are not a member of the Housing Ombudsman Scheme, nor were they acting on behalf of the landlord.
In accordance with paragraph 42(a) of the Scheme, the Ombudsman has not investigated the complaint about the landlord’s compliance with the settlement agreement, as there is no evidence this has exhausted the complaint procedure.
In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s handling of the July 2021 flood incident, including repairs.
In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of the resident’s complaint.

Orders

Within 28 days of the date of this determination the landlord must:
1. write to the resident to explain when and how it will investigate his concerns about the landscape contributing to the flooding
2. contact the resident with clarification of the outstanding work to the skirting boards and when this will be done
3. pay the resident £450 in compensation which is made up of:
  1. £100 for the distress and inconvenience caused by its handling of the resident’s concerns about the flood incident
  2. £150 for the distress and inconvenience caused by the delayed repairs to the skirting boards
  3. £200 for its failures in complaint handling.
  4. Provide this service with evidence of compliance with the above orders.
Within 56 days of the date of this determination the landlord must review the drainage surveys and write to the resident with details of any flood mitigation measures it will take. The response must indicate when these will be in place. The landlord must provide us with a copy within 56 days of the date of the determination.

Recommendation

The Ombudsman recommends that the landlord reviews the flood risk to the building annually before high rainfall periods. The Ombudsman further recommends that the landlord keep the matter under review and consider the inclusion of flood barriers.