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Westminster City Council (202311501)

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REPORT

COMPLAINT 202311501

Westminster City Council

20 December 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

  1. The complaint is about the landlord’s handling of the resident’s:
    1. Reports of leaks in the kitchen.
    2. Associated formal complaint.

Background

  1. The resident has been the secure tenant of the property, a flat in a large block, which is owned by the landlord, a local authority, since 2020.
  2. The drain from the kitchen sink was installed prior to the resident moving in, with a backfall which meant it did not drain properly. The resident first raised concerns about poor drainage in late 2020.
  3. In October 2022, the resident reported to the landlord that the sink was blocked, a plumber visited and he unblocked it. Another plumber attended on 6 December 2022 and replaced the waste pipe with a ribbed flexible pipe. On 18 December 2022, water from the drain flooded the kitchen and 2 other flats. On 3 January 2023, the landlord told the resident it had passed the matter to its contractor.
  4. The resident complained formally on 14 January 2023. He said the sink had been blocking regularly since 2020 and had been installed in a way which did not meet Building Regulations. This had the immersion tank by the sink leading to further damage to the skirting in the kitchen. It had also damaged his washing machine and cold-water pipes in the kitchen caused condensation to drip onto electrical sockets. He asked the landlord to box them and said he wanted the problems solved as soon as possible.
  5. In the landlord’s stage 1 response of 27 January 2023 it apologised for the drainage problem and said a plumber had visited and had problems installing a pipe. It said it was considering raising the work surfaces to provide more room to allow a fall on the pipe but would visit to investigate further options. It would provide further information and a timetable for completion of the works in early February 2023 but it would not box in the cold-water pipes as it did not believe this was necessary.
  6. The resident escalated his complaint on 3 April 2023, saying the landlord had failed to carry out any of the repairs promised in its stage 1 response or respond to his assertion that the drainage did not comply with Building Regulations. He had also spoken to the officer who signed the response who said they had not written it. He said that, since his complaint, matters had got worse and the sink was completely unusable, taking several hours to drain. He could not use his washing machine as doing so damaged the machine and the clothes in it. His immersion boiler was leaking into the flat below. He said he wanted the landlord to arrange for the repairs immediately to comply with Building Regulations.
  7. On 6 April 2023 the resident wrote to the landlord saying its plumber had caused a flood from the property into 2 neighbouring flats. He said an emergency plumber came on 5 April 2023 but could not stem the leak so he asked the landlord to do so within 2 days to prevent further damage. The landlord’s contractor completed repairs successfully on 24 April 2024.
  8. In the landlord’s stage 2 response of 12 May 2023 it apologised for “avoidable delay” in completing the works and for its failure to update the resident about its plans adequately. It said it did not indemnify residents for damage to their personal property such as washing machines and, instead, advised them to take out household insurance. However, if he felt it had been negligent and he had suffered damage as a result, he should make a claim against its liability insurance. It offered him £250 compensation.
  9. In the resident’s submissions to the Ombudsman he said the landlord should have acknowledged that the drainage did not comply with Building Regulations and it had taken 28 months to resolve the matter causing significant stress and inconvenience. As a result, he wanted £4,000 compensation.

Assessment and findings

The scope of the investigation

  1. The resident has said that he first raised his concerns about drainage from the kitchen sink shortly after moving in in December 2020. He says that, at that time, the landlord’s plumber visited and said they would return to deal with the issue shortly afterwards but failed to do so. He also says that, because the drains were not installed in a manner which complied with the Building Regulations, we should investigate his complaint, and consider the impact on him, from the date that he first moved into the property.
  2. However, the resident did not raise a formal complaint about the issue until January 2023. It is important that complaints are brought to the attention of the landlord within a reasonable time of the problem occurring, usually within 12 months, so that the landlord has an opportunity to resolve the issues whilst they are still ‘live’ and the evidence is available to properly investigate them (reflected at paragraph 42.c of the Scheme). As a result, this investigation has focused on events within that 12-month timeframe which, on the facts of the case, begin in October 2022. Anything that happened before this date is considered for context but not formally assessed or determined as part of the investigation.
  3. As to whether the drain complied with Building Regulations, the landlord accepted that the drain did not function correctly and that it had a duty to replace it and did so. Therefore, while accepting that Building Regulations contain requirements for minimum acceptable gradient limits on waste pipes, this issue is not specifically assessed or determined as part of the investigation.

The resident’s reports of leaks in the kitchen

  1. The landlord’s repairs policy says it will attend to “immediate” repair jobs which pose an immediate health and safety risk within 24 hours and to “urgent” jobs “which negatively impact on an occupant’s access to utilities or need repair such as blocked sink” in 1 to 7 days. It also recognises that, under the right to repair scheme, it should repair blocked drains and sinks within 3 days.
  2. The available evidence suggests that the problem with the sink was an obvious one: the waste pipe had a backfall and, as a result, it frequently became blocked. The landlord’s plumber visited on the day the resident reported the problem, in line with its policy timescales, and said they would raise a repair to ensure the problem was resolved.
  3. The landlord’s surveyor attended on 25 October 2022 which was, again, an appropriate response within a reasonable period. It is clear from the evidence that, given the layout of the building, replacing the pipe with one with an appropriate gradient was problematic as there was insufficient space to fit it in without carrying out some fairly significant works. Despite this, the subsequent delays were not acceptable, and there is no record that the landlord took any further action at this time.
  4. The resident reported the blocked drain again on 15 November 2023 and the landlord’s evidence suggests a plumber attended on 24 November 2023, outside the 7 days specified in its policy. This was, again, an inadequate response. A plumber attended on 6 December 2022 and installed a flexible ribbed waste hose in place of the existing plastic pipe but the resident submits that this only made matters worse.
  5. From 6 December 2022, blockages became more frequent. The resident says he could no longer use his washing machine as foul water from the drain washed back into it and spread food waste into the machine damaging his clothes and the machine itself. As he had a small child, this meant lengthy weekly visits to the laundrette. On 18 December 2022, water leaked from the property into 2 neighbouring flats. All of these were foreseeable consequences of the landlord’s inaction and inappropriate actions.
  6. On 3 January 2023, the landlord emailed the resident to say it had passed the matter to its contractors for action but, by then, more than 6 weeks had passed since his initial report. Given the importance placed on drainage in the landlord’s own policy, this was an inappropriate delay, even allowing for the difficulties in installing a drain with a sufficient gradient.
  7. In response to the resident’s formal complaint of 14 January 2023, the landlord inspected the property on 25 January 2023. In its stage 1 response of 27 January 2023, it “upheld” the complaint about its failure to fix the waste pipe. It said it had authorised repairs in December 2022 but had found the planned solution would not work. It said it was still investigating options to fix the problem and would respond by 3 February 2023. It said that it might raise the kitchen work surfaces to allow for a greater gradient on the waste pipe.
  8. Given that 3 months had passed since the initial report, this response did not address the ongoing problem adequately. The landlord’s apology was insufficient and it made no offer of compensation which, given the ongoing delay, would have been appropriate. The landlord did, however, say it would send someone to deal with the skirting, the leaking immersion tank and the dripping tap, which was an appropriate response to these issues. The resident had not raised these before his complaint so the landlord treated them as a report of a concern and acted appropriately.
  9. The landlord also said that it would not box the cold-water pipes as, in its view, this was not necessary. While this was clearly not the response the resident wanted, it was a view the landlord was entitled to take if it believed it was not necessary to do so.
  10. Unfortunately, on the evidence, while the landlord did carry out the minor works it had undertaken to do, it did not go on to solve the resident’s main concern; the poorly installed drainpipe. This clear service failure meant that the resident opted to escalate his complaint on 3 April 2023. By this time, 59 days had passed since 3 February 2023 by when the landlord had promised to contact the resident with a solution to the drainage problem.
  11. In his escalation request letter, the resident said he had spoken to a senior manager on 1 February 2023 who had undertaken to solve the problem. He had received notifications of appointments for visits by a contractor on 14 and 21 March 2023 and had taken time off work to attend both. He described them as “a complete waste of time” because the contractor “assured me he will book repairs in, but I have not heard back.”
  12. He said the kitchen sink was unusable as it took several hours to drain. The immersion boiler was leaking and, on 2 April 2023, there was a further leak into the flat below. His washing machine was “damaged beyond repair” and he was spending £15 per week at the launderette. He said he wanted the landlord to break through the wall, create a new connection with the main drain with sufficient drop to allow adequate drainage and replace the kitchen units.
  13. In the landlord’s stage 2 response of 12 May 2023, it apologised for the “avoidable delay” in dealing with the drain problem. The landlord’s contractor had attended and carried out the works the resident had requested on 24 April 2023. It also apologised for its failure to provide any updates about the delays.
  14. The landlord offered the resident £250 compensation for its failures (£150 for delays between 23 January and 24 April 2023, £50 for the inconvenience these delays had caused, £30 for poor communication and £20 for the delay in providing a stage 2 response).
  15. The resident was not satisfied with this response. He wrote a “letter before claim” to the landlord on 8 June 2023 in which he said he wanted £3,454 comprising £749 for a new washing machine, £405 for laundrette expenses, £338.85 for the inconvenience of using the laundrette, £502 for having to wash vegetables in the bathroom, £140 for damage to clothes, £759.28 for the inconvenience of dealing with the blocked sink for 2 years and £550 for the stress to his family of dealing with the drains since he moved in. In September 2023, the resident wrote a further letter to this Service in which he increased his total calculation of the appropriate sum to be paid to fully compensate him for the landlord’s failures to £4,000.
  16. In this Service’s view, the landlord’s compensation offer was too low for two reasons:
    1. It only offered compensation for its failures between January and April 2023 when, in fact, it had failed to take adequate action since 18 October 2022.
    2. Its Housing Compensation Policy says it will offer “ex gratia” awards of £50 to £100 for “low impact” failures, awards of £100 to £600 for “medium impact failures and £600 to £1000 for “high impact” failures.
  17. The landlord provides examples of each banding. A medium impact example is “a significantly delayed repair such as a blocked toilet which has resulted in distress and inconvenience, and where the resident has had to chase responses and seek corrections of mistakes that has required multiple visits over an extended time”. A high impact example is “an ongoing leak that has significantly worsened over time and has caused avoidable damage to the property which has impacted on the quality of the living environment.”
  18. Using these 2 examples as a guide, this Service has formed the view that this is a medium to high impact case. Therefore, £230 in recognition of the landlord’s repairs failures is inadequate compensation. The resident has made suggestions for calculating compensation based on various factors. He has, for example, suggested refunding him a proportion of his rent. However, this is normally done where there has been a loss of use of a room. In this case, while the sink was clearly blocked, the resident had the use of the other kitchen functions and the room itself was usable.
  19. For that reason, in assessing a suitable level of compensation, the Ombudsman has relied upon the above terms of the landlord’s policy, alongside this Service’s own remedies guidance. It is considered that a sum of £650 compensation is more proportionate to the failings identified in this report and the detriment they caused to the resident and his family.
  20. It is also noted that the term “ex gratia payment” contained in the landlord’s policy is not one this Service favours as it implies that the sum is a gift rather than a recognition of poor service. A recommendation is therefore made for the landlord to consider not using this wording in future.
  21. The resident has also asked the Ombudsman to require the landlord to compensate him for damage to his personal property including his washing machine and clothes. In the view of this Service, the landlord’s invitation to the resident to claim against its public liability insurance was appropriate. Its insurers are better placed than this Service, which has seen no authoritative evidence that the clothes or washing machine are damaged as the resident says, to assess that damage and the landlord’s liability for it.
  22. The resident said that his faith forbade him from taking out insurance, unless required to do so by law. He said, “Therefore, I find your suggestion to take out home contents insurance … [to be] an infringement on my human rights to practice my religion in peace”. Landlords must, according to equality legislation, avoid infringing the right of anyone to practice their religion and, in this case, there is insufficient evidence of the landlord doing so.
  23. When the resident signed his occupancy agreement, he signed documents saying he had read and understood the landlord’s statement on insurance. This statement recommended that residents should take out contents insurance but did not require them to do so. As a result, it was reasonable for the landlord to reassert the contents of that signed statement in response to this complaint, and to decline to pay the requested compensation on that basis. 

The associated formal complaint

  1. The resident complaiedt on 14 January 2023 and the landlord responded on 27 January 2023. This was in line with the landlord’s complaints policy which says that it should provide stage 1 responses within 10 working days.
  2. In his request to escalate his complaint to stage 2, the resident complained that the landlord’s stage 1 response had been signed by a manager who later told him that they had not written it. While the landlord has not provided any evidence to this Service to confirm or deny the resident’s claim, it should have addressed this point in its stage 2 response. Although this failure caused no actual hardship to the resident it may have contributed to a lack of trust in the complaints process. This was, therefore, a failure on the landlord’s part.
  3. The Ombudsman has published the Complaint Handling Code (the Code) which contains guidance for landlords on complaint handling. This provides at paragraph 1.27 that landlords must issue a complaint definition of the complaint when logging it at stage 1 and 2. Paragraph 1.43 says landlords must address all complaint points from that definition. The landlord therefore failed to comply with the Code, which is mandatory. Its failure to do so constitutes a service failure and an order is therefore made for the landlord to apologise to the resident for this omission.
  4. At stage 2, the landlord’s policy and the Code say that it should have responded within 20 days and, if this was not possible, explained why and then provided a response within a further 20 days. In this case, it failed to meet these requirements. It did not inform the resident of a delay and it provided the response after 26 days. In the stage 2 response, the landlord acknowledged this delay and offered the resident £20 in recognition of its failure.
  5. The landlord does not set out suggested compensation levels for complaint handling failures in its complaints policy. However, clearly, a short delay will require an apology and perhaps a token compensation payment. In this case, the response took 26 working days and the delay did not cause the resident any great inconvenience or distress. For that reason, the sum of £20 compensation was proportionate to the delay.

Determination

  1. In accordance with paragraph 52 of the Scheme, there was:
    1. Maladministration in the landlord’s handling of the resident’s reports of leaks in the property’s kitchen.
    2. Service failure in the landlord’s handling of the associated formal complaint.

Orders and recommendations

Order

  1. Within 5 weeks of the date of this decision, the landlord is ordered to:
    1. Write to the resident to apologise for its failure to address his concerns:
      1. About the authorship of the stage 1 response in its stage 2 response.
      2. Relating to the leaks between October 2022 and January 2023.
    2. Pay the resident £650 compensation, inclusive of any sum already offered, in recognition of its poor handling of his reports of leaks in the kitchen.
    3. On provision of evidence by the resident that he visited the launderette frequently, reimburse him the associated costs.

Recommendation

  1. The landlord is recommended to consider amending its complaints policy to remove references to ex gratia payments.