Peabody Trust (202306706)

REPORT

COMPLAINT 202306706

Peabody Trust

29 April 2025

(amended 29 April 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

The complaint is about:
1. The landlord’s response to the reports of flooding in her garden.
2. The landlord’s complaint handling.

Background

The property is occupied by the resident under an assured tenancy together with her husband. The tenancy had begun in 1996. The landlord had merged with the previous landlord who, in its turn, had either merged with or taking over the property from yet another landlord. Her husband was diagnosed with COPD and cancer. The resident’s immediate neighbour (who will be referred to as “N” in this report) was a private owner who had built an extension in 2016 and a property alongside. The resident’s property was on a lower level to that of N.

Legal and policy framework

The tenancy agreement did not set out the responsibilities in relation to the garden. However, under the Housing Act 2004 and Section 9a of the Landlord and Tenant Act 1985, the landlord has an obligation that a property is fit for habitation and free from hazards under the Housing Health and Safety Rating System (HHSRS). Hazards include untreated foul waste and wastewater discharged onto gardens and paths. In addition, there is a term implied by law that the resident has a right of quiet enjoyment of the property namely that nothing interferes with their use of the property. We would expect landlord to carry out works it would be impracticable for the landlord to carry out. The landlord did not dispute its responsibilities. We will therefore consider how it responded to the resident’s reports of flooding in the property.
Under the landlord’s complaints policy, it would respond to a complaint within working 10 days at Stage 1 and within working 20 days at Stage 2.
Compensation payments and other remedies are considered when a customer has experienced a delay or has incurred additional costs because of a service failure on our part, or if we have failed to carry out a service within our published guidelines.

Scope of this investigation

The resident’s complaint referred to the issues having been ongoing since 2016. We do not normally investigate events going back over such a lengthy period. That is because we expect residents to make complaints within 12 months of an event complained about. Records may be missing and memories fade. It is also so that the landlord can respond in a timely manner to the event complained of. It is increasingly difficult for an independent body, such as the Ombudsman, to conduct an effective review of the earlier actions taken by the landlord to address the issue. The repair logs however went back to 2016. While we appreciate the difficulties of storing documents for lengthy periods, we would expect the landlord to have retained records going back longer than 2023. The landlord has informed us that it was unable to locate documents or Information prior to a merger with the previous landlord. While we have not investigated historical events, we will, however, look at the circumstances when considering the context of the complaint.
We have investigated the events which postdated the conclusion of the landlord’s complaint process. This is because the flooding had not been resolved at the time of the landlord’s final response of 7 November 2023. The landlord stated that it would continue to the monitor works. We would expect the landlord to keep the complaint under review until resolution.

Chronology

On 26 January 2023, the landlord raised an inspection of the flooding in the garden“ from N’s extension.
On 20 March 2023, the resident made a complaint as follows:
1. Her garden was being flooded following works carried out by the next-door owner and had “diverted“ rainwater from her garden into hers which was on a lower level.
2. The builders had removed her downpipe, filled the drain with fencing and erected new fencing taking off 14-18 inches off her garden. She reported other impacts on her garden.
3. She had contacted the previous landlord and was concerned her complaint would get lost “again” with the impending merger. . .
4. Her husband had a multi-diagnosis of cancer and COPD. She was concerned the garden presented a risk and he was unable to go out.
5. She had reported this in August 2019. A surveyor carried out an inspection in November 2022. There was a discussion about taking legal action.
6. She wanted the landlord to take action against N.
On 30 March 2023, she provided photos showing her garden. On 12 April 2023, the landlord wrote to the resident stating it had forwarded her complaint to its repairs team.
On 16 May 2023, the resident obtained a report to determine the potential source of the water. It found:
1. The numbers of the bacteria caused “some concern”.
2. The water had been subjected to some recent faecal contamination.
3. The water should not come into contact with people, clothes or food.
On 16 May 2023, the resident made a further complaint as follows:
1. She had had flooding in her garden since 2016.
2. There had been several inspections.
3. She had contacted several bodies including the local water utility provider. It had told her that N had altered the sewerage pipes.
4. She had had a water test carried out but would not yet disclose the source.
5. The EHO was to carry out a dye test.
6. Although the extension was built in 2016 it was not signed off till 2019.
7. Her husband’s medical consultant had advised him not to go into the garden due to an infection.
8. The water and slime had ruined the garden. It had damaged the cement and paving, as well as the side entrance door. It was creating mould.
On 10 July 2023, the landlord wrote with its Stage 1 response as follows
1. It referred to her complaint of 16 May 2023.
2. It limited its review to the previous 6 months.
3. It referred the issues about her husband’s health issues to its insurance team as a PI claim. LL
4. Its legal team had been seeking to resolve the “building permission matter” with the next-door property. It was considering all options which might include a temporary decant to a different property.
5. It had not found any failure in service by its Repairs team.
6. It offered £250 compensation consisting of £50 for its delay in responding to the complaint and £200 for the resident’s time, trouble and inconvenience.
In August 2023, the resident made enquiries with the environmental health team (EHO) at the local authority at the local authority. The EHO informed the resident that the drain did not belong to the water company.
On 11 October 2023, we wrote to the landlord asking to provide a Stage 2 response by 15 November 2023.
On 7 November 2023, the landlord wrote with its Stage 2 response as follows:
1. The property suffered regular flooding with sewage from the sewer which ran behind the block 33 to 29. N had carried out unauthorised works to this sewer which had created a pipe system which blocks regularly. There were public health issues. It understood that the pipework was a Public Sewer and was causing a nuisance to their property.
2. It had inspected the property “on numerous occasions” to explore ways to mitigate the problem. This would be necessary before taking legal action against N.
3. The loss adjuster considered that the flooding was probably due to the building of the N’s extension and the boundary may have been moved in addition to changes in the drainage configuration.
4. The landlord had arranged for contractors to assess the garden to determine the level of contamination and a boundary surveyor to determine if any fence panels have been moved.
5. If it determined that that the garden was in fact contaminated, the next step would be to consider a decant as soon as possible on either a temporary or permanent basis. The resident declined because they had been in the property for years.
6. It again referred her to its insurers regarding the damage to her property and the impact of the flooding on her husband.
7. It understood from their point of view why the resident did not wish to move. It had not been able to draw conclusions as to the cause of the flooding.
8. It gave an explanation why the Stage 1 complaint response was delayed. It apologised had not followed its complaint procedure. It had new management overseeing the complaint process at stage one and two. It would not close the complaint until the work was completed.
9. It stated it had increased the amount offered at stage It offered £700 consisting of:
  1. £250 compensation to reflect the poor handling of her complaint including £100 for its failure to administer the complaint, £100 for the lack of coordination prior to approaching the Housing Ombudsman, and lastly £50 for the delay in escalating her case to stage 2.
  2. £450.00 for her time, trouble and inconvenience:
10. Next steps: It had reviewed the reports from previous inspections carried out both internally and by 3rd parties. A water company shared sewer line had been moved. There had been “unregulated tight bends” installed causing it to regularly block. Rainwater from a number of roofs drain into the same sewer line which would exacerbate the flooding to their property. The 3rd party contractor would notify the water company of the position.
11. As the cause has been identified, it would put together a schedule for the proposed works. It would continue to monitor the action. The complaint housing officer was the point of contact until the identified works were completed.
12. When the works were completed, it would check with the resident to confirm the work was satisfactory and also review the report before closing the case.

Assessment and findings

The evidence showed that the resident had been reporting the issue for some time. While we do not doubt the resident’s account, we do not have evidence of reports prior to 2022 although we have a repairs log going back to 2016. We cannot draw an absolute finding however there was clear evidence that the resident was reporting the issues in August 2022 when she reported that N had moved the drainpipe and when it rained. The resident said water was “pouring over the top”. On 22 August 2022, the landlord raised a job to investigate guttering at the back of the property. She also reported that N had moved her fence into her garden. The first evidence of any action taken was November 2022 and January 2023.
We note that the November 2022 inspection reported by the resident had not been noted in the repairs records. Therefore, we do not find the records altogether reliable. We appreciate that this was while the property had been owned by another landlord. The current landlord has told us it was unable to access records generated prior to the merger. We would expect landlords to obtain records when merging with another landlord though as far as is reasonable in the circumstances.
The evidence showed that, following the merger, the landlord took a number of actions as follows:
1. According to a letter 16 October 2023, (the “October 2023 letter”), it did the following:
  1. In April 2023, the landlord cleared a blockage in a garden manhole.
  2. On 11 May 2023, it noted there had been a “slight diversion” in the drain line.
  3. On 19 June 2023, it advised there were no issue with the sewers and referred the resident to the local water company, the EHO and building control.
2. In July 2023, the landlord contacted N and corresponded with her surveyor regarding the fence and drainage including through its legal team.
3. According to an email of 3 July 2023, a contractor had suggested that a surveyor assess how much land has been encroached on. It might resolve issues if the fence could be moved back and the drain put in use to capture the rainwater, instead of a soakaway. It is not clear if such an inspection went ahead.
4. According to internal emails in July 2023, the landlord was considering legal action against N but this would be a slow process.
5. On 13 September 2023, the landlord raised an investigation of garden flooding.
6. The log at 25 September 2023 referred to obtaining a water report. In October 2023, the landlord referred to exploring carrying out works, obtaining a new drain and that the roof was implicated. The landlord started discussions with the N through her party wall surveyor.
7. In October 2023, the landlord’s contractors suggested the landlord write to the relevant water company regarding the works it had allegedly carried out to the sewer. This demonstrated that the landlord was proactively pursuing this line of enquiry. The landlord asked for a quote from its contractors to install a new drain. While N was found not to be at fault, it is not clear what the outcome of this request was.
8. The October 2023 letter stated it would not take any further steps as N’s property was privately owned, and N had refused access for further investigations. The landlord also stated it could not do anything further. While this was unreasonable, the evidence showed the landlord continued to take action.
9. In November 2023, following the resident’s report, the landlord’s contractor “rushed over” and only saw rainwater. He suggested a revisit when it was not raining. He also suggested the landlord write to the water company to reroute the drainage.
10. On 8 November 2023, the repair logs show that a job was raised to clear the drains. The contractor informed the landlord that he attended but it was not clear why he had been called. The contractor considered the issue was due to heavy rain. He would re–attend on a further report of flooding when it was not raining so it could rule out rainwater.
11. The landlord also:
  1. Offered a management transfer to a more suitable ground floor property as it recognised it had a “duty of care” towards the household. This was declined by the resident as too disruptive.
  2. It commissioned its own soil sample report to identify contamination.
  3. It was to “press” for the drainage to be redirected by the adjoining property owner. The evidence showed that the resident only sent the water report to the landlord in October 2023. While it was reasonable to offer a move, it was unreasonable it had not commissioned a water report sooner.
12. On 13 November 2023, it arranged to lay sandbags and polythene. and will be going back to lay in front of the low-level door.
13. On 14 November 2023, as the situation looked “more serious than a simple drainage matter”, the contractors suggested a meeting at director level. Although we have seen emails making arrangements, it is not clear from the evidence whether this meeting took place before that of April 2024.
14. In December 2023, the landlord and contractors were engaged in pursuing the avenue of rerouting the drains. The evidence showed that it was communicating with the water company and was considering legal action in order to facilitate this. On 21 December 2023, it set out a clear action plan. Part of the plan was a dye test by the EHO which was being arranged by the resident. The evidence also showed that there was no sese of concern by the water company. We are satisfied that the landlord, at this point, was doing what it reasonably could.
15. There followed an unexplained gap in the evidence and no evidence of what action was taken, if any.
16. On 22 April 2024, a meeting between the parties, the EHO, contractors, water company and N took place. The conclusions were as follows:
  1. The drainage accessed was found to drain into the communal rear drain (a public sewer) with one exception.
  2. The drainage was found to be in a serviceable condition and without obvious defects or signs of recent blockages.
  3. The water company advised that the rear sewer, whilst not perfect in alignment, was in reasonable condition.
  4. Contractors would take further water samples and arrange to have them tested.
  5. Water was noted issuing in a retaining wall. It was proposed to carry out investigation in N’s garden. Further investigations would require permission from the neighbour. They considered installing a soakaway.
17. In May and June 2024, the contractors made a number of efforts to seek agreement from the neighbour to carry out further investigations. In August 2024, N declined to cooperate.
18. On 1 October 2024, the contractors reported the outcome of works carried out the day before as follows:
  1. It set out its investigations it had carried out including assessing the suitability of the soil for a soakaway.
  2. Ground water was seeping from N’s garden into the resident’s. It considered that the flow may be from a spring or general ground water.
  3. It sent 2 samples of the water to a laboratory for analysis.
19. The landlord through its contractors arranged for a “desktop review” of the soil by specialist contractors. It concluded that a soakaway was likely to be ineffective.
The above demonstrated that the landlord tested a number of theories and took the resident’s reports seriously.
It was reasonable that the landlord took the risk of contamination seriously. It investigated the possibility that sewage water was seeping into the resident’s garden and offered a move, given the risk. It ran with the resident’s view that N had diverted the drain and considered legal action. It carried out investigation and liaised with the water company and the EHO. It also contacted N. and considered legal action. It was reasonable that the landlord explored its options as a court would except it to, although it would also except the landlord to act promptly. It was then reasonable that the landlord did not pursue legal action as it proved not to be necessary, given there was no evidence that N had diverted the drainage. N’s surveyor was to provide evidence to the landlord of the work carried out in July 2023. While addressed in Stage 2, it was not clear what conclusion was reached on the allegations that N had moved the fence. We will therefore make an order that the landlord clarifies the position.
The evidence showed that the risk of contamination was not as it was thought.:
1. It was established that there was no issue with the drainage in N’s garden.
2. In March 2024, the EHO advised that the dye test showed there was no evidence that the flooding was related to the drainage. It did note that the condition of lack of guttering may be a factor.
3. On 7 May 2024, the local authority confirmed that the works at N’s property had been formally approved.
4. On 23 July 2024, the EHO wrote to N that it had no further issue with the drainage and the purpose of the investigation in her garden were to identify the water source.
5. A laboratory analysis report dated 29 January 2025 of the soil samples suggested, according to the laboratory, there was no sewage or contamination.
Nevertheless, the delay to establishing that the flood water was in fact safe meant that the resident had lived with the anxiety that the garden was a risk to her and, in particular, her husband’s health, including given her concerns about using the garden.
The resident had lived with this situation for many years, and since at least 2022 to until 2025. The final outcome was on 14 February 2025, the contractors wrote to the landlord that the solution to the flooding and unusable garden “should be relatively simple”. It suggested suitable land drainage and gully to the resident’s garden and a connection into the flats which had drainage. It was frustrating that after years of the resident suffering flooding and worry, the solution was “relatively simple”.
While, we have noted that the landlord took proactive steps during that period. there was a substantial overall delay before the landlord diagnosed the issue and found a solution.
We appreciate however, that the thinking at the time was that the issue was caused N having diverted the water company’s drainage. The landlord was entitled to rely on its specialist contractors. It was also reasonable to investigate this thoroughly. The landlord’s action were also hampered by the lack of cooperation by N. Once it was established the drainage was not at fault, it was reasonable to try and seek agreement from N to carry out investigations in her garden, and then to await wetter weather before carrying out further investigations. This was the cause of some of the delay.
There were unexplained delays including to:
1. Taking steps November 2022 to October 2023.
2. The landlord arranging a water report.
3. The site meeting of April 2024.
4. Taking next steps between August 2024 and October 2024 and October 2024 and February 2025.
We consider that the landlord relied on the resident unduly. We think it was unreasonable that the landlord referred the resident to the water company and did not at the outset, communicate with these bodies itself, given the property was its responsibility and that it had the professional expertise. It was for the landlord, as the owner of the property and the professional body, to satisfy itself of the conditions of the property and quality of the water in the garden, to contact the water company and the EHO.
We consider that the evidence showed that the landlord took considerable steps and made significant efforts to resolve the issues. We note the resident did not provide her May 2023 water report at the outset. However, it could have sought a water report at a much earlier stage. Overall, while it explored a number of different theories, the landlord was slow to start and there were unexplained delays. In the circumstances, given the impact on the resident, we find maladministration. We will make an order for compensation that will, nevertheless, take account of the landlord’s actions and the delays caused by third parties such as N.
On 1 April 2025, the resident told us that she is still experiencing seepage under N’s fence and there was stagnant water in the open drain installed in her garden. In the circumstances and given its assurances to check with the resident that the works were satisfactory, we will make an order for the landlord to address this.

The landlord’s complaint handling

The resident initially made a complaint in March 2023. It was unreasonable that the landlord did not respond and simply forwarded her complaint to its repairs team. While we would not expect the landlord to review historical events, there was no evidence that it considered the history of the complaint. It was also unreasonable that the Stage 1 response limited its response to the actions of the repairs team rather than see the wider context. It offered compensation of £250 for the delay to its response from May 2023 to July 2023. This was in excess of the amount in its compensation policy for complaint handling. It then offered what appears to be a further £700 for its complaint handing. It was not clear whether this was in addition to or including the amount offered at Stage 1. From the context it would seem to be in addition. Again, this was well in excess of its compensation policy. Our concern is that that the level of compensation for complaint handling was influenced by the referral to our Service. We would expect all residents to be treated the same, regardless of whether they made a legal claim or referred their complaint to your Service.

Determination

In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was service failure no maladministration in relation to the
In accordance with Paragraph 53.b of the Housing Ombudsman Scheme, in the Ombudsman’s view, there was reasonable redress in relation to the

Orders

The Ombudsman makes the following orders:
1. Within 4 weeks, the landlord should pay the resident the sum of £500 in relation to her complaint about the flooding in her garden.
2. Within 4 weeks, the landlord should write to the resident and either offer her a re-inspection or explain, with evidence, why the garden is safe, given the resident’s concerns about the water quality and open drain.
3. Within 4 weeks, the landlord should clarify to the resident, if it has not done so already, the position on whether N had moved the resident’s fence and what the landlord’s intentions are if she has done so.
4. If, within 4 weeks, the resident provides any further report from the laboratory who carried out the water report in May 2023, and it is of concern, the landlord should, within 2 weeks of receipt, refer that report to the laboratory who provided the report of 29 January 2025 for comment and further investigation and provide a copy of that letter to the resident and the Ombudsman.
The landlord should confirm compliance with the above orders to the Housing Ombudsman Service within 4 weeks and 6 weeks of this report.