Stockport Homes Limited (202113135)

REPORT

COMPLAINT 202113135

Stockport Homes Limited

30 August 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 resident’s complaint is about the landlord’s response to her request that it install drainage to remedy build-ups of standing water in her garden after periods of rain.

Background

2. The resident holds a secure tenancy which started in December 2019. She has four children, two of whom she described as toddlers during the complaint period.
3. The landlord is an arm’s-length management organisation (ALMO), owned by the local authority.
4. The property is a house, with a private garden at the rear. The garden is included within the definition of “the property” in the tenancy agreement. The garden is mostly grass, with a small paved area next to the house, and another one halfway down the garden. The soil in the area is clay.
5. The tenancy agreement sets out the landlord’s responsibilities to keep the exterior of the property in repair. With regards to the garden, it specifies that the resident is responsible for “party fencing” and “garden gates”. It also says that the resident “must keep [the] garden reasonably neat and tidy and free from rubbish. Lawns must be cut and hedges trimmed.”
6. In March 2020 the resident reported to the landlord that, after periods of heavy rain, surface water on the grass did not drain away. She reported this again in January 2021, and sent photos to the landlord which appeared to show water pooling in large areas of the garden during rainfall.
7. The resident explained to the landlord that she was worried that this presented a health and safety risk to her youngest children in particular, because she was worried that they could get stuck in the mud.
8. The resident also explained to the landlord that it is important to her that her children have an outdoor space to play. She told the landlord on 4 March 2021 that it can take around four weeks for the water to drain away after “persistent rain”, and that a landscaper she had hired had measured one of the pools of water to be six inches deep. 
9. The landlord logged a stage 1 complaint after the resident contacted this Service in September 2021. It issued a stage 1 response to her on 13 October 2021. It:
   1. Said its drainage contractor had carried out a survey of the sewage system, and confirmed there was no defect with the underground drainage system;
   2. Said it had asked the resident to report to it if the flooding “started to happen more often or if the rainwater was taking longer to recede”. It said this was “so that the severity, frequency and persistence of the issue could be tracked”. It noted that the resident had not made a report to it since March 2021;
   3. Said the resident had asked it what her “position” would be if she employed a contractor to carry out work to her garden and it flooded from neighbouring gardens. The landlord advised that it would not carry out work to neighbouring gardens unless the water “was going to cause damage to [her] property”;
   4. Confirmed its position that it had taken “reasonable steps” to understand “the nature and scope” of the problem, had made “extensive efforts” to “clarify” that it was “acting within [its] remit as the landlord”, and that it would not take “remedial action to reduce the surface water in the garden”;
   5. It advised the resident that it did not uphold her complaint, and that she could escalate it to stage 2 of its complaint process if she could “present additional information which may change the outcome”.
10. The resident advised the landlord that she disagreed with its assessment regarding drainage on 15 October 2021. She advised it that she had employed her own contractor who had advised her that the garden needed drains fitted and to be levelled.
11. In November 2021, the landlord held a stage 2 complaint investigation hearing. Its records show it heard from the resident, and looked at the information it had gathered to date regarding the extent of the water-logging. Its records show that its panel decided that they needed more information before making a decision, and asked the resident to report future incidents of water pooling in her garden to its surveyor, so that the size of the flooding and the length of time it occurred over could be captured.
12. During 2022 the resident and landlord were in contact with this Service. The landlord’s records support what the resident has told us, which is that she did report incidents of flooding to it, and the landlord did not attend to inspect these in person. The landlord escalated the resident’s complaint to stage 2 during January 2023.
13. The landlord issued its stage 2 complaint response on 24 February 2023. It:
    1. Explained that it had considered whether there was damage to the structure of the house, the resident’s ability to access the property, and the level of impact the water had on the resident’s family’s ability to have “reasonable and adequate” use of the garden;
    2. Advised that, during its stage 2 complaint investigation, it had identified that it did not have enough evidence to make a decision regarding whether to undertake remedial action, and confirmed that it had agreed with the resident to monitor the frequency of floods, and how long the water took to “dissipate” over “a number of months”;
    3. Acknowledged that the resident had recently been unwell, and it was important to her that her children could play in the garden unsupervised while she recovered. It acknowledged that the water was “affecting [her] children’s ability to use the garden, but also noted that “this is not permanent” (being seasonal) and did not affect the whole garden;
    4. Confirmed that the water was a result of rainwater and not related to the drainage system or foul waste (sewage). It advised it had considered installing land drains into a soak-away drainage pit, but its view was that this would not provide an “adequate solution” given the heavy clay soil and “sloping land level”. It explained that the land drains would not run into a main sewer system. Its view was that remedial works were unlikely to provide a resolution to the issue, and “there is no evidence that the flooding is significant enough to warrant action in line with [its] repairing obligations… as a landlord”;
    5. Apologised that there was not more it could do, and signposted the resident to this Service if she remained dissatisfied.
14. The landlord has explained to us that it has identified 55 of its properties that are at highest risk of flooding, and it is in the process of installing flood defences at these, to be completed by 2028.The landlord decided that it would not be reasonable to install a land drain at the resident’s property (and at what it described as “significant cost”), due to its need to “carefully manage and effectively utilise very limited public finance”.

Assessment and findings

15. The property definition under the resident’s tenancy agreement includes the garden, and the rent she pays includes use of this amenity.
16. The tenancy agreement sets out that the resident is responsible for keeping the garden tidy, as well as replacements of fencing and gates. The landlord described the resident’s responsibility as covering “day to day maintenance”, and its internal records demonstrate that it accepted early on that adding drainage to the garden would fall outside the resident’s responsibility. 
17. The data we have been provided with is not sufficient to assess the extent or frequency of the water-logging/ flooding in the garden. However, both parties are in agreement that this does occur and has some impact on the resident’s ability to use the garden.
18. Our focus in this investigation is whether the landlord took adequate steps to investigate and understand the resident’s concerns, and whether it made a fair and evidence-based decision in response to the resident’s requests for the installation of drainage.
19. In its responses to the resident, the landlord highlighted that its responsibilities regarding disrepair, under section 11 of the Landlord and Tenant Act (1985), only applied to the house. It said that it had no legal responsibility to carry out works to remedy the flooding of the garden, if the house itself was not at risk of damage.
20. The landlord has also advised us that it had considered its responsibilities under the Housing Health and Safety Rating System (HHSRS), and that it had come to the conclusion that it had “no obligation” under the HHSRS to “undertake remedial actions to alleviate the waterlogging in this case”.  This conclusion is supported by the landlord’s actions to check that the contents of the water did not present a hazard to health. The landlord employed a contractor to check that the water did not contain sewage, and that the flooding was not due to defective drains. This was an appropriate action to take.
21. The landlord’s complaint response at stage 1 shows that it recognised that determining the “severity, frequency and persistence” of the problem would be crucial to inform its assessment of an appropriate resolution. Its initial response at stage 2 acknowledged that it did not have that information available at the time of its first stage 2 complaint investigation hearing in November 2021. The resident was asked to report incidents of water-logging to the landlord’s surveyor, details of how much of the garden was unusable, and how long it took for the water to drain away. Despite the resident doing this on several occasions between December 2021 and January 2023, this data was not gathered, and when the panel reconvened in February 2023 it only had the resident’s descriptions to go by. The resident told the landlord it could take around four weeks (sometimes longer) for the water to drain away. There was a missed opportunity here for the landlord to review the data it had, identify any trends or gaps, and then use this to ensure that it made a fair decision, supported by the evidence available to it.
22. Furthermore the landlord did not address the resident’s specific concern that the flooding has been significantly worsened by nearby building works. It could have explored this further to see if this was the case, and if so, if there was anything that could be done to reduce the impact of the building works.
23. The landlord did not demonstrate that it had fully understood the specific risk the water presented to the resident’s family, or the impact of losing the use of the garden as a play area caused. The resident has young children, and tried several times to explain that she was worried about the risk of standing water (which the landlord should be aware includes the risk of drowning), exacerbated by the muddy condition of the garden. The landlord told her that she should keep the children indoors, and that it thought it reasonable for her to take the same precautions as if she was with the children near public areas of open water. The landlord acknowledged that the resident had advised it that she had been ill recently, and that this had affected her ability to supervise her children in the garden, however it did not demonstrate appropriate empathy for her circumstances.
24. At one point the landlord suggested that it could fence-off a section of the garden, so that the resident’s children would be kept out of the water-logged area. The reasonableness of this suggestion depends on how long that area of the garden is out of use for. This is why data around the frequency and extent of the water-pooling, and the length of time it takes to drain away, was important to consider. The resident has recently advised us that, after the landlord realised that an area of the garden near to her house floods, as well as the furthest end, it decided that installing a fence would not “make a difference”, and would be a “waste of resources”.
25. The landlord pointed to the periods of time during which the resident did not report flooding as evidence that the problem is not frequent. It said that it was acceptable for the problem to be left to persist, because it was “seasonal” rather than a permanent loss of use of the garden. However, as set out above, the landlord had not collected the data needed to assess the impact of the issue and it is therefore unclear how it reached this conclusion.
26. The landlord’s contractor, and the resident’s own contractor, both identified that installing drainage could improve the situation. The landlord discussed that this might cost several thousand pounds, depending on the type of drainage. The landlord ultimately concluded that this was too expensive for it to implement. We note that the resident had offered to contribute towards the cost of the works, if the landlord would too.
27. The landlord’s comments to us and the resident about this decision, specifically around the use of “public funds”, suggest that it applied decision-making criteria that it uses in relation to its capacity as a local authority, to decisions that it should be making in its capacity as a landlord. Put simply, housing management accounts are ring-fenced, being paid for by rent, and are not the same as accounts funded by council tax. The Ombudsman understands that all budgets need to be carefully managed, whatever the funding source, and that decisions need to be made about how spending is prioritised where there is limited funding available, but it is our opinion that it was misleading to refer to the use of public funds here. In addition there is no evidence that the landlord responded to the resident’s specific suggestion that she could contribute to the work.
28. The landlord said it had identified several properties as being in higher need of flood-defence. It is positive that it has taken steps to identify risks in its wider housing stock, however it still had a responsibility to make a fully-reasoned and evidence-based decision regarding its responsibility to the resident on an individual basis. She pays rent for use of the entire property, and it is understandable that she expected to have a garden that she could fully use.
29. In its stage 2 response letter, the landlord told the resident that due to the heavy clay soil, high water table in the local authority area, and sloping land level around her garden, the installation of a land-drain and use of a soakaway drainage pit would not “provide an adequate solution”. It told her that installing a land-drain which rain into a sewer system would also not be an adequate solution.
30. As part of its considerations regarding whether to install drainage, the landlord looked up the flood-risk for the property on the Government’s flood risk service. It identified that the resident’s property was at high risk of flooding, and reasoned that it was not worth taking action to reduce the water-logging on this basis. The resident has told us that the landlord advised her that her property is on a flood-plain, which she disputes. When we checked the flood risk in July 2024, the resident’s property was marked as low risk of flood. The landlord’s records indicate that it had looked at the wider area, rather than the resident’s street, and had made an error in its reading of the risk to the individual property.
31. In summary, we do not expect that the landlord should be able to prevent the effect of any rain on the garden, as that would not be realistic or proportionate. The resident also understands this. However, the water-logging appears to be beyond that which is standard after rainfall, and the resident’s family’s circumstances mean that there are risks that the landlord should have taken into account. The landlord concluded that the installation of a land-drain was not a “priority”, when set against higher risk properties in its stock. It did not properly recognise that the resident was experiencing the loss of an amenity that she was paying rent for. Crucially, while the landlord recognised that it would need to take steps to understand the extent of the flooding, it did not actually gather this data over the years the complaint period covered. Taken altogether, the cumulative failings in the landlord’s response to the resident’s requests for assistance to resolve the issues with her garden mean that it did not demonstrate that it had fully considered and investigated the situation and then reached a fair decision based on all the evidence and information available to it. The Ombudsman has therefore found maladministration in this case.
32. The landlord should now take steps to document the frequency of the pooling of the water, the depth of the water, what proportion of the garden is affected, the length of time it takes for the water to drain away each time, and any damp concerns within the property. It should then reconsider its decision and confirm to the resident what action it will take, based on a full and thorough assessment of the extent and frequency of the issue and impact on the resident’s ability to use the garden.

Determination

33. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s response to the resident’s request that it install drainage to remedy build-ups of standing water in her garden after periods of rain.

Orders and recommendations

Orders

34. Within four weeks of the date of this report, the landlord must apologise to the resident for the distress and inconvenience caused by its failure to reasonably investigate the specific extent of the flooding in the resident’s garden,, has had. It must provide us with a copy once this has been completed.
35. Within four weeks of the date of this report, the landlord must directly pay the resident £450 compensation for the distress and inconvenience caused by its failure to reasonably investigate the specific extent of the flooding in the resident’s garden, so that it could make a suitably-informed decision about appropriate interventions.
36. Within four weeks of the date of this report, the landlord must contact the resident and establish how often the property has flooded since the start of 2024, and how long the water has taken to drain away each time. It must establish a route for the resident to report each further occurrence across the next four months, and it must ensure that it documents the depth of the water, how much of the garden is affected, and the length of time it takes for the water to drain away. We suggest that these arrangements could include asking the resident to send it photos, or inspections by its surveyor, and we encourage the landlord to identify options that will be practical for it while causing minimum disruption to the resident. The landlord must confirm to us what arrangements it agrees with the resident.
37. Once the monitoring period is over, the landlord must review the data it has collected and, by the end of December 2024, share the results and its decision, with the details of any next steps, with the resident. It must confirm to us in writing, within four weeks of the date of this report, that it will do this.

Recommendations

38. We recommend that the landlord consider whether it could take steps to remedy the water-logging now, including any temporary or interim steps it can take to mitigate or prevent the issue, rather than waiting, given the information that it already has available to it about the recurring nature of the problem.
39. We recommend that the landlord contacts the resident’s next-door neighbour, to investigate whether there could be co-ordination of investigations and any works in both gardens, to minimise and mitigate the potential of water running off from either garden into the other, and to increase the efficacy of existing drainage.