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Stonewater Limited (202304953)

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REPORT

COMPLAINT 202304953

Stonewater Limited

27 June 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:
    1. Response to the resident’s reports of ongoing issues with a blocked toilet and drainage.
    2. Handling of the associated complaint. 

Background

  1. The resident and her partner are assured tenants of the landlord, a housing association. The property is a 2-bedroom house. The tenancy commenced in February 2022. The resident has said she and her partner are disabled and live at the property with their daughter. The resident said all 3 of the occupants in the house have bowel conditions. The landlord has recorded physical health vulnerabilities for the resident’s partner.
  2. The local council certified that the development of the property complies with building regulations. A handover inspection was carried out by the landlord’s contractor on 22 February 2022. The resident reported to the landlord on 21 March 2022 that her toilet was slowly draining. She notified it of her partner’s medical needs and how he is reliant on the downstairs’ toilet working. This was raised as an emergency repair and works were completed on 23 March 2023.
  3. On 22 January 2023 the resident called the landlord around 5pm and reported her toilet on the ground floor was blocked. The landlord logged the repair and told the resident it would be attended to within 24-hours. In the meantime, it also communicated with the building developers whether this was a defect and maintained communication throughout subsequent months.
  4. The resident complained to the landlord on 24 January 2023, that her blocked toilet was still not fixed. The resident’s partner was reliant on the ground floor toilet due to mobility vulnerabilities and was having to use a bucket instead. The resident had obtained quotes from plumbers but wanted the landlord to take action. The landlord’s contractor attended on 25 January 2023 and at that stage, the resident said the issue was fixed. The landlord emailed contractors the following day to carry out a closed-circuit television (CCTV) inspection of the drains, this took place by end of January 2023. On 13 February 2023 the resident emailed the landlord saying the blocked toilet was recurring, but she managed to unblock it with hot running water. She also said the contractors had told her there were issues with the piping.
  5. The landlord sent its stage 1 complaint response to the resident on 8 March 2023 and apologised for its service delivery. The landlord said from the CCTV inspection the waste pipes underground were narrow and at the wrong angle, causing the drainage to keep blocking. One remedy was to re-do the drain; the other is to a run a tap in the property any time the flush was not working. The landlord also apologised for any confusion caused relating to the resident speaking with it or the building developer. It explained these situations could arise when a property is handed over from a developer while in the defect period. However, this had lapsed, and the landlord would continue to deal with the property. It offered a total of £250 in compensation, made up of:
    1. £150 for the inconvenience caused.
    2. £100 for the delays in the landlord’s complaint handling.
  6. On the same day of receiving the landlord’s stage 1 complaint response, the resident escalated her complaint. She was unhappy and felt the landlord had not acknowledged all its failings and poor communication. She told the landlord she felt ignored and lied to, and felt she was being accused of causing the issues. All 3 occupants of the property had bowel conditions and her partner previously had surgery for his digestive condition.
  7. The landlord issued its stage 2 complaint response on 10 April 2023. The landlord confirmed the property was out of the defect’s liability period and since the CCTV inspection, evidence showed the drains complied with regulatory standards. During its investigation, contractors found items blocking the drains. As such, it had written to all residents on 28 March 2023 notifying them about what can and cannot be flushed, maintenance costs, and disruptions. It further apologised for previous misinformation provided about running the taps when a blockage occurred, and issues with the pipework. She confirmed to the landlord that the toilet was working, but as a proactive measure it offered to install a more powerful toilet flush.
  8. Additionally, in the landlord’s final response of 10 April 2023 it apologised to the resident for how long issues were ongoing. It acknowledged different contractors attended the property and the distress caused. It offered her a potential management transfer (subject to medical evidence) as based on her experience the property may not have been suitable. Alternatively, it would consider any adaptations, or support an application to the local council after an occupational therapist visit. A total of £550 was offered in compensation, comprised of:
    1. £250 for the distress and inconvenience caused
    2. £150 for the landlord’s poor communication
    3. £100 for the delay in the handling of the complaint
    4. £50 for the costs of additional water usage by the resident.
  9. The resident accepted the compensation offered by the landlord on the same day as the final response. She declined the management move but was open to adaptations. The resident chased the landlord again on 10 May 2023 as she had not been contacted by it. On the same day, she referred her complaint to this Service. She remained unhappy with the outcome and felt the landlord’s approach to the decision that there were no issues with the pipework was not impartial. She was worried that the toilet would become blocked again.
  10. Following the completion of the landlord’s internal complaint procedure, the new flush was installed on 13 July 2023. No new reports of toilet or drainage issued had been made by the resident. In June 2024, the resident told this Service that the toilet has become blocked again.

Assessment and findings

Scope of investigation

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction and is governed by the Scheme.
  2. Paragraph 42a of the Scheme states that the Ombudsman will not investigate complaints which are made prior to having exhausted a member’s complaints procedure unless it is because of a complaint handling failure.
  3. Residents are expected to raise complaints with their landlords in a timely manner so that the landlord has a reasonable opportunity to consider the issues. This also means evidence is available to reach an informed conclusion on the events that occurred.
  4. Prior to June 2024, the evidence shows the resident had told this Service and the landlord that there were no further issues since the flush was installed on 13 July 2023. In the interest of fairness, the scope of this investigation is limited until the completion of works on 13 July 2023. This is because the landlord needs to be given a fair opportunity to investigate and respond to any recent reports of dissatisfaction with its actions. Any new issues or repairs required to the toilet that have occurred recently could be subject to a formal complaint and can potentially be addressed directly with the landlord and progressed as a new formal complaint if required.
  5. Paragraph 42j of the Scheme states that we may not be able to investigate complaints that fall properly within the jurisdiction of another Ombudsman, regulator, or complaint-handling body. This Service can comment on the actions or inactions of the landlord, but the actions and responses of the building developer may fall under the New Homes Ombudsman Service. Therefore, we cannot assess the actions of the building developer.
  6. Additionally, it is noted the resident said her physical and mental health was affected due to the ongoing issues with a blocked toilet and drainage. The Ombudsman does not doubt the resident’s concerns about her health, but this Service is unable to draw conclusions on the causation of, or liability for, effects on health and wellbeing. Therefore, we cannot confirm the effect the landlord’s actions or inaction had on the resident’s health and the resident may wish to seek independent advice if she wishes to pursue this aspect of her complaint. However, we will take into consideration any distress or inconvenience that the landlord’s handling of the issues may have had on the resident.

Landlord’s obligations and procedures

  1. Section 11 of the Landlord and Tenant Act 1985 places statutory obligations on the landlord. It is to keep in repair and proper working order, the installations in the property that supply water and dwelling for sanitation. Under the Housing Health and Safety Rating System (HHSRS), introduced by The Housing Act 2004, it is to assess hazards and risks within its rented properties, which includes personal hygiene, sanitation, and drainage. Therefore, the landlord is required to consider whether drainage issues affecting sanitation amenities in its properties amount to a hazard and require remedying.
  2. This is echoed in the tenancy agreement, where the landlord is to keep in good repair and proper working order any installations provided by it for the supply of water and sanitation, including basins, sinks, baths, toilets, flushing systems, and waste pipes. The landlord is also to keep in good repair communal areas.
  3. The landlord operates a responsive repairs policy and has 3 tiers for responses. Emergency repairs are to be attended to within 24-hours. All non-emergency repairs are to be completed within 28 calendar days. Major repairs are to be completed within 42 days from the original repair date.
  4. The landlord’s compensation policy notes that it will make awards for quantifiable losses and is also permitted to make discretionary payments.
  5. The Equality Act 2010 provides a legislative framework to protect the rights of individuals and to advance equality of opportunity for all. Under the Act the landlord had a legal duty to make reasonable adjustments where there is a provision, criterion or practice which puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled.
  6. The landlord’s complaints policy in operation at the time, set out that at stage 1 it would acknowledge complaints in 5 working days and aims to respond in 10 working days. At stage 2, it would respond to escalation requests in 2 working days and it aims to provide a response in 10 working days. Where it would not be possible to provide a response in time at both stages, it would agree an extension with the resident.

Ongoing issues with a blocked toilet and drainage

  1. In this case, it was not disputed that there had been delays in repairing the toilet.
  2. Where there are admitted failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman assesses whether the landlord’s offer of redress was in line with the Ombudsman’s dispute resolution principles. This says landlords should be fair, put things right and learn from outcomes.
  3. At the start of the resident’s tenancy, there were no plumbing or drainage defects identified. The resident first reported an issue with her toilet in March 2022. She told the landlord that her partner is reliant on the downstairs’ toilet due to his vulnerabilities. The landlord contacted the building developers on the same day of the report and said it was an emergency, which was reasonable. This Service acknowledges that under the defect period, the building developers carried out emergency repairs to the toilet.
  4. The resident reported a blocked toilet to the landlord on 22 January 2023. From the information provided, initial delays resulted as the landlord was unaware whether the repairs would fall under the defects liability period with the developer. The landlord communicated with the building developers on the same day it received the resident’s reports of issues, which was reasonable. On 24 January 2023 the building developers advised the landlord that it could be due to user damage, but they had not classed it as a defect.
  5. The landlord also contacted the resident on 24 January 2023 to check if the repairs were complete and the resident confirmed the issue was not fixed. The resident said that developers had told her the landlord needs to send a drain specialist. She felt the landlord was not clear in its communications as it had told her the issue would fall under the developers. The Ombudsman would expect the landlord to act as an appropriate intermediary co–ordinating any defect issues between the developer and resident and clearly communicated.
  6. The initial repair to the resident’s toilet was made on 25 January 2023, this was 2 calendar days outside its emergency timeframes under its responsive repairs policy, which was not appropriate and caused the resident distress and inconvenience.
  7. On 26 January 2023 the landlord raised a work order for contractors to perform a CCTV inspection of the drains. Although the exact date is unclear, this was completed by the end of January 2023 and the findings of this inspection was shared with both parties by 13 February 2023. As at the time the resident said her toilet was working, the landlord acted appropriately in organising a CCTV inspection and was within the parameters set by it for non-emergency repairs.
  8. On 13 February 2023, the resident relayed this information to the landlord as she was experiencing blockages to her toilet again. The contractor who carried out the CCTV inspection of the drain scrutinised the design of the pipes and layout. The landlord relies on professional opinion, so it was reasonable it contacted the developers again with evidence, in which this could possibly be treated as a latent defect. Based on the information it had at the time, it was reasonable for it to discuss remedies with the resident based on the CCTV inspection.
  9. It was not until 8 March 2023 the landlord confirmed the repairs to the toilet were its responsibility as the defect period lapsed but did not specify when it lapsed. Ultimately, under the provisions of the tenancy agreement, the landlord is responsible.
  10. The resident also disputed that the landlord alleged blockages occurred due to what was flushed down the toilets. There was further contact between the landlord and the developers from 8 March 2023 until the landlord’s final response of 10 April 2023. The landlord consulted professional opinion and was told there were no issues with the design of the drains or pipework. Upon inspection, there were wipes and other unsuitable debris found in the manhole, and it was recommended the landlord send all its residents a letter regarding flushing items down residents’ toilets. It was reasonable for the landlord to follow professional opinion and inform its residents what is potentially unsuitable to flush.
  11. On 10 April 2024, the landlord confirmed to the resident that it had previously provided misinformation from the CCTV inspection. During its investigations into the drainage, it found that it was designed and built to standard, and the evidence showed the cause of the blockages were unsuitable items being flushed. This communication was reasonable as the landlord relied on professional opinion to ascertain what the root cause of the drainage issue was and it had apologised for misinforming her.
  12. Under this Service’s remedies guidance, consideration is given for distress and inconvenience caused to a resident by a particular service failure, considering the severity of the situation and the length of time involved as well as other relevant factors, such as vulnerabilities. 
  13. Within the landlord’s final response, it showed a willingness to put things right. It offered a management move as the property may not have been suitable. It said it would support her in her applications subject to medical evidence and make adaptations if possible. Among these adaptations, it committed to installing a more powerful flush to the downstairs toilet. It apologised the issue was prolonged and the distress and inconvenience caused. It also identified the increased water bills experienced as a result of the issues, using more water. Excluding complaint handling, the landlord offered a total of £450 for the blocked toilet and drainage issues.
  14. The landlord would be expected under the Equality Act 2010, to consider whether the resident and her household’s circumstances placed her at a disadvantage. There is evidence the landlord knew of the severity of the resident and her partner’s vulnerabilities in March 2022, around 10 months before she experienced a blocked toilet in January 2023. This Service would have expected to see the landlord’s clear decision making regarding the risk to the resident and her household. It should have assessed the risk of continuous living without a functional downstairs toilet for any period of time. The ongoing risk assessment ought to have taken into account the known vulnerabilities and considered interim mitigations such as:
    1. signposted or arranged an occupational therapist assessment
    2. considered a temporary decant or permanent move
    3. any other support the landlord could have provided
  15. Outside of attempting repairs, the landlord had not made offers of support to the resident prior to 10 April 2023. This meant she went without reasonable remedies and support for 55 working days since her report of issues on 22 January 2023. This Service understands there were obstacles identifying what was causing the resident to experience blockages in the downstairs’ toilet. While the landlord had communicated effectively about management moves and adaptations, lack of early support and interventions meant it had failed to identify and manage the risk and appropriate interventions at the earliest opportunity. It also did not evidence to this Service any tools or frameworks used to assess risk.
  16. Further, the resident chased the landlord on 10 May 2023 about commitments it made in its final response. It was not until 13 July 2023 that the more powerful flush was installed. The landlord had to check if the flush contravened any procedures or regulations, but 66 working days had elapsed since it committed to doing so. This delay was inappropriate and exceeded the timescales of its non-emergency repairs. It is also unclear from the evidence whether the landlord engaged with the resident about any other adaptations, and whether the resident supplied any medical evidence. However, the lack of communication from the landlord since it said it would contact the resident about adaptations stemming from 10 April 2023 was unreasonable.
  17. It is clear the landlord attempted to put things right. However, given the resident’s and the household’s known vulnerabilities, it is the Ombudsman’s opinion that the landlord’s offer of redress was not proportionate to the detriment the resident experienced. The landlord had not appropriately risk assessed the resident’s circumstances and was unreasonable for not following up in its commitments made in its final response. This would have caused the resident further distress and inconvenience, and time and trouble.
  18. Therefore, the £450 offered was insufficient and not in accordance with the remedies guidance. As such, this Service finds maladministration in the landlord’s response to the resident’s reports of ongoing issues with a blocked toilet and drainage. Orders have been made that take into consideration the prolonged effect on the resident, the overall distress and inconvenience and the time and trouble expended by her.

Handling of the associated complaint.

  1. The resident submitted her complaint to the landlord on 24 January 2023. The landlord acknowledged the complaint at stage 1 of the landlord’s internal complaint procedure after 3 working days, which was appropriate. It told her it would provide a response by 9 February 2023.
  2. The resident had not heard from the landlord and complained via social media on 16 February 2023. Although it did write to her on 17 February 2023 that it would instead provide a response by 3 March 2023, it did not provide a response until 8 March 2023. Ultimately, the resident was not kept informed with the timescales of a response to her complaint. The landlord missed opportunities to agree an extension and manage her expectations. The stage 1 complaint response was sent 29 working days after initially acknowledging the resident’s complaint. This was inappropriate and outside the timescales stated in its policy.
  3. The resident escalated her complaint to stage 2 of the landlord’s internal complaints procedure on 8 March 2023. The landlord acknowledged the complaint escalation on 14 March 2023 and said it would provide a response by 28 March 2023. It did not provide its response until 10 April 2023. There was an inappropriate 9 working days delay from when it committed to provide a response. This delay was outside its own complaints policy in place at the time.
  4. In the landlord’s final response, it acknowledged its delays in complaint handling. It offered a total of £100 for its complaint handling delays both at stage 1 and stage 2 of its internal complaint procedure. It apologised for its communication throughout the complaint journey. This was reasonable action and showed that the landlord was willing to put things right with its complaint handling failures. The amount offered was in line with the Ombudsman’s remedies guidance and takes into account the resident’s experience.
  5. The landlord also told this Service that at the time of this complaint, it experienced challenges with staffing issues. In June 2023, it increased the number of complaint staff. It had also reviewed its complaints policy. It was also conducting quality assurance checks and continuing to provide regular training. As a result, it had seen significant improvements in its complaint handling process. Which shows the landlord is willing to learn from complaints.
  6. Although there were service failings in the resident’s complaint journey, the landlord had apologised, acknowledged delays, and demonstrated that it had learned from outcomes. Additionally, the total compensation offered by the landlord of £100 for its complaint handling is in accordance with the Ombudsman’s remedies guidance and is considered proportionate given the circumstances of the case. Hence this Service finds reasonable redress in the landlord’s handling of the associated complaint.

Determination

  1. In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s response to the resident’s reports of ongoing issues with a blocked toilet and drainage.
  2. In accordance with paragraph 53b of the Scheme, the landlord has made an offer of redress for its handling of the associated complaint, which in the Ombudsman’s opinion resolves the complaint satisfactorily.

Orders and recommendations

Orders

  1. Within 4 weeks of the date of this determination, the landlord is to:
    1. Apologise to the resident for the failings detailed in this report.
    2. Contact the resident to discuss the options for an occupational therapist assessment.
    3. Pay directly to the resident’s bank account, compensation totalling £650, comprised of the following:
      1. An additional £200 for the distress and inconvenience and time and trouble expended by the resident caused by the landlord’s failings in its response to the resident’s reports of ongoing issues with a blocked toilet and drainage.
      2. If any of the £450 (not including the £100 for complaint handling) previously offered at stage 2 of the landlord’s internal complaints procedure had been paid, it can be deducted from this total.
  2. The landlord is to provide evidence of compliance with the above orders to this Service.

Recommendation

  1. The landlord is to review and familiarise itself with the Ombudsman’s spotlight report on ‘leasehold, shared ownership and new builds: complexity and complaint handling’, published in September 2020.