This is a simple case study which demonstrates the ability of a civil servant [with a safe salary and an even safer pension] to act unreasonably causing loss and damage to others with no thought of the consequences.
It is of course extremely boring to read ... However, it clearly demonstrates that East Renfrewshire's employee exacerbated the problem with the tenant whose previous actions had already indicated her probable mental health . . . .
Below is the text of the document formulating the loss to the Landlord arising from the actions of East Renfrewshire's employee.
For: Gerry Mahon, Chief Officer Legal and Procurement for East Renfrewshire Council
Title: A Failure to Adequately and Effectively Investigate a Smell at Flat X.
This document describes the history, and events leading to the said failure, which has caused the Landlord considerable unnecessary expense both in time and money. Had the investigation been adequate and effective it would have concluded that the tenant had failed to properly ventilate the flat whilst in occupation.
Landlord's Representative: Eur Ing Richard Townsend-Rose MA CEng MICE [RGTR]
Property Manager: Firstport Scotland Ltd
Letting Agent: Firm Z
Tenants: Ms A and Mr B
Environmental Health: Westlands, Robert an employee of East Renfrewshire Council [EH]
The flat is located on an estate of some 100 flats constructed over a period from 1985 to 1989.The flats are well built and described as being "luxury".The Tenants entered into a lease for Flat X with effect from 15th August 2017.Complaints and requests started almost immediately.
It is to be noted that at the time of the tenant's checkout on 15th March 2018, when ventilation had been re-established there were no traces of any odours at all.
Part 1 - Tenants Complaint [Comments in RED]
On Friday, 3rd November 2017, the Tenant phoned the Letting Agent and complained, which was reported as follows to the Landlord:
The tenant has reported an awful smell of sewage coming from the drains in the bathroom and kitchen. Can you please advise if you are happy for us to arrange a contractors visit as the tenant did advise it is unbearable.
The same day this matter was reported by RGTR to the Property Manager as being urgent and requiring immediate attention. Noted that maintenance of the foul drains are the responsibility of the Property Manager.
The Property Manager failed to take any action.
On Monday 6th, the Letting Agent instructed a contractor to investigate the drains. Messrs Drain Doctor attended on Tuesday 7th and used CCTV from the man hole [to the front of building] where the foul drain for Flats 19, 20, and 21 joins the main run to the Cess Pit [which is owned and operated by Scottish Water, and contains equipment to pump the sewerage via a rising main to Netherlee].
Messrs Drain Doctor reported that there was waste beyond the point where the vertical drain joins the horizontal run beneath the building which is a "Rodding Eye" to enable clearance. This inert blockage was cleared. It in no way interfered with the normal operation of the drain. The rodding eye is to the rear of the building.
This waste was cleared. Noted that this length often fills with waste: since 1988, this has never caused any problems let alone resulted in any smells as it is capped.
Also on Tuesday 7th, a Gas Safe Registered Engineer attended the flat to carry out the routine annual checks and issued a safety certificate. The checks include checking the boiler located in the Kitchen, and the Radiators in the Bathroom and Shower Room; no smells were detected during the inspection and testing.
On Wednesday 8th, RGTR and another visited the flat to check that the rodding eye to the drain had been cleared satisfactorily. It had. There was no evidence of any smell whatsoever.
The lady tenant was in the kitchen with the window open. RGTR introduced himself and stated that the rodding eye to the drain was often blocked, but had never caused any nuisance.
From 9th November to 23rd November RGTR was in hospital for immediate Open Heart Surgery and recovery following a severe Heart Attack. Hence the delay in production of this document.
On Friday 24th November, the Tenant again emailed the Letting Agent. The content of the email was somewhat nonsensical and again falsely reported the situation. The Tenant reported that:
- there was escaped raw sewage lying under the building.
- The drains are buried in the sub-base.
- There is therefore no physical possibility of raw sewerage lying under the building.
- During the recent refubishment the space under the floors was examined for other reasons.
- he [RGTR] confirmed that the drains were blocked solid (waste from other properties) and this was a historical problem. He said it would be dealt with asap.
- See above re visit by RGTR on 8th November to verify that the rodding eye to the drain had been satisfactorily cleared.
- The Tenant is evidently wholly unable to report facts.
On Wednesday 29th, the Letting Agent conducted their usual inspection. The inspector was unable to detect any smells.
Following this visit and later that day, the Letting Agent received another email. This demonstrates that the Tenant had no idea of what had been done at her behest: She advised that:
- Today’s appointment with Drain Doctor has now been cancelled - at the request of the landlord
- This is a false statement - the Landlord was not aware of, and no appointment had been made. She seems to be confused as to who was coming out to see her.
- This matter requires to be resolved and having taken legal advice, I have had no option but to raise my concerns with East Renfrewshire Council. I can confirm that an Environmental Health Officer is coming out this afternoon.
- No information as to the content of the "legal advice" has become available.
- To summarise.......the owner of the property introduced himself to me one evening as he was investigating the drains at the back of the property, directly under the kitchen. He readily admitted to me that this was an inherent issue and the drains had caused problems of a terrible smell in the property in the past. He also tapped the drains and confirmed that they were ‘solid’ and no wonder we were having problems. He said the matter would be dealt with ASAP....this was over 3 weeks ago.
- No admission was made that a blocked rodding eye would cause smells. The lady tenant is unaware that the drain and rodding eye are the same pipe passing right under the bulding. RGTR just checked that the roding eye had been cleared.
- This unannounced visit was following the first visit from Drain Doctor - they dealt with the drains at the front of the building. At that time, we were not aware that the inherent issue was to the rear of the property.
- See above. The drain passes right under the building.
Part 2 - East Renfrewshire Inspection
On the following day [Thursday 30th] there was an exchange of emails, starting when the Letting Agent forwarded EH's email to them to RGTR time stamped at 0939.
EH's email which purports to be a report on an investigation into a smell is both inadequate and ineffective. In particular it fails:
to determine the source or cause of the odour if any,
it reports erroneous hearsay from the tenant,
it demonstrates EH's technical lack of understanding of the drain layout and construction which is not only in accordance with the building regulations, but would have been inspected and accepted before the issue of a habitation certificate.
makes no recommendations as to sorting out the supposed problem.
This renders the report useless.
EH then attempted to allocate responsibility in three numbered paragraphs. These further demonstrate his lack of ability to comprehend what is a simple and normal arrangement of drains.
the tenant is in my opinion, being subjected to an odour nuisance which requires to be resolved...
RGTR replied to this email time stamped at 11:57.
He notes: There is therefore conflicting information from the tenant and yourself, and several professionals.
It is strange that no other resident of the block has smelled anything. The flat front doors are NOT gas proof, and smell would quickly pass into the entrance lobby;
and further advises:
The cost of inspection and re-instatement if nothing is found are chargeable to the person(s) making the reports - that has been the law for many years.
Attached to this email was a pdf with two diagrams:
- A cross section showing the foul drains running under the building,
- A plan showing the connection of the bathroom and shower room to the foul drain.
Time stamped at 12:26, EH attempts to disengage from RGTR. The Owner advised EH of RGTR's authority by return email.
Time stamped 15:51, in his next email EH makes three statements, amongst others:
- I made an arranged visit to assess the complaint in line with legislation pertaining to nuisance, namely the Environmental Protection (Scotland) Act 1990, as amended, and potentially, relevant housing legislation.
- I attended with a colleague yesterday and we immediately noticed a strong unpleasant odour on entering the flat – predominantly in the hallway.
- I did not believe this to be a ventilation issue given the information presented to me by the complainant, the odour appeared to be drain-related.
As stated in my previous email, my colleague and I witnessed the odour and in our opinion this requires further investigation.
This is in effect an instruction to uncover and investigate, subject always to the notice he was given at 11:57 earlier in the day. The above email was replied to by RGTR at 17:26. This email contained the following statements:
- Your email laid the blame on the drains
- So we are in a "your opinion" versus "other's opinions" situation with no hard evidence of anything, apart from "there is no smell" from a number of competent persons. I have no knowledge of your qualifications or professional memberships. Please supply.
- Meanwhile the drains will be investigated shortly by a Property Bureau contractor on the basis of your first email, and if nothing is found, the costs will be reclaimed from those making reports, which includes your two email reports, in accordance with established law.
EH responded citing regulations, and categorically stating:
My colleague and I share the opinion the odour related to defective drainage ...
It was annotated with some meaningless nonsense as follows:
- PROTECT Protective action required
- PROTECT+ Additional protective action required DPA sensitive
On Friday 15th December RGTR time stamped 14:56 replied to EH as follows:
First, I note that you have ignored my title.
Second, the plumber who has inspected, at your behest, the drains internally has reported no smells and no defects.
Thirdly, as I have already noted several other qualified persons including me, and tradesmen failed to find any smells or defects, except that the rodding eye was blocked, which is not unusual, and from which no smells can emanate.
Fourthly, your report failed initially to specify the location of the smell. you were unable to determine the source of the smell let alone the mechanism by which it reached the hall in the flat. it is surprising that the smell did not percolate into the common area, and that no other person living in the estate suffered the same problem.
Fifthly, The tone and content of your three emails was poor; the last one is best described as belligerent.
This leads me to the following conclusions:
- your investigation was NOT adequate,
- the investigation if it can be called that was certainly NOT effective,
- it was NOT conducted without fear and favour, and you reported, falsely, hearsay, which one might suggest erroneously indicated to you the source of the smell.
The result is that you will be reported to the chief executive of East Renfrewshire as being not competent to carry out the duties expected of you. It will be strongly suggested that you are removed from post.
The right is reserved to publish all communications between us on the web as a warning to others.
Part 3 - East Renfrewshire attempt to treat as a complaint
A week later, John Davidson, also an employee of East Renfrewhire Council, in his email of 22nd December time stamped at 14:07 notified RGTR that his email above would be treated as a complaint.
At 14:24, RGTR replied as follows:
I have not yet made a complaint. I have advised Westlands that one will be forthcoming in the next several weeks.
There is a lot more to add, like test equipment or lack of, written records or lack of, tests or lack of.
My methodology is to advise the chief executive and then to publish all the correspondence on a web site.
Nor do I consider that anyone in East Renferwshire Council is fit to undertake any investigation into failures of this nature.
Nor do I consider that the SPSO is a fit organisation to properly undertake investigations.
I would ask you what Education, Training, and Experience, let alone membership of an appropriate Professional Body you have which you think enables you to carry out an investigation. Please advise.
I can advise you that Westlands' visit and report has caused a direct and consequential commercial loss to the both the Landlord and the Letting Agent. It is intended to charge East Ren for this loss as it was their employee who directly caused it.
Part 4 - Landlord's Actions
Following discussions with the Letting Agent, the Landlord was advised that there was no alternative but to serve notice on the tenant to vacate. This was because:
- It had not been possible to determine the source of the odours if any,
- EH had in effect declared that the flat was not habitable.
The tenant vacted on 15th March, it being noted by RGTR that all the windows were in the fully closed position. Every window was immediately placed "on the crack" as every opening window has a two position closure.
No smells or odours have since been detected by any of the tradesmen carrying out remedial works.
Part 5 - Scottish Water
It is wholly coincidental that one of the pumps in the Cess pit failed. Within a short period, the second one also failed.
It is understood that this was due to wipes and nappies being flushed down toilets. This is NOT the first time that this has occurred.
It has absoluely no relevance to the reported odours, and occurred well after the reports and investigations carried out.
Scottish Water deemed it necessary to dewater the pit prior to clearing the pumps.
Costs attributable to the actions of EH
The direct costs of tradesmen totals £254, and is made up of the following:
- Drain Doctor £212.40p
- Plumber £42.00p
The management costs include the following:
- Letting Agent time handling telephone calls and email some dozen times,
- RGTR time handling emails some two dozen times.
This equates to 15 hours of management time.
Based on a typical clerk's annual salary of £24,000 plus 100% for on costs, for which a clerk will work some 240 days at 7 productive hours per day, an hourly rate of £28.50 is applicable.
The cost is therefore some £450.
Consequential Costs of £1,900 are recoverable due the failure of duty of care exercised [in delict], and include:
- Loss of Rent £750
- Costs of necessary refurbishment £850
- Costs of finding and vetting a new tenant £300
The total claim therefore amounts to some £2,604.
East Renfrewshire Personnel Matters
It is apparent from the above narrative that Westlands, Robert:
- is not competent to hold the post of Senior Environmental Health Officer, Environment Department: not only are his investigative abilities limited, but also his knowledge of the Building Regulations etc is inadequate,
- has displayed unsatisfactory behaviour, having behaved in a belligerent and bullying manner attempting to assert his unfounded opinions.
It is strongly recommended that he is re-deployed to a position where his lack of abilities would not hinder his execution of his responsibilities.