Birmingham City Council (202005797)

A picture containing logo

Description automatically generated

REPORT

COMPLAINT 202005797

Birmingham City Council

18 October 2021

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 the landlord’s:
1. Response to the resident’s concerns regarding cigarette smoke penetrating his property from the property below.
2. Response to the resident’s concerns regarding the upkeep of the garden by the tenants from the property below.
The Ombudsman has also considered the landlord’s complaint handling as part of the assessment.

Background and summary of events

Background

The resident is the tenant of the property (the property) which the complaint concerns. The landlord owns the property.
The property is a flat, situated in a converted building (the building). The building comprises two properties – the property and flat A. The property is on the first floor and property A is on the ground floor.

Summary of events

In September 2020 the resident contacted this Service setting out that the landlord had failed to address complaints which he had made in respect of property A, namely:
1. Second-hand cigarette smoke from the tenants (the tenants) occupying property A which penetrated the property.
2. Poor upkeep of the garden allocated to property A by the tenants.
The resident stated that the outstanding issues had impacted on his enjoyment of the property.
The Ombudsman can see that between November 2019 and March 2020, prior to the resident’s referral to this Service, the landlord provided several formal complaint responses to the resident regarding second-hand cigarette smoke and upkeep of the garden by the tenants under different case references. The Ombudsman notes that these were not final responses. In summary the landlord’s position was:
1. In respect of cigarette smoke:
  1. Cigarette smoking inside a residential property was not illegal, did not constitute ASB and was therefore not a breach of tenancy conditions. The landlord confirmed that it was therefore unable to prohibit the tenants from smoking inside of property A or issue them with a breach of tenancy. The landlord noted that its legal team regularly reviewed tenancy conditions to ensure that they were reasonable and appropriate.
  2. It would not adapt the property or property A, as requested by the resident, to prevent cigarette smoke smells/ fumes from entering the property. The landlord explained alterations had been discussed with its Contracts Work Officer who confirmed that structural alterations were not possible.
  3. Cigarette smoking was not permitted in the internal common areas.
2. In respect of upkeep of the garden by the tenants:
  1. In 2018 the property and property A were each allocated areas of the building’s garden for sole use and responsibility for upkeep.
  2. After the gardens were allocated the resident continued to undertake maintenance in the garden area allocated to property A. The landlord advised that if the resident no longer wished to undertake maintenance, the tenants had confirmed that they would be happy to take back responsibility.
After referring his concerns to this Service in September 2020 the resident continued to raise complaints with the landlord regarding cigarette smoke by the tenants and the upkeep of their allocated garden area. Within his correspondence the resident stated:
1. Cigarette smoke from property A penetrated the property causing him discomfort and was impacting on his health.
2. The landlord should prohibit cigarette smoking from within property A, as it was anti-social. The resident stated that the tenancy agreement for property A should be amended to reflect no smoking.
3. The landlord should adapt the building to ensure smoke smells/ fumes could not penetrate the property. The resident stated that properties had no “modern smoke proof separation”.
4. The tenants were not maintaining the garden area allocated to property A.
5. The tenants had accused him of “trespassing”.
The landlord provided further formal complaint responses to address the issues which the resident raised, including on 14 October 2020, 19 October 2020, 29 October 2020, 14 December 2020 and 15 December 2020. In addition the landlord wrote to the resident on 4 January 2021 providing an overview of its position in relation to his complaints. In response to the resident’s concerns the landlord said:
1. In respect of cigarette smoke:
  1. Smoking was not permitted in the shared areas of the building. The landlord noted that the conversion of the building was such that the property and property A were separate living dwellings.
  2. Individual tenants had the right to smoke cigarettes in the privacy of their home as it was not an illegal act or contravention of the conditions of tenancy. The landlord confirmed that it would therefore not alter the terms and conditions of property A’s tenancy agreement to prohibit smoking, as requested by the resident. The landlord reiterated, from its previous responses, that its legal team regularly reviewed the conditions of its tenancy agreements to ensure that it did not impose any unfair conditions on its tenants.
  3. Smoking inside a residential property did not constitute ASB.
2. In respect of upkeep of the garden by the tenants:
  1. Each property within the building had been allocated an area of the garden for sole use and upkeep in 2018. The landlord noted that following allocation of the gardens between the properties the resident had enjoyed maintaining both garden areas “by mutual agreement” with the tenants. The landlord confirmed that this arrangement came to an end in February 2020, as the resident confirmed that he no longer wished to continue the arrangement. The landlord set out that on 20 February 2020 it wrote to the resident confirming that from 1 March 2020 the tenants would have “sole responsibility for future maintenance and upkeep of their allocated garden”. The landlord confirmed that while the resident may wish to now resume responsibility for the whole garden again, this was not possible.
  2. The tenants had hired a gardener to completely strip down and cut back the garden allocated to property A. The landlord noted that this work took place on 3 and 4 October 2020. The landlord confirmed that the garden rubbish and debris was bagged up neatly and placed at the back of the garden ready for collection later in October 2020.
  3. It had reviewed the condition of the garden allocated to property A and was satisfied that it was being maintained appropriately by the tenants.
  4. It considered that the resident’s recent allegations regarding the condition of property A’s garden were “malicious and unfounded complaints against [the tenants]”. The landlord stated this was because the resident knowingly took photographs of the garden area while work was being undertaken to it in order to suggest a breach in tenancy by the tenants.
  5. While it noted that the resident believed that he should have access to the garden area allocated to property A, this was not the case. The landlord confirmed that the tenants had every right to object to the resident entering their allocated garden. The landlord noted that the boundaries of the allocated garden areas had previously been shared with the resident.
  6. The resident’s suggestion that the tenants did not want to maintain their allocated garden area was “false”.
3. Within its responses the landlord noted the following addition points:
  1. It considered some of the resident’s comments, for it to find alternative accommodation for the tenants, as unacceptable and an indirect form of harassment against them.
  2. It had issued a warning letter to the resident following ASB allegations by the tenants about him for actions including threatening them with eviction, insisting that he maintain their allocated garden area, trespassing in their garden and searching through their bins.
  3. The tenants had declined the resident’s request to take part in mediation.
The landlord confirmed within its responses, including on 4 January 2021, that the resident may refer his concerns to the Local Government and Social Care Ombudsman (LGSCO) for consideration if he was not satisfied with its responses, as it had now provided its final position on each issue.

Assessment and findings

Scope of investigation

As set out above, the complaint which the resident brought to this Service in September 2020 was about cigarette smoking and upkeep of the garden in relation to property A and the tenants. Following the resident’s referral to this Service about these issues the landlord subsequently provided him with its final position on the matters by 4 January 2021.
The Ombudsman can see that following the landlord’s complaint correspondence dated 4 January 2021 the resident has continued to raise concerns regarding cigarette smoke and the upkeep of the garden by the tenants, in addition to new issues which include:
1. The tenants not using property A as their main residency.
2. The tenants tampering with his post.
3. Breaches of security by the tenants in relation to the communal front door and windows in property A.
4. Misuse of the communal areas within the building by the tenants specifically putting up religious posters.
5. Noise nuisance by the tenants.
6. Access to an outdoor washing line.
7. Attempts to have him evicted from the property.
As these additional concerns did not form part of the complaint which the resident referred to this Service in September 2020 they will not be considered or commented on within the assessment below. Further, on accepting the resident’s complaint about cigarette smoke and upkeep of the garden formally into the Ombudsman’s remit in early 2021 the Ombudsman had not been provided with any evidence that these issues had also exhausted the landlord’s complaint procedure, and where therefore also eligible for consideration by the Ombudsman under this case. This is in accordance with paragraph 39(a) of the Housing Ombudsman Scheme which sets out that the Ombudsman will not consider complaints which in the Ombudsman opinion are made prior to having exhausted a landlord’s complaint procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale.

The landlord’s response to the resident’s concerns regarding cigarette smoke penetrating his property from the property below

The property’s tenancy agreement sets out the following in relation to smoking:
1. The tenant and their visitors must not smoke in the internal common areas of any building.
2. The tenants must not smoke in the property when the landlord’s officers visit.
The Ombudsman notes that the tenancy agreement does not contain a clause prohibiting the tenant, or their visitors, from otherwise smoking inside the property. While the Ombudsman has not had sight of the tenancy agreement for property A, the Ombudsman considers that it is reasonable to assume that the same tenancy conditions apply in relation to smoking.
In the Ombudsman’s opinion, taking into account the terms of the property’s tenancy agreement and considering that the Ombudsman is not aware of any legislation which renders it illegal to smoke within a residential property, the landlord’s position that it could not prohibit the tenants from smoking within property A was reasonable.
As part of his complaint the resident stated that it was unsatisfactory that the landlord was not willing to adapt the property or property A to prevent the transmission of cigarette smoke/ fumes. In response the landlord’s position was that no adaptations would be made to either property as:
1. Smoking was not anti-social.
2. Alterations were not possible as confirmed by its Contracts Work Officer.
3. The properties were two separate dwellings.
While the landlord’s position is noted, in the Ombudsman’s opinion, its response to the resident’s request was not adequate. In responding to the resident’s concerns the Ombudsman would have expected the landlord to have explored whether his concerns regarding transmission of cigarette smoke/ fumes was due to a repair issue with the structure of the building which needed addressing. For example by undertaking an inspection. There is no evidence that it did so. The landlord therefore did not take appropriate steps to satisfy itself, and the resident, that the transmission of cigarette smoke/ fumes was not due to an issue which required intervention and therefore that the resident’s concerns were not with merit.
The Ombudsman notes that the landlord states that in concluding that alternations to the building were not possible it relied on the opinion of its Contracts Work Officer. However, the landlord has not been able to provide any evidence of its discussion with the Contracts Work Officer in this regard. This is unsatisfactory as a landlord should have systems in place to maintain accurate records documenting its decision and the advice it relied on.

The landlord’s response to the resident’s concerns regarding the upkeep of the garden by the tenants from the property below

While the landlord has not provided the Ombudsman with documentation that the resident was formally notified that the building’s garden was to be allocated between the property and property A the Ombudsman notes that the resident does not dispute that this arrangement was made. The Ombudsman therefore accepts, for the purpose of this determination, that the garden allocation was acknowledged and accepted by the resident in 2018.
On 20 February 2020 the landlord wrote to the resident setting out that it would “write to [the tenants] to inform them they [were] now responsible for the future upkeep and maintenance of their allocated front garden from 1 March 2020”. The letter also added that the resident should remove any pots, plants and other items that he wished to retain from property A’s allocated garden by 29 February 2020. The Ombudsman is therefore satisfied that the resident was informed in February 2020, that from 1 March 2020 the tenants would be responsible for the upkeep on property A’s allocated garden area and therefore the mutual agreement that he was to maintain the area would end.
In responding to the resident’s complaint about the upkeep of property’s A allocated garden, the landlord confirmed that it was satisfied that the tenants were maintaining the area appropriately. In the Ombudsman’s opinion the landlord’s conclusion was reasonable as it reached its decision following a visit to property A to assess whether the garden was being maintained to an appropriate standard or not. It was also reasonable for the landlord to conclude that while the tenants carried out landscaping to the garden in October 2020, which resulted in a period of disruption, it did not amount to a breach in tenancy as the works being undertaken were to improve the garden and were a work in progress.
As part of the landlord’s complaint response it informed the resident that entering the garden area allocated to property A was not permissible and may amount to a breach in his tenancy conditions. This was appropriate, as this area of the garden no longer formed part of the resident’s tenancy and he was therefore not entitled to enter the space or interfere with it.

The landlord’s complaint handling

In confirming that the resident had exhausted its complaint procedure the landlord set out that if he was unhappy with its final position on each issue, he may refer the complaint to the LGSCO. As the resident’s concerns related to his occupation of the property, and was therefore a housing management activity, the landlord should have signposted the resident to this Service (the Housing Ombudsman) instead. It is unsatisfactory that the landlord did not ensure that the resident was given appropriate information on his next steps following the end of the complaint procedure. However, in the Ombudsman’s opinion it does not amount to a service failure, as the Ombudsman can see that the resident was aware of his right to refer his complaint to this Service rather than the LGSCO for consideration, and therefore the landlord’s error did not adversely impact upon him. Further the Ombudsman has identified, within internal correspondence from the landlord, that it identified its error itself and confirmed that learning would be provided to its officers to ensure that correct information was given going forwards.
From review of the chronology of the case the evidence shows that the landlord provided several formal complaint responses, addressing the matters subject of the complaint, between November 2019 and March 2020 and again between October 2020 and December 2020. In the Ombudsman’s opinion the landlord should have taken a more proactive approach to managing the resident’s complaint and sought to progress the complaint through its internal complaint procedure more promptly avoiding the need for many responses. This would have been in the best interests of both parties; to bring the matter to a close at an earlier time. However, in the Ombudsman’s opinion the landlord’s failure to do so does not amount to a Service failure, as the Ombudsman can see that the landlord was trying to manage the resident’s multiple contacts in order to resolve the complaint.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was:
1. Service failure by the landlord in respect of its response to the resident’s concerns regarding cigarette smoke penetrating his property from the property below.
2. No maladministration by the landlord in respect of its response to the resident’s concerns regarding the upkeep of the garden by the tenants from the property below.
3. No maladministration by the landlord in respect of its complaint handling.

Reasons

The landlord’s response to the resident’s concerns regarding cigarette smoke penetrating his property from the property below

While it was reasonable for the landlord to confirm that it was unable to prohibit the tenants from smoking inside property A, as its advice was in line with the terms of the property’s tenancy agreement, it is unsatisfactory that the landlord did not explore whether there was a repair issue with the structure of the building which allowed cigarette smoke to penetrate between the properties and therefore needed addressing.
It is unsatisfactory that the landlord has not kept a record of the Contracts Work Officer’s advice that the building could not be adapted in relation to possible smoke penetration between the property and property A.

The landlord’s response to the resident’s concerns regarding the upkeep of the garden by the tenants from the property below

The landlord’s conclusion that the tenants were maintaining the garden allocated to property A was reasonable, as it reached its decision following a visit to property A to assess whether the garden was being maintained to an appropriate standard or not.
It was reasonable for the landlord to inform the resident that entering the garden area allocated to property A was not permissible and may amount to a breach in his tenancy conditions as this area of the garden no longer formed part of the resident’s tenancy.

The landlord’s complaint handling

While it is unsatisfactory that the landlord informed the resident that he may refer his complaint to the LGSCO within its final responses, rather than this Service, there is no evidence that its error adversely impacted on the resident. Further the landlord identified the error itself and committed to carrying out appropriate learning to address the issue.
While the evidence shows that the landlord could have taken steps to progress the resident’s complaint through its complaint procedure more promptly, avoiding the need for multiple responses, it does not amount to a service failure. This is because the landlord was trying to manage the resident’s multiple contacts in order to resolve the complaint.

Orders and recommendations

Orders

The landlord should pay the resident £200 compensation for not exploring whether there was a repair issue with the structure of the building which allowed smoke to penetrate between the properties and therefore needed addressing.
The landlord should inspect the building to determine whether there is a repair issue which allows cigarette smoke to penetrate between the properties. The landlord should write to the resident, and the tenants, confirming the outcome of the inspection. Where a repair issue is identified the landlord should provide an action plan detailing the repair, including timescales.
The landlord should comply with the orders within four weeks of the date of this determination.

Recommendations

The landlord should review its record keeping procedure to ensure that it maintains appropriate records, documenting the advice it has relied on in making a decision regarding a tenancy issue.
The landlord should share the Ombudsman’s complaint handling code with its officers who are responsible for responding to complaints to ensure that complaints are responded to in accordance with best practice.