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London & Quadrant Housing Trust (L&Q) (202200127)

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REPORT

COMPLAINT 202200127

London & Quadrant Housing Trust

28 June 2023

 

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 handling of the resident’s:
    1. reports of her neighbours’ smoke entering her home;
    2. reports of various repairs and historical anti-social behaviour;
    3. the associated complaint.

Jurisdiction

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
  2. After carefully considering all the evidence, in accordance with paragraph 42 of the Housing Ombudsman Scheme, the Ombudsman will not consider complaints which are brought to the Ombudsman prior to exhausting the landlord’s internal complaints procedure. The complaints about various repairs and historical antisocial behaviour (ASB) are outside of the Ombudsman’s jurisdiction. This is because these complaints have not completed the landlord’s internal complaints procedure. Should this complaint complete the procedure in the future, the resident can ask the Ombudsman to investigate the issue separately.

Background

  1. The resident is an assured tenant, living a flat situated in a block of flats owned by the landlord.
  2. On 11 February 2022, the resident contacted the landlord to report that other residents in the block of flats were smoking in the communal areas. She explained that the smoke was filtering into her home and causing her breathing difficulties. Over the following days and weeks, the resident contacted the landlord on multiple occasions about the issue, including allegations that the resident in the flat above hers was smoking out of his window, causing smoke to blow into her flat. On 21 February 2022, the resident identified at least three potential smokers in the building to the landlord and requested the landlord take action against them.
  3. On 21 February 2022, the landlord confirmed to the resident that an antisocial behaviour (ASB) case had been opened. The following day, the landlord sent the resident diary sheets for her to complete. The resident stated her belief that there was no need for the diary sheets and that the landlord should take action against the smokers.
  4. Following confusion over whether the smoke is entering the resident’s flat from the communal areas or the flat above, the landlord contacted the resident on 3 March 2022. It explained that residents are allowed to smoke in their own homes, but not in the communal areas. The resident confirmed the smoking is happening in the communal areas and that she wanted the landlord to investigate. The landlord said it would send out communication to all residents reminding them of their obligations.
  5. On 22 March 2022, the resident complained to the landlord during a telephone call about the smoke in her flat. The call handler had been unable to locate information relevant to the resident’s call on the landlord’s systems in a timely manner. The resident asked the landlord to call her back, which the landlord said it was unable to do due to current volumes of incoming calls. The resident and landlord then disagreed over whether the landlord had a legal obligation to call the resident back. The resident said she wanted to make a complaint and this was registered as such by the landlord.
  6. On 29 March 2022, the landlord issued a stage one response to the resident’s complaint. It apologised for the problems the resident experienced on the telephone call and confirmed it had given the call handler relevant coaching to reduce the chance of it happening again. The landlord explained the call centre handles incoming calls only and gave reasons for this. It assured the resident that it was recruiting more staff to make it easier for residents to contact the landlord and get assistance.
  7. The resident responded to the landlord on 30 March 2022 She said the landlord had not said what actions it would take to resolve the problem with the smoke in her flat. The landlord issued a follow-up response on 31 March 2022. It apologised for the resident being unhappy with the complaint response. It indicated that it was not clear whether the smoke in the resident’s flat was originating from the communal areas of the block or the flat directly above the resident’s. The landlord explained it could not intervene where residents were smoking in their own home. However, if residents were smoking in the communal areas, the resident would need to report each incident with additional information such as date, time and the perpetrator’s identity if possible. The landlord explained it would need a report every time it occurred and it would then be able to support the resident in preventing it happening. It offered some advice on how the resident could resolve matters herself through speaking with her neighbours about the issue. The resident indicated she wished to escalate her complaint.
  8. The landlord confirmed it had escalated the resident’s complaint to stage two of its complaints procedure on 1 April 2022. The resident contacted the landlord and stated she did not know who was smoking in the communal areas. She said it made no difference if the smoke was coming from the tenant in the flat above, or the communal areas. She stated the landlord has a responsibility to stop residents deliberately blowing smoke into her flat. She also requested medical priority for a transfer to alternative accommodation, and for a floating support worker to help her manage these situations.
  9. The landlord issued its stage two complaint response on 20 July 2022 following contact from this Service. It apologised that the resident felt the landlord had not taken action to resolve the issue with smoke in her home. It explained it had opened ASB cases and communicated with residents about their responsibilities. It stated that its investigations are evidence-based, so it needed the resident to co-operate with filling out diary sheets and providing more detailed reports to enable it to act any further. It apologised for the delay with issuing the stage two complaint response and offered £25 compensation for this. It confirmed the complaint was now closed but the resident’s ASB case remained open and provided a named contact for the resident to communicate with.
  10. The resident remained unhappy with the landlord’s response and asked the Ombudsman to investigate. She stated the landlord had taken her complaint out of context when talking about smoking in the communal areas when she had stated that the smoking was filtering in from her upstairs neighbour’s flat.

Assessment and findings

The landlord’s handling of the resident’s reports of her neighbours’ smoke entering her home.

  1. The landlord has a legal responsibility as a social landlord to respond to residents’ reports from of antisocial behaviour and take appropriate action where necessary. What might be considered ‘appropriate action’ will depend on if it can be considered to fall within the definition of ‘antisocial behaviour’, as well as the severity of the behaviour.
  2. The resident has reported issues with smoke infiltrating into her home and affecting her health. The landlord has found it difficult to confirm if the smoke in the resident’s flat was caused by smokers in the communal areas of the block, or from the resident in the flat above smoking near their window. The action it would be appropriate to take differs in each of these scenarios. It has offered advice and assistance to the resident in the event that either of these things are happening.
  3. The landlord has a smoking policy. It states that “neither the law nor [landlord] policy aims to restrict people from smoking…in any part of their own private dwellings”. This means that the landlord would not take any action against residents for smoking within their own homes.
  4. The landlord informed the resident on multiple occasions that smoking within private residences is allowed, and that it would not be able to take action against her neighbours for doing this. As smoking in their own homes would not be considered antisocial behaviour, it was correct that the landlord did not take action against the neighbours for this. It is the responsibility of the resident to independently manage any issues she may have as a result of lifestyle differences with her neighbours. The landlord offered advice on approaching neighbours to discuss how their smoking was affecting her. The resident confirmed she had written to her neighbours in order to open up dialogue on how they could make their building a nicer place to live.
  5. Residents smoking in communal areas would have been a breach of policy that the landlord would be expected to take action over. The landlord’s smoking policy states that residents may not smoke in “the communal areas of tenanted dwellings”. This activity would be considered ASB.
  6. The landlord followed up the resident’s reports of smoking in the communal areas of the block by issuing diary sheets on multiple occasions to the resident. It also gave clear advice on the type of information it would need in order to action her reports. The resident did not wish to complete the diary sheets, which she was within her rights to decide. However, this Service would not expect the landlord to take action against individual residents of the block without evidence. This principle also protects the resident from the landlord taking action against her in the event of unevidenced reports from neighbours. The landlord asked the resident to provide it with dates and times of each event, and the identity of the perpetrator if possible. The landlord did not receive this information at any point; therefore, it could not be reasonably expected to take action against the neighbours. The landlord does not have a responsibility to stop behaviour it has no clear information about, or evidence of.
  7. The landlord has stated that it sent out communication to all residents of the block to remind them of their obligations regarding not smoking in communal areas. While this Service has not seen evidence of this communication, this is a reasonable action to have taken.
  8. Therefore, this Service does not find maladministration in the landlord’s handling of the resident’s reports of smoke entering her home. The landlord was entitled to require evidence or basic information about smoking in the communal areas before targeting direct action against individual neighbours.

The landlord’s handling of the resident’s associated complaint

  1. The landlord’s stage one complaint response does not address the resident’s reports of the smoke entering her flat as a result of her neighbours smoking. However, it responded specifically to a report from a call handler who stated that the resident wished to complain following a phone call in which the resident felt she had received poor service. The landlord took the correct action in identifying that the resident wanted to make a complaint and responding accordingly.
  2. The landlord was therefore within its rights to frame its complaint response around this report. However, the landlord could have contacted the resident to discuss her complaint in more detail before issuing the stage one response. This would have given it an opportunity to understand that the resident was more concerned about the issue she was calling about, rather than the particular call experience. The stage two complaint response did respond to the resident’s concerns of smoke infiltrating her flat.
  3. The landlord’s complaint policy states that complaints at stage one of its complaint process will be responded to in full within 10 working days. The landlord issued its stage one response in accordance with its policy.
  4. However, it is clear there was a significant delay with the stage two complaint response. The resident’s request for her complaint to be escalated to stage two was received by the landlord on 30 March 2022. The landlord’s complaint policy allows for 20 working days to issue a stage two response, meaning the response was due by 28 April 2022. The stage two response in this case was not issued until almost three months later than that. There is no evidence that the landlord sought agreement for an extension from the resident. This was a clear failure in handling the resident’s complaint in an appropriate timeframe in accordance with the landlord’s policy and the Ombudsman’s complaint handling code.
  5. The landlord acknowledged its failure to handle the resident’s complaint in a timely manner and offered £25 compensation for this. The landlord’s compensation policy states that the landlord will offer £10 compensation to residents for failures to respond to complaints within the timeframes set out in its complaint policy. An offer of £25 suggests that the landlord has taken its failure seriously and it has departed from its policy to recognise the impact of the failure on the resident.
  6. Although there was a delay to the complaint response which would have caused some level of inconvenience to the resident, the overall impact of this delay was not significant. The landlord continued to communicate with the resident about the issues she had raised about smoking. The resident’s complaint was not upheld, and this decision was not affected by the landlord’s delay in responding. Therefore, this Service is satisfied that the landlord’s offer of £25 compensation offers a reasonable remedy for its failing to respond to the resident’s complaint on time. This amount is in line with The Ombudsman’s remedies guidance (available on our website) which sets out our service’s approach to compensation. The remedies guidance suggests that awards in this region are appropriate where the impact of any service failure was of short duration and did not impact the overall outcome of the complaint.
  7. There is evidence of the resident asking for help in the form of a floating support worker. The resident emailed the landlord to request this on 1 April 2022 and 19 August 2022. The landlord enquired with the resident in order to establish what kind of support the resident would like but was not given any further information. The resident had stated she would like help managing situations such as with the smoke in her flat and her complaint against the landlord. It is not clear whether a referral was made for general floating support, but this Service has not seen evidence that one was made. The landlord should consider whether the resident has access to any support she may be entitled to and if appropriate, it should signpost her to organisations which may be able to provide support.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the handling of the resident’s reports of her neighbours’ smoke entering her home.
  2. In accordance with paragraph 53 of the Housing Ombudsman Scheme, the landlord has made an offer of redress which, in the Ombudsman’s opinion, satisfactorily resolves the complaint about the landlord’s handling of the resident’s associated complaint.

Recommendations

  1. It is recommended that the landlord establish any potentially unmet support needs the resident may have and take steps to ensure those needs are better met such as signposting to agencies which may be able to provide support.