London & Quadrant Housing Trust (L&Q) (202204023)

REPORT

COMPLAINT 202204023

London & Quadrant Housing Trust

20 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

The complaint is about:
1. The landlord’s response to the resident’s ongoing reports of smells of fumes coming into the property from the garage below.
2. Complaint handling.

Background and summary of events

Background

The resident is a tenant of the landlord. The resident has an assured tenancy which commenced on 14 August 2006. The property is a two bedroom flat in a communal building. The flat is above a row of residential garages used by other people. There is a car park to the rear of the property. The landlord’s records showed that the resident has an illness but did not specify any conditions.
The resident previously reported fumes to the landlord in 2020 and 2021 and raised a complaint with the landlord about its responses to those reports. The complaint exhausted the landlord’s internal complaints process on 18 May 2021 and was the subject of an investigation by this Service which was determined on 3 September 2021. However, this investigation concerns the complaint that exhausted the landlord’s complaints process on 13 July 2022.
The Housing Health and Safety Rating System (HHSRS) is a risk assessment procedure to assess whether a home is decent and free from any hazards. A hazard is any risk of harm to the health or safety of an actual or potential occupier of accommodation that arises from a deficiency in the dwelling, building or land in the vicinity. The HHSRS is concerned with hazards that are attributable in whole or in part to the design, construction and or maintenance of the dwelling. Landlords should consider the circumstances carefully in the interests of the occupiers of the dwelling before concluding that a hazard cannot be dealt with effectively. Hazard categories include:
1. Carbon monoxide and fuel combustion products. Excess levels of carbon monoxide, nitrogen dioxide, sulphur dioxide and smoke which lead to nausea, headaches, disorientation, dizziness, unconsciousness and breathing difficulties.
2. Lead. Threats to health from lead ingestion from paint, water pipes, soil and fumes from leaded petrol. Lead poisoning causing nervous disorders, mental health and blood production issues.
3. Uncombusted fuel gas. Threat from fuel gas escaping into the atmosphere within a property.
The landlord’s repairs policy says:
1. The landlord is responsible for the structure and exterior of the unit and property, including walls, roofs, windows, external doors, drains, gutters, external pipes and boundaries.
2. During the tenancy it only undertakes routine repairs where an item that it is responsible for is defective to the point that there is a health and safety hazard that presents a serious risk of harm.
3. When diagnosing repairs that are reported by vulnerable residents it considers whether the defect is putting the resident at risk because of their physical or mental health. It treats repairs with an escalated priority in cases where a delay in completing a repair would cause an increased health and safety risk.
The landlord’s vulnerable resident’s policy says:
1. The definition of a vulnerable resident is someone with any condition or circumstance which places them at risk in their home.
2. “Some residents will openly tell us about a support need or vulnerability. When we provide a service resident should be asked if they have any particular needs, or vulnerabilities that we should take into account”.
The landlord’s compensation policy says that compensation may be offered “when the landlord fails to respond or process a complaint within its agreed timescales, or where it does not comply with this Service’s complaint handling code”. The landlord will award discretionary compensation “when the failure causes a resident distress and inconvenience or where the resident has spent unnecessary time and effort getting the landlord to put things right”.
The landlord operates a two stage complaints policy. A stage one complaint is acknowledged by the end of the next working day and a response provided in writing within ten working days. A stage two complaint is acknowledged within two working days and a response provided within 20 working days. If the landlord is unable to provide responses within those timescales it will explain the reason for the delay to the resident and provide its complaint response within a further ten working days.

Summary of events

Following the previous determination of this case on 3 September 2021, the resident made further reports to the landlord of fumes coming into her bedroom from the garage below. These were between September 2021 and February 2022. She asked for the garage ceiling to be cemented to prevent fumes from entering her home.
The landlord’s records of 17 March 2022 showed that the resident had made a complaint on 7 February 2022 but that it did not seem to have registered the complaint. The records said that the resident was asking to progress to stage two. The complaint said that the resident was reporting the garage beneath her bedroom being “poorly ventilated and overstuffed”. The resident also reported that there were gaps in the ceiling and her bedroom smelled of greasy engines, a musty smell and petrol which leaked from the garage occupant’s motorbikes. The records showed that there was a history of reports from the resident about the garage under her bedroom.
The landlord’s records showed that the resident’s complaint was acknowledged and that it would respond by 30 March 2022. The resident received a response from the landlord on 26 March 2022. This Service has not seen a copy of the response from 26 March 2022.
The resident contacted this Service to say that she was dissatisfied with the landlord’s response and that she was told she could not escalate her complaint to stage two as the landlord was still trying to resolve the issue.
On 24 May 2022 there were several communications between the landlord and resident:
1. The landlord wrote to the resident asking her to confirm the garage number underneath her bedroom. It said “we will need to get our maintenance team out to the garage as it should be sealed correctly if it is attached to a flat”. The resident responded the same day confirming the garage number.
2. The landlord contacted the occupant of the garage and explained it had received reports or fumes travelling up to the flat above. It had raised a job for its maintenance team to attend the garage to see if they could seal it to prevent this from happening. It said it would contact the occupant with an appointment to arrange access.
3. The resident asked the landlord when the appointment would be and what actions the maintenance team would take.
4. The landlord responded and said that the appointment was provisionally booked for 6 June 2022 but this would depend on whether the occupant was available to give access on the day. The maintenance team would liaise with the occupant. It was due to inspect the garage to see what works it could carry out to resolve the issue. It could not advise until the inspection had taken place.
5. The landlord wrote a stage one closure letter to the resident. It confirmed its decision regarding her complaint and let her know what would happen next. A maintenance job had been raised for an inspection to look at what works needed to be carried out to prevent this from continuing and then for the works to be completed. The occupant of the garage had been contacted to allow access for these works to be carried out. If she did not agree with its decision, she could let the landlord know who would escalate her complaint to the next stage.
On 25 May 2022 the resident responded to the landlord:
1. She disputed the closure of her complaint and asked for her complaint to be escalated to stage two. She said that since no work would be guaranteed she would like her complaint escalated. She said that it was an ongoing issue and no works had been completed and the problem was serious.
2. The landlord responded the same day and said that it had dealt with the resident’s initial complaint by raising a maintenance inspection to investigate what works were needed to resolve the issue. Escalating the complaint to stage two would only be done if she was dissatisfied with the outcome of the inspection and any works that were carried out following the inspection. This would then be escalated to the maintenance team.
3. The resident responded the same day asking for her complaint to be escalated as the problem was not resolved and she had not been advised on what works would be done to stop her from inhaling the smells from the garage.
On 26 May 2022 the landlord wrote to the resident to acknowledge the resident’s concerns about closing the complaint. It said:
1. Its responsibility with complaints was to either resolve the situation or to put a plan in place to resolve it within ten days.
2. It had accepted her concerns and had raised a repair for the garage and subsequently on her property to ensure that any issues were picked up and works put in place to resolve the issue.
3. Escalating a case to stage 2 would be for situations where it had not resolved the situation or put a plan in place to resolve the case. This did not apply in this situation, therefore the complaint would be closed. Should the situation not be resolved through the maintenance appointments it would be able to raise the resident’s concerns via the escalation process. Ultimately if there was an issue it would need to put it right as both the resident and the occupant of the garage below were acting correctly within the confines of their respective lease / tenancy. The only way it could escalate the complaint was for the resident to confirm what aspect of her concerns had not been addressed.
The resident responded to the landlord on 27 May 2022 and again disputed the closure of her complaint. She said that inhaling petrol fumes had given her cancer. She felt like her complaint had not been taken seriously and “every breath of the poisoning smell was taking its toll”.
On 13 June 2022 the resident had an appointment between 10 am and 2 pm for an inspection. She reported that no one had attended. The landlord’s records showed that the appointment had been cancelled but that the resident had not been told. The landlord contacted the resident on 14 June 2022 to apologise, it said:
1. It could see that that the inspection had been cancelled and it offered a £20 voucher as an apology which the resident declined.
2. The cancellation was due to the surveyor having already attended. The surveyor advised that there were no vehicles inside the garage, and only household possessions.
3. It said it was finalising the resident’s complaint and that she could escalate her complaint to the next stage of the process.
The resident responded the same day and said she was dissatisfied with the response and referred to previous reports from the fire brigade. She said that the occupant kept approximately 20 motor bikes which leaked petrol on a regular basis. She asked which garage the surveyor had inspected and why he had not knocked on her door.
The resident contacted this Service on 14 June 2022. She said she was dissatisfied with the landlord’s response to her reports. She said she was not able to escalate her complaint and that she had confirmed on several occasions what aspect of her concerns had not been addressed.
This Service contacted the landlord on 27 June 2022 to ask for the resident’s complaint to be escalated to stage 2.
The landlord contacted the resident on 28 June 2022 to acknowledge her request to escalate to stage 2 of its complaints process. The landlord said that it would telephone the resident to discuss her complaint.
The landlord responded at stage 2 of its complaints process on 13 July 2022. In its response it said that it had reviewed its stage one response to the resident and made the following findings:
1. With regard to the ongoing fumes into the property from the garage below, the landlord’s surveyor and neighbourhood manager had visited the garages on 7 July 2022 to inspect the garage reported. The surveyor and neighbourhood manager had met with the occupant of the garages who had provided access to all six of the garages. It said that it had taken photographs of its inspection.
2. It said there were no concerns of fumes or spillages. The garages appeared to all be well kept and organised. There was additional ceiling protection.
3. Following the visit on 7 July 2022 the landlord attempted to visit the resident but there was no response.
4. The landlord noted that a window to the resident’s home was wide open. It suspected that when running cars sat in the area this could contribute to the smell of car fumes.
5. The landlord had been unable to identify any evidence to support the residents claim of there being fumes from any of the garages and for this reason the complaint was not upheld.
6. The landlord had been advised that the fumes had previously been reported in 2021 and following this previous inspection the same findings were reported with no evidence of fumes from any of the garages.
7. It acknowledged that there had been failed appointments in January 2022 and £150 compensation had been awarded and accepted. A further £20 voucher was offered for a cancelled appointment on 28 January 2022 and this was declined.
8. It recognised the time, effort and inconvenience caused and made an offer of £320 in compensation. This was broken down as £200 in recognition of any service failures, delays and cancelled appointments experienced including time, effort, and inconvenience. £120 was awarded for the delay of the complaint being allocated to be reviewed at stage two. This was broken down as £40 for the ongoing fumes into the property from the garage below and £80 for missed and cancelled appointments from November 2021.
The landlord’s letter of 13 July 2022 was its final response to the resident’s complaint confirming that it had exhausted the landlord’s internal complaints process.
On 11 October 2022 the resident told this Service that she was still affected by fumes from the garage beneath her home and she wanted the gaps in the garage ceiling to be sealed. She said that the owner of the garage had about 30 motorbikes. There was a plastic cover on the ceiling, but this was not preventing the vehicle fumes getting into her home and she had to open the windows due to feeling overwhelmed by the fumes in the bedroom.

Assessment and findings

In reaching a decision about the resident’s complaint we consider whether the landlord has kept to the law, followed proper procedure and good practice and acted in a reasonable way. Our duty is to determine the complaint by reference to what is, in this Service’s opinion, fair in all the circumstances of the case.

The landlord’s response to the resident’s report of fumes

There was maladministration by the landlord in its response to the resident’s reports as:
1. The landlord led the resident to believe that work would be carried out to the garage to prevent the smells from continuing. In its communications it said “we will need to get our maintenance team out to the garage as it should be sealed correctly if it is attached to a flat”. It also said that it had raised a job for its maintenance team to attend the garage to see if they could seal it. It said it had accepted her concerns and had raised repairs for the garage and subsequently on her property to ensure that any issues were picked up and works put in place to resolve the issue. Following the inspection of the garages the landlord said that no works were necessary. The landlord did not reasonably manage the resident’s expectations.
2. The landlord did investigate the resident’s reports by meeting the occupant of the garages and carrying out an inspection. However, there is no evidence that the landlord has visited the resident in her home or carried out an investigation or assessment in her home to try and identify any smells.
3. The landlord’s records provided as evidence for this investigation showed that the resident had an illness but did not specify what the illness was. The resident told the landlord on a number of occasions that she had cancer which was exacerbated by the fumes. This Service has not seen evidence that the landlord has discussed the resident’s health issues, vulnerabilities or considered any detriment. The landlord has not updated its records to reflect the resident’s health conditions.
4. In the previous complaint investigated by this Service it was suggested by the landlord’s fire officer that some action was potentially needed to better seal the garage. It said that the fumes were intermittent and needed a further inspection before deciding on a course of action. There was no evidence to show the this had been followed up.
5. The landlord’s records showed that the resident had made reports of fumes coming into the property over a number of years and that the landlord had inspected the garages a number of times, found no evidence and closed the investigation into the reports.
  1. Given the number of reports, and that the landlord’s investigations were not providing the resident with reassurance that the problem had been properly investigated, it would have been good practice for the landlord to have considered further investigations either by a third party or by liaising with partner agencies such as environmental health.
  2. The landlord should have considered whether monitoring equipment could have been installed in the resident’s home to detect fumes.
  3. The landlord should have considered its obligations under HHSRS and tried to identify any risks and hazards in the resident’s home.
Whilst the landlord found no evidence following its inspection of the garages it did not fully investigate the resident’s reports or concerns. The landlord mentioned that there was a car park which it had identified could contribute to the smell of fumes. The landlord could have considered signage advising resident’s and visitors not to leave engines idle.
There were several failings in its handling of the resident’s reports. Taken together, these failings were significant enough to be considered maladministration.
When there are failings by a landlord, as is the case here, this Service will consider whether the redress offered by the landlord (apology and compensation) put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles; be fair, put things right and learn from outcomes.
The compensation offered was £200 for service failures, which included delays and cancelled appointments and also for time, effort and inconvenience. While the landlord offered some redress in the compensation it offered it was not proportionate to the failings in addressing the resident’s reports. It does not demonstrate that the landlord has put things right or learnt from outcomes from the previous determination of this case.
Therefore, for the reasons set out in the previous paragraphs this Service considers that the landlord’s response was not proportionate to the distress and inconvenience incurred by the resident and that the landlord has not made redress to the resident which, in this Service’s opinion, resolves the complaint satisfactorily.

Complaint handling

The landlord’s records showed that it initially failed to register the resident’s complaint in February 2022.
It is not disputed that the landlord further failed to progress the resident’s complaint through its escalation process. The resident made five requests to escalate her complaint to stage two and was consistently denied. It was only after the resident contacted this Service that her complaint was escalated to stage two of the landlords complaints process. The landlord should not have sought to close the complaint before it had been resolved.
The landlord did acknowledge its failure to escalate the resident’s complaint and offered £120 in compensation. However this was broken down as £80 for missed appointments and £40 for the ongoing fumes. This did not therefore compensate for its complaints handling failures.
There was therefore maladministration by the landlord in its handling of the resident’s complaint.

Determination (decision)

In accordance with paragraph 52 of the Scheme, there was maladministration by the landlord in respect of the handling of residents reports about fumes into the property.
In accordance with paragraph 52 of the Scheme, there was maladministration by the landlord in respect of complaints handling.

Reasons

The landlord failed to manage the resident’s expectations or address her concerns about her health and the impact the fumes were having on her. It also failed to fully investigate the resident’s reports of fumes entering her home.
The landlord failed to register the resident’s complaint in February 2022 and further delayed in escalating the resident’s complaint.

Orders and recommendations

Within four weeks of this determination the landlord is ordered to pay compensation directly to the resident in the amount of £920:
1. £600 for failing to address her concerns about the fumes from the garage.
2. £320 already offered if not previously paid.
Within four weeks of this determination the landlord is ordered to:
1. Visit the resident in her home to discuss her health concerns and update its records to reflect this. Make any necessary referrals in line with its vulnerable persons policy.
2. Follow up on the fire officer’s previous recommendations and fully investigate the resident’s reports.
3. Contact a reputable third party or partner agency such as environmental health and carry out an independent assessment of the residents home to detect any fumes. The landlord should install monitoring equipment in the resident’s home to detect any fumes.
4. Provide the resident and this Service with an update on its findings and any recommended actions and timescales.

Recommendations

The landlord should also consider erecting signs in the car park area notifying resident’s and visitors not to leave engines idle.