One Manchester Limited (202225060)

REPORT

COMPLAINT 202225060

One Manchester Limited

19 December 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

The complaint is about the landlord’s handling of the resident’s reports of anti-social behaviour (ASB).
The Ombudsman has also considered the landlord’s complaint handling.

Background

The resident holds an assured shorthold tenancy since 8 December 2016. The landlord is a housing association.
The property is a 1-bedroom flat located on the first floor of a converted house.
The ASB reports relate to the resident’s neighbour who will be referred to as “Tenant A” within the report. The tenancy agreement for Tenant A has not been provided for this investigation. However, it is assumed that the tenancy terms will be similar to those of the resident.
The landlord’s records show that the resident reported smoke transfer into his bedroom and bathroom on 3 August 2020. A further report was made on 14 January 2021 that cigarette smoke from Tenant A was entering his property and affecting his breathing. The resident said that after speaking to Tenant A, nothing had improved.
The resident complained on 8 October 2021 about insulation works to be completed and that there were multiple repairs outstanding. The complaint does not detail the repairs that the resident was referring to. It is noted that the landlord called the resident on 15 October 2021 to discuss the complaint. As there was no answer, a voicemail message was left.
The landlord provided its initial complaint response on 21 October 2021. The landlord said that its technical team had visited the resident’s property and it had raised 4 repair orders to be completed on 3 November 2021. The landlord apologised that the resident’s concerns remained unresolved.
The following day, the resident phoned the landlord to complain about Tenant A chain smoking in her property. The resident said that he found the smoke transfer into his property distressing. He went on to say that he intended to contact his doctor and wanted this issue added to his complaint.
The resident contacted the landlord on 18 January 2023 to request a final complaint response as it had not acted since a determination made by this Service. The resident also requested that the landlord provide backdated stage 1 and 2 complaint responses to allow him to contact this Service.
The landlord re-sent the stage 1 complaint response to the resident on 21 February 2023. The landlord informed the resident that the complaint response had been sent over 12 months previously – on 21 October 2021. In his reply on 21 February 2023, the resident said that the initial complaint response did not comprehensively address his concerns and the landlord had exceeded its complaint handling timescales. However, he was happy to discuss this.
The landlord provided its final complaint response on 26 April 2023. The landlord said it had spoken to the resident on several occasions regarding his complaint and noted that he had agreed to extend the time for it to provide its final complaint response (to 26 April 2023).
The landlord went on to say that it had offered the resident a move via a direct let to another of its properties. With regard to the resident’s specific complaint about the handling of the reports of ASB, the landlord said:
1. In 2017 and 2019, it had received ASB complaints from the resident.
2. After that, new ASB reports were received on 26 July 2021 and 22 October 2021.
3. From November 2021 to January 2022, it was in contact with the resident and it had a register of his ASB reports. Also, visits to the building were completed between those dates.
4. The first visit to Tenant A occurred on 18 January 2022. Previous visits it carried out to contact Tenant A were unsuccessful.
5. The resident’s signed witness statement was sent to its solicitors on 7 March 2023 and the claim was with them.
6. It had not effectively engaged with the resident to get a resolution which resulted in him often having to make contact. It had not met its service standard and offered its apologies for this.
7. The director of customer and communities would be made aware of the resident’s concerns. This would result in the resolution being expedited and the resident receiving regular updates.
8. It made an overall compensation award of £4,000. With regard to the specific issues raised by the resident as part of this complaint, £400 was awarded for its delay in resolving the reported ASB since 2017. A further £400 was awarded for its slow response in addressing his concerns regarding the ASB. The landlord also awarded an additional £400 for its general slow response and that the resident had to chase it for updates.
9. It repeated its offer to move the resident to an alternative property. This would include decoration and carpets.
The resident accepted the compensation and this was paid to him in May 2023.
It is noted that the landlord obtained an injunction against Tenant A on 31 May 2023. The terms of the injunction informed Tenant A that she should not engage in conduct capable of causing nuisance and annoyance. This extended to not allowing smoke to get through the communal areas and into neighbouring flats.
The resident remained dissatisfied and escalated the complaint to this Service.

Assessment and findings

Scope of investigation

While this Service is an alternative to the courts, it is unable to establish legal liability or whether a landlord’s actions, or lack of action, have had a detrimental impact on a resident’s health. Nor can we calculate or award damages. The Ombudsman is therefore unable to consider the personal injury aspects of the resident’s complaint. These matters are likely better suited to consideration by a court or via a personal injury claim. Nevertheless, the Ombudsman has considered the general distress and inconvenience which the situation may have caused the resident.
It is accepted that the reports of ASB have been ongoing for several years. This Service previously determined a complaint in March 2019 that included reference to smoking. We understand that the resident complained to the landlord about this matter on 22 October 2021. The landlord provided its final complaint response on 26 April 2023. The final complaint response responded to several issues raised by the resident. However, the resident has subsequently confirmed to this Service that he only requires our investigation to consider the landlord’s handling of his reports of ASB. The Ombudsman has investigated, and determined, the case accordingly.
It is noted that the landlord has informed the resident of its intention to return to court to enforce the terms of the injunction obtained against Tenant A. If the resident is dissatisfied with the time taken by the landlord to return to court, he can make a new complaint to the landlord. Once that complaint has completed the landlord’s internal complaint procedure, if he remains dissatisfied, the resident can bring the matter to this Service for consideration.
After the complaint process was exhausted, the resident said in October 2023 that his belongings were damaged as a consequence of the smoke transfer. The landlord should confirm to the resident how it will deal with his claim for damage to his belongings.

The complaint is about the landlord’s handling of the resident’s reports of ASB

The Ombudsman’s role is to establish whether the landlord’s response to the resident’s reports were in line with its legal and policy obligations. Also, to assess whether the landlord’s actions were fair in all the circumstances of the case.
It is appreciated that the resident has been upset and distressed by the ongoing dispute with his neighbour and frustrated by the landlord’s handling of the report of smoke transfer into his property. The resident’s feelings are understood and it is not disputed that dealing with such situations is stressful.
The landlord has been aware of the resident’s concerns about smoke transfer into his property for some years and earlier investigated complaints about the same matter.
The landlord told this Service that it considered that the resident’s report of ASB in January 2021 did not meet the threshold to be considered under its ASB policy. Therefore, it took tenancy action to resolve the reports. However, the landlord records do not show its assessment of the resident’s report or how it determined that the resident’s reports did not meet the threshold to be considered ASB. It is not reasonable that there is no evidence that it carried out a risk assessment or agreed an action plan with the resident. This is contrary to the obligations set out in the landlord’s ASB policy which states that it will assess the reported issues to determine whether the threshold is met.
Linked to the resident’s complaint about smoke transfer, in August 2021, the landlord agreed to carry out an inspection of the flooring in the resident’s property. It conducted works in September 2021 to seal the bathroom floor and in November 2021 to replace a section of the bedroom floor. This was to reduce the smoke transfer into the resident’s property.
Before enforcement proceedings were taken, it was reasonable that the landlord considered the informal action available to it to address the reports of smoke transfer. A landlord should generally only consider taking formal action if informal attempts have not successfully resolved the issue.
In its final complaint response, the landlord informed the resident that it had unsuccessfully attempted to speak with Tenant A on multiple occasions and had undertaken visits to the building. It added that a warning had been given to Tenant A in March 2022. The landlord’s submission to this Service did not include evidence of the action that the landlord said it had taken.
In the absence of available records, it is difficult for this Service to confirm the action that the landlord took in response to the resident’s concerns and whether that action was undertaken in a reasonable timescale. Given the landlord accepted that it took too long to respond to the resident’s concerns, apologised for this and made an award of compensation, it is reasonable to conclude that its action were not in line with its service standards
Once the landlord decided that formal tenancy action may be necessary, it was reasonable for it to inform the resident that it was obtaining legal advice. Given the length of time the issue had been outstanding, it was appropriate for it to establish the actions possible under the tenancy agreement.
The landlord confirmed to the resident its intention to take legal action against Tenant A. The resident completed and returned his witness statement in August 2022. The landlord explained to the resident in July 2022 and September 2022 that its ability to take action was hampered by the backlog in the courts which would affect when the claim could be heard. It was reasonable that the landlord explained the delay to the resident and managed his expectations on circumstances that were outside its control.
The landlord acknowledged through the complaints process that it did not keep the resident properly updated about the action it was taking to address the reports of ASB and progress while the claim was with its legal team. The Ombudsman expects landlords to keep residents informed and to manage their expectations. In this case, communication too often relied on the resident chasing updates from the landlord. This inevitably caused the resident unnecessary resident time and trouble. Had the landlord’s communication been more frequent and clearer, this would have reassured the resident that his concerns were being taken seriously.
The landlord obtained an injunction against Tenant A on 31 May 2023. The terms of the injunction stated that Tenant A should ensure that she kept her property ventilated and stop causing nuisance and annoyance to the resident. The term of the injunction lasted for the time that Tenant A remained a tenant of the landlord. It was appropriate that the landlord pursued enforcement action through the courts.
In the meantime, it was reasonable that the landlord offered the resident an opportunity to undertake a direct move to alternative accommodation. In doing so, the landlord recognised the impact on the resident of the ongoing smoke transfer. The landlord’s offer of alternative accommodation included decoration of the property and the inclusion of carpets. This was beyond its routine offer of alternative accommodation and demonstrated that the landlord was resolution-focused.
The Ombudsman’s dispute resolution principles are to: be fair, put things right and learn from outcomes. In its final complaint response, the landlord identified that it had taken too long to resolve the resident’s ASB concerns. It apologised to the resident for the failures in its overall service delivery and made an overall compensation award of £4,000. With regard to this complaint, £800 was awarded for its failures, made up of £400 for the slow response to the resident’s ASB concerns and £400 for its communication failures since 2017. In addition, the landlord offered £400 for its overall slow response to the resident’s concerns and his need to chase updates.
The Ombudsman’s Remedies Guidance says that compensation awards over £600 can be made where the landlord’s service failure had a significant impact on the resident. The landlord’s compensation offer was within the range that the Ombudsman would recommend when there have been failings that had a significant impact on the resident (a physical and/or emotional impact) and where the circumstances for a maladministration finding apply. We therefore conclude that the landlord’s compensation award was proportionate given the impact of its delays and communication failings over an extended period of time (up to April 2023).
Overall, the landlord has accepted that its service provision to the resident should have been better. It identified its service failings, apologised, made senior management aware of the case, awarded compensation to recognise the impact on the resident and considered alternative redress such as a property move. Given all the circumstances of the case, the Ombudsman is of the view that the landlord offered reasonable redress for its failings.

Complaint handling

The landlord’s complaint procedure sets out that it will respond to complaints that it receives within 10 working days and sets out the ways residents can make complaints. With regard to the resident’s complaint about ASB, this was made by phone on 22 October 2021. There is no evidence that this complaint was registered by the landlord or considered as part of its initial complaint response. This was a failing as the landlord did not act in line with its complaint procedure.
While the resident did not receive a complaint response about the smoke transfer within a reasonable period, there is no evidence that he chased a response for several months. Around 9 months later (in July 2022), the resident emailed the landlord to request an escalation of the complaint. It is noted that the resident was communicating with the landlord about linked and related complaints regarding the smoke transfer into his property. The resident expressed that he was dissatisfied with the time taken to address the ASB. On obtaining the landlord’s explanation about the delays with the court, the resident said he was satisfied with the landlord’s explanation. Therefore, it was reasonable for the landlord to believe that it had addressed the resident’s concerns about ASB at that point.
The landlord’s records show that on 21 December 2022, the resident requested that the complaint regarding the outstanding ASB-related court action be progressed. There is no evidence that the landlord responded to the resident’s email and the resident chased a complaint response on 13 January 2023. On learning that the resident had not received the October 2021 stage 1 complaint response, it sent a copy on 21 February 2023.
Before sending its stage 1 complaint response, the landlord missed an opportunity to review the contents of that response. Had it done so, it would have realised that the response did not include an investigation of the resident’s concerns about the ASB he had experienced. This was a failing. The landlord should have informed the resident that it would act in accordance with its complaints procedure and assess its handling of the ASB reports up to that point. This would have given the resident the opportunity to consider and challenge the landlord’s response by escalating the complaint for further review.
In its final complaint review, the landlord acknowledged the frustration and disappointment experienced by the resident and recognised it had not met its service standards. While the landlord acknowledged there had been service failures that had impacted the resident, it did not identify any failures in its complaint handling. This was not reasonable as the purpose of the complaint review is to put things right and learn from complaints received. For those reasons, a finding of service failure had been made.

Determination

In accordance with paragraph 53 (b) of the Housing Ombudsman Scheme, there was reasonable redress in the landlord’s handling of the resident’s reports of anti-social behaviour.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s complaint.

Orders and recommendations

Orders

Within 6 weeks of the date of this determination, the landlord should:
1. Send a written apology to the resident for the complaint handling failure.
2. Pay the resident £150 for the time and trouble and inconvenience caused to him by its complaint handling failures.
The landlord must reply to this Service with evidence of compliance with these orders within the timescale set out above.

Recommendations

If it has not already done so, the landlord should inform the resident how he can make a claim for damage to his belongings due to smoke transfer from the property below.
If it has not already done so, the landlord should provide the resident with a full written update on progress with any ongoing enforcement action and an action plan, including timescales, for any planned further steps.