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Tower Hamlets Council (202226420)

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REPORT

COMPLAINT 202226420

Tower Hamlets Council

6 November 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
    1. The resident’s reports of a foul smell in the property.
    2. The associated complaint.

Background

  1. The resident has a secure tenancy and lives in a flat.
  2. On 24 May 2021 the resident contacted the landlord to report a bad smell in the property. The landlord raised works to investigate the smell and possible leak into the property. The resident reported that she could not smell anything when the plumber attended on 27 May 2021. A contractor attended the property on 22 June 2021 and stated there were no blockages on site and all the drains were clear and free flowing. The contractor noted the resident had stated the smell was coming from the hallway floor. A request was then made for a repairs inspector to visit the property to investigate the reported smell.
  3. In August 2021 the landlord removed flooring in the resident’s hallway and removed part of the bath panel to access the waste stack pipe but did not locate any leaks or smell. On 14 December 2021 the landlord attended the property after the resident reported a foul smell coming from the airing cupboard. The issue was referred to a repairs inspector because there were smells throughout the property, which the contractor thought could possibly be from drainage or sewers under the floorboards. No further actions were taken after the landlord terminated its call to the resident on 17 December 2021. The landlord stated the call was terminated because the resident used offensive language.
  4. On 16 March 2022 the landlord received a complaint from the resident’s representative because the resident was unhappy that the foul smell she had been reporting to the landlord had not been resolved. The resident stated the issue had been on-going since October 2019 and she had been in touch with the landlord about it on numerous occasions. The resident stated the smell had become worse since December 2021 and she believed the smell was coming from under the property. The resident referred to the landlord sending plumbers, representatives from Environmental Health and pest control and its surveyors to investigate the issue, with no resolution. She advised the landlord had first attended in May 2020 but it had never contacted her about any of its findings. The resident referred to a number of visits in August 2021 and stated the smell had been found in the bathroom in the drainpipe at the back, after the landlord had made a hole in the bathroom wall. The resident stated she struggled to breathe in the property and suffered from sores in her nose, dizziness, sickness, ear popping, dry mouth and severe distress and anxiety.
  5. The resident wanted the landlord to take urgent action to eliminate the foul smell in the property. She asked for a CCTV drainage survey and an air quality check of the property to be carried out. The resident also wanted the landlord to check the air bricks and provide her with reports for the soil stack, broken drain, air quality and ventilation.
  6. The landlord responded to the stage 1 complaint on 29 March 2022. It stated that a number of work orders had been raised in response to the resident’s reports of a foul smell in the property and referred to attending the property to investigate on 14 December 2021. The landlord stated that it had not raised any further works or taken any further action because the resident became hostile and aggressive during the telephone call with the repairs inspector on 17 December 2021, which resulted in the call being terminated before an assessment could be completed. The landlord advised it was its current practice to carry out an initial assessment via telephone. It stated it was important that an inspection was carried out in order to clarify the necessary steps to take and to determine what works were required. The landlord advised it had raised an inspection and had scheduled an appointment for 7 April 2022.
  7. On 7 April 2022 the repairs inspector spoke to the resident and advised a physical inspection needed to take place, which the resident declined. The resident also declined the repairs inspectors offer for a ventilation company carry to out an air quality test.
  8. On 30 May 2022 the landlord received the resident’s complaint escalation request. The resident was not happy that the inspection on 7 April 2022 had been a telephone call. The resident stated that during the call the landlord had advised only fitting a fan could combat the odour inside the property. She advised the landlord was aware that installing a fan would increase her electricity costs, create noise disturbances and not provide a long-term fix to the issue. The resident stated she had not received any reports following the landlord’s visits and investigations and she outlined the impacts the smell was having on her health.
  9. The landlord responded to the stage 2 complaint on 4 July 2022. It outlined the works and inspections raised from May 2021 in relation to the reported foul smells. It stated that in March 2021 the inspectors had noted the smell could be due to outside air coming from the air bricks into the property, which could not be changed. The landlord referred to the resident rejecting the offer of a physical inspection of the property and the recommendation of having a ventilation company carry out an air quality test. The landlord stated it had provided the resident with an adequate level of service by attending all the work orders which had been raised and providing the resident with possible solutions. The landlord recommended an air quality test be carried out and a ventilation fan installed in the property. It advised that if the resident agreed to its recommendations, she would need to contact the repairs team to arrange an inspection visit.
  10. The resident contacted the Ombudsman because she was unhappy that the foul smell issue had not been resolved. She was also dissatisfied with the way the landlord had handled her complaint. The resident stated there had been consistent and lengthy delays with the landlord responding and there was a lack of solutions to the reported issues. She advised the smell had a severe impact on her mental and physical health and her well-being. The resident believed the landlord had failed to assess and respond to the issue with the appropriate and proportionate urgency. The resident felt the landlord’s offer to install a ventilation fan as a solution to the foul smell was inappropriate and would ruin her right for the quiet enjoyment of her home. As a resolution the resident wanted to be moved and the landlord to pay for the moving costs. She wanted the landlord to provide copies of any reports relating to its investigations and works carried out in connection to the reported foul smell and details of the ventilation company it recommended carry out the air quality test.

Assessment and findings

  1. Principles – these are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are three principles driving effective dispute resolution:
  2. Be fair – treat people fairly and follow fair processes;
  3. Put things right, and;
  4. Learn from outcomes.
  5. The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the resident. If it is found that a failing did lead to an adverse effect the investigation will then consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes’.

Scope of investigation

  1. The resident advised the foul smell issues had been on-going since around October 2019. Whilst the historic issues give context to the complaint, this investigation has not considered any specific events prior to May 2021. As per paragraph 42(c) of the Housing Ombudsman Scheme, the Ombudsman may not consider complaints which were not brought to the attention of the member (landlord) as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising. The Ombudsman has not seen evidence that the resident raised a formal complaint to the landlord until 16 March 2022. Therefore, we have considered events from 6 months before this date onwards.
  2. The resident stated in her complaint that she has experienced a number of adverse physical and mental effects, including sores in her nose, dizziness, sickness, headaches, ear popping, dry mouth, extreme discomfort, distress and anxiety as a result of the smell in the property. The Service does not doubt the resident’s comments about the impact on her health and we can appreciate that it would have been a very difficult time for her. However, it is outside our remit to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be more appropriately dealt with as a personal injury claim through the courts or liability insurance. The service’s decision not to consider this aspect of the resident’s complaint is within accordance of paragraph 42(g) of the Housing Ombudsman Scheme, which says “the Ombudsman will not consider complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure”. The Service has considered the general distress and inconvenience which the situation may have caused the resident as well as the landlord’s response to the concerns she had raised about her health.
  3. The Ombudsman can only consider complaints which concern local authorities’ actions that directly relate to their role as social landlords. The use of the Environmental Health Service and pest control is available to all residents in the area regardless of whether someone is a tenant of the local authority. Therefore, it is not directly linked to the local authority’s role as a social landlord and the Ombudsman cannot consider this aspect of the complaint. Paragraph 42 (k) of the Scheme sets out that “the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body”. The resident may wish to contact the Local Government and Social Care Ombudsman (LGSCO) for further assistance about the visits from Environmental Health and pest control if she remains dissatisfied with these services. The LGSCO is able to investigate complaints about local authorities’ other activities which do not directly relate to housing.
  4. It is also outside the Ombudsman’s jurisdiction to consider local authorities’ rehousing decisions. Therefore, we could not order or recommend that the landlord move the resident to another property as this would be outside our remit. The resident may be able to refer a complaint to the LGSCO if she is unhappy with the landlord’s response to her rehousing request.

Policies and Procedures

  1. The tenancy agreement states the landlord will carry out its legal responsibilities to repair a tenant’s home. The landlord will make sure that the structure and exterior of the home (which includes things like drains, gutters and external pipes) are kept in repair.
  2. The landlord’s responsive repairs policy states “any reported repairs not capable of being clearly identified from the details initially supplied will be referred to a repairs inspector or surveyor for investigation. These repairs will require pre-inspections and an appointment will be offered for this”. The landlord’s target is to respond to emergency repairs within 24 hours and routine repairs within 20 working days.

The landlord’s response to reports of a foul smell in the property

  1. The resident’s concerns and anxiety about the reported foul smell in the property are wholly understandable. However, the Ombudsman’s role is not to investigate this issue or any potential risk to the resident, but rather, it is to provide a review of the landlord’s actions in its response to the concerns raised by the resident. We will consider whether the landlord acted in line with its legal obligations, its relevant policies and industry best practice.
  2. The landlord’s records show it attended the property in May 2021 to investigate the reported foul smell, which its staff and the resident could not detect during the visit. In line with the landlord’s responsive repairs policy, the issue was referred to a repairs inspector when the cause of the reported foul smell could not be located in June 2021, after the drains had been checked and no blockages were found. The landlord demonstrated that it took sufficient action in trying to locate the source of the reported smell by investigating the drains and removing the flooring in the hallway and panels in the bathroom in August 2021. These actions are sufficient and in line with the type of investigations the Ombudsman would consider reasonable, in trying to determine the cause of the reported foul smell.
  3. Considering the length of time the matter had been on-going, the Ombudsman can understand the resident’s frustrations when the landlord wanted to conduct another inspection after it attended the property on 14 December 2021. As the landlord was not able to identify the cause of the foul smell, it is understandable why it had required further investigation. Although it is the landlord’s policy to carry out a telephone pre-inspection before a physical inspection, given the history of the reported smell and the landlord’s recent attendance, the landlord could have considered arranging a physical inspection in the first instance. This may have limited the resident’s frustrations during the landlord’s call to her on 17 December 2021 and sped up any potential further action being taken.
  4. In March 2022 the landlord raised another inspection of the property, its records show the landlord had noted that the smell could be due to outside air coming from the air bricks. It does not appear that a physical inspection was carried out to confirm this and the landlord’s records show the resident declined the offer of a physical inspection in April 2022.
  5. Based on the information presented to the service, the landlord has demonstrated that it has taken adequate steps to investigate the reports of a foul smell in the property, in accordance of its responsive repairs policy. The landlord visited the property 5 times between May 2021 and March 2022 and made reasonable recommendations of installing a ventilation fan and conducting an air quality test to try and address the issue. The landlord is entitled to decide on what steps it should take to try and resolve the reported foul smell. If these steps do not work, the landlord should consider alternative actions. However, at the moment the resident has refused the landlord’s suggested actions. Therefore, the landlord cannot reasonably be expected to do anything more. However, the landlord could have explained its position to the resident more clearly to help mitigate the concerns she had raised about the installation of a ventilation fan.
  6. Overall, the landlord has taken sufficient steps to reasonably investigate the reported foul smell in the property. The Ombudsman would not have expected the landlord to take any further actions based on the evidence available. Therefore, the landlord would not be obliged to pay the resident’s moving costs if she decides to move to another property.

 

Complaint handling

  1. The landlord’s complaints policy advises it will endeavour to respond to as many complaints as possible within 10 working days in line with the principles of the Housing Ombudsman’s Complaints Code (the code). The code is published on our service’s website and sets out our expectations of landlords’ complaints processes. The landlord aimed to provide a stage 2 response within 20 working days. At both stages of its internal complaints process the landlord provided the resident with complaint responses within accordance of the timescales set out in the code.
  2. However, the landlord failed to address the resident’s complaint points about the foul smell affecting her health. The resident had asked the landlord to conduct a CCTV drainage survey and check the buildings air bricks and she had also asked the landlord to provide reports of the soil stack, broken drain, air quality, ventilation and any investigations it had carried out. The code sets out that landlords are expected to provide full responses to complaints. It states, “landlords must address all points raised in the complaint and provide clear reasons for any decisions, referencing the relevant policy, law and good practice where appropriate”. The Ombudsman would not necessarily expect the landlord to carry out all of the resident’s requests, because as stated above the landlord is entitled to decide how to investigate and resolve reported repairs as it sees fit however it should have explained its position more clearly to the resident.
  3. The landlord’s internal records show it had considered the possibility that the cause of smell could be coming from the air bricks and this was something that could not be changed. The landlord should have detailed it had considered the air bricks as the cause of the smell in its complaint responses because the resident had specifically asked for the air bricks to be checked.
  4. Whilst this shortcoming in the landlord’s complaint handling would have caused some level of frustration and inconvenience to the resident, the Ombudsman does not consider that it amounts to service failure because it did not change the overall outcome of the complaint.
  5. The Ombudsman also notes the resident did not provide the landlord with details of her medical records until 30 November 2022, which was after the landlord had issued its stage 2 complaint response. We therefore would not expect the landlord to have addressed this through its complaints process. However, going forward the landlord should ensure that it addresses all issues raised by residents in its complaint responses and it should respond to the resident’s concerns about her health, if it has not done so already.

Determination

  1. In accordance with paragraph 52 of the Scheme there was no maladministration by the landlord in respect of its handling of the reported foul smell within the property.
  2. In accordance with paragraph 52 of the Scheme there was no maladministration by the landlord in respect of its complaint handling.

Recommendations

  1. It is recommended that the landlord carry out a CCTV drainage survey if it has not done so already or explains to the resident why it will not carry one out in response to her request.
  2. It is recommended that the landlord make another offer to the resident to carry out an air quality test at the property and install a ventilation fan.