Waltham Forest Council (202331257)

REPORT

COMPLAINT 202331257

Waltham Forest Council

18 February 2025

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 reports of a bird in the chimney and chimney repairs.

Background

2. The resident is a secure tenant of a 3-bedroom house, owned by the landlord, where she resides with her adult daughter.
3. The resident complained to the landlord on 22 August 2022. She said that she had a broken chimney and there was a dead bird inside. She listed 8 dates, from 20 July to 11 August 2022, when she had made contact to report her concerns. She had previously reported a missing chimney cowl which it did not resolve. She said that having creatures falling through her chimney, causing smells, did not amount to “quiet enjoyment of her home”.
4. The landlord sent its stage 1 response on 12 September 2022. It said it was sorry about the resident’s experience with the bird. Its surveyor was arranging to install a cowl to the chimney and would assess if there were any remaining smells from the bird. It tried to avoid removal as it was a messy job and could disturb internal areas.
5. The resident asked the landlord to escalate her complaint on 4 October 2022. She believed the smell was a health and safety issue which had made her unwell with a chest/lung infection. Its surveyor attended months after her reports and could not smell anything. Despite there being no smell, the dead bird remained in her chimney. She was also unhappy with the surveyor’s visit and their refusal to take photographs or notes. She raised a new concern about a hallway cupboard and the quality of the painting done by its contractor.
6. The landlord sent its stage 2 response on 17 November 2022. It provided a link to its website confirming that it did not deal with feral pigeons or live trapped animals. It therefore had no obligation to remove the bird. It arranged to visit in September but, at her request, it rescheduled to October 2022. It apologised that there had been some communication issues with its surveyor.
7. The resident was unhappy with the landlord’s response and brought her complaint to us. She wanted to know why it had not attended when the smell was at its worst or removed the bird.

Assessment and findings

Scope of investigation

8. The resident told the landlord that the smell from the dead bird was a health issue. She had a chest/lung infection during August 2022 and asserted that this was from daily inhaling of the “pungent” smells.
9. The courts are the most effective place for disputes about personal injury and illness. This is largely because independent medical experts are appointed to give evidence. They have a duty to the court to provide unbiased insights on the diagnosis, prognosis, and cause of any illness or injury. When disputes arise over the cause of an injury, oral testimony can be examined in court. Therefore, the complaint about the cause of the resident’s chest/lung infection is better dealt with via the court. We can, however, consider any distress or inconvenience likely caused as a result of any failings by the landlord.
10. In the resident’s communication with us she said that in December 2022 she wrote a letter to the landlord’s solicitor about how the repairs had been carried out to the chimney. This included scaffold being erected which she believed was a security risk and metal clips being left in her garden following the scaffold removal. She also said that its contractors had continued to complete the work without making an appointment and that she had wanted to be at home. She continued to chase a response up to 2024.
11. We are unable to consider matters which have not exhausted a member’s complaints procedure. We have, therefore not considered the above as these matters were after the landlord’s final response and did not form part of the resident’s complaint.

Reports of a bird in the chimney and chimney repairs

12. The landlord’s repairs policy states that it will attend emergency repairs within 24 hours, urgent repairs within 7 days, and routine repairs within 28 days. Residents are responsible for seeking advice and taking action to deal with any pest infestations (where it is a resident responsibility). It will take action to manage pest infestations which it is responsible for. The amount of time will depend on how serious the problem is and the level of risk to the household.
13. The landlord’s website explains that it does not provide a treatment service for feral pigeons. Professional pest controllers may be able to prevent pigeons landing on roofs, balconies, and other areas.
14. In the resident’s complaint she said that she had reported her concerns on 20 July 2022. She heard “bird flapping noises” and “cries of distress” inside the chimney. She listed further contact dates as follows:
    1. On 21 July 2022 she contacted the pest control section who told her it was not a pest control matter. The same day she reported it to customer services who said they would send an email to the estate office.
    2. On 27 July 2022 the estate office said it would email the estate officer.
    3. On 3 August 2022 she spoke with a staff member who said it was not a disrepair matter. The same day she spoke with customer services who said they would send an email to the surveyor to contact her.
    4. On 5 August 2022 she called the surveyor who claimed to know nothing of her concerns. She told them it was a health issue due to the unpleasant smell. She had told it about her missing chimney cowl before, but it had done nothing. She chased the replacement of the cowl on 11 August 2022.
15. The resident said that there was an “implied expression of the tenancy agreement” that she was entitled to quiet enjoyment of her home. The bird falling through the chimney, dying, and causing a smell, did not amount to quiet enjoyment. She had to endure the smell for weeks and unless it attended to remove the dead bird and fix the chimney, she would pursue legal action.
16. It may be helpful at this point to explain that quiet enjoyment refers to the right to live in your home without being disturbed by the landlord or people they send to your home. It may be breaking the right where it enters the home without permission or refuses to carry out repairs.
17. In the landlord’s stage 1 response it confirmed that its surveyor was arranging to install a chimney cowl. It said it was sorry about her unpleasant experience with the bird, but this did happen on occasions where birds found themselves in this situation and perished. If there were still smells it would carry out removal but would normally avoid this due to causing a mess. Its surveyor would assess this and whether the chimney needed to be opened up.
18. The landlord’s response was reasonable and showed empathy for the resident’s experience. There was no evidence provided by either party to suggest that the cowl had been reported previously. It was therefore reasonable for the landlord to raise an order to install a cowl. However, the landlord failed to acknowledge the number of times the resident had reported her concerns from 20 July to 11 August 2022. She had been directed to different departments which appeared to have raised her expectations that it would act on her concerns. Its response also implied that it may remove the bird if there were smells present.
19. The landlord’s records of 12 September 2022 said that the resident had requested a home visit to assess the smell. It had explained how messy a job cleaning out the chimney would be but promised that it would at least gauge the smell and assess if removal was necessary.
20. In the resident’s escalation request she said that it was clear that the landlord had chosen not to address her concerns. She said that the smell was “pungent” during July and August 2022 when temperatures were 40 degrees. The surveyor attended on 11 October 2022 and could not smell anything, but it had failed to attend when it was at its worst. They had not read her letter and refused to read it when she offered during the visit. They had also not taken any notes or photographs of her fireplace. The surveyor said they would ask the contractor to return to deal with poor quality painting of the cupboard, but again refused to take photographs.
21. In the landlord’s stage 2 response it acknowledged and agreed with the resident’s sequence of events. It confirmed that it had given correct advice in July 2022 in that it did not provide a service for feral pigeons or trapped live animals. She had mentioned speaking with 2 named staff members, however, its teams had confirmed that neither person worked for them. It appeared that the calls were handled by its contractor contact centre. It had listened to the calls made on 3 August 2022 and its representative provided the contact number for the tenancy officer, who found no record of her concerns.
22. The landlord said that its repairs policy and tenancy terms were silent on whose responsibility it was to deal with trapped live animals. Its surveyor was originally contacted about the trapped bird but as it was not a repair they could take no action. When her complaint was submitted, its surveyor was asked to visit to assess the potency of the smell. An appointment was booked for 28 September 2022, but this was rescheduled to 11 October 2022 at the resident’s request. Its surveyor said there was no smell at the time of the visit, and they raised an order to replace the cowl.
23. The landlord’s response was reasonable in confirming its responsibilities. However, had it attended when the resident said the smell was at its worst, it is possible that it may have witnessed the smell and agreed to removing the bird as outlined in its stage 1 response. Its appointment of 28 September 2022 was over a month after the resident initially reported her concerns and over 2 months when it attended in October 2022. By not visiting until October 2022 the smell had likely dissipated. While it had no obligation to remove the bird, it did have an obligation to assess any smells in the property.
24. In its response the landlord said it was sorry that she felt there were issues with communication with its surveyor. It had shared her letter with the surveyor on 2 September 2022 before they attended the resident’s home. It was possible that they had not had time to read the letter before the visit. It was also possible that they did not wish to read the letter during the visit as their focus would have been the repair rather than the dead bird. It accepted that it would have been courteous for the surveyor to have read the letter prior to the visit. But it was unlikely this would have had an impact on whether it could remove the dead bird. If the dead bird were still in the fireplace, she would need to arrange a private contractor to remove it.
25. As stated previously had the landlord inspected the resident’s home in July or August 2022, it may have removed the dead bird if it had witnessed the smells as inferred in its stage 1 response. It was therefore unreasonable to advise her that removal would now be her responsibility.
26. The landlord stated that the hallway cupboard had not formed part of the original complaint. However, it did not feel the surveyor’s refusal to take photographs was a service failure. It may have been that the visual inspection was sufficient. Its surveyor inspected the cupboard and said the work was in fair condition. It recognised that its response would likely disappoint the resident, but it found no evidence of service failure about the dead bird. It was sorry that the surveyor was not as amenable as she might have liked during the visit and that better courtesy could have been shown.
27. The landlord’s response and apology was reasonable. There was a delay in the landlord’s stage 2 response and while not significant, it would have been appropriate for it to have apologised for this.
28. The landlord’s records show that an order was raised to install a “colt” cowl to the chimney which required 10m high scaffold. The resident confirmed that the work was completed in December 2022. This was 4 months after the resident’s complaint and reports of a missing cowl. This was not in line with its repairs policy timescale of 28 days for a routine repair.
29. In summary, the landlord delayed in inspecting the resident’s home and replacing the chimney cowl. It raised her expectations in its stage 1 response. We therefore find that it failed to appropriately address the resident’s concerns in relation to this matter and make a finding of service failure.

Determination

30. In accordance with paragraph 52 of the Scheme there was service failure in the landlord’s handling of the resident’s reports of a bird in the chimney and chimney repairs.

Orders and recommendations

Orders

31. The landlord is ordered to take the following action within 4 weeks of the date of this report and must provide us with evidence that it has complied with these orders:
    1. Pay directly to the resident £50 compensation for the distress and inconvenience for its failings to investigate the smell and complete repairs within its policy timescale.
    2. Send a written apology to the resident for the failings identified in this report.

 Recommendations

32. The resident told us that she has been trying to contact the landlord about the chimney repairs since December 2022 and chasing responses up to 2024. We recommend that the landlord contact her to discuss her outstanding concerns about the chimney repairs.