Wandsworth Council (202221777)

Back to Top

 

REPORT

COMPLAINT 202221777

Wandsworth Council

12 September 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. Reported fragments and dust particles in the property.
    2. Repairs to the extractor fan.
    3. The associated complaint.

Background

  1. The resident is a secure tenant of the landlord. The property is a flat.
  2. The resident contacted the landlord on 25 May 2021 to state the extractor fan had sucked up glass fibres from a medicine bottle she had accidently broken and it had contaminated the air in the property. The resident stated she was experiencing physical problems including chest pains and skin complaints due to this. She advised the glass fibres had caused her mental anguish and painful scratches and cuts. The resident asked for a flush cleaning of the extractor fan.
  3. The landlord spoke to the resident about the concerns raised and advised her on 9 June 2021 that an order had been raised for a new vent to be fitted in the bathroom where it was missing. The landlord advised no faults were found with the extractor fan. The landlord also advised broken glass could not be circulated by the extractor fan. It stated the fan was designed to remove air from the property rather than blow the air around. The landlord recommended the resident speak to her GP regarding the physical and mental symptoms she had described.
  4. In January 2022 the resident asked for the air and dust in the property to be tested for hazardous particles because she found it unbearable living in the property. Works were raised to check the bathroom extractor fan and vent in the loft, following a visit to the property on 14 February 2022. The landlord advised the resident that it did not have the facility to test the air in the property for unknown particles. It also advised that following on from the estate manager’s visit, it could not identify any sign of excessive dust or mould growth at the property, which could have presented a health risk. The landlord told the resident it would be installing two separate fans with a vent run through the loft space because the current extractor fan was not as efficient as it should be.
  5. On 11 June 2022 the resident raised a complaint with the landlord because she was unhappy with its response to her reported living conditions. The resident advised she had moved out of the property for over two months in the summer of 2021 and also had to throw away items including clothing and furniture.
  6. The resident also stated she was contacted by a building company which advised it had received complaints from other residents about disruption from construction in the area. When the resident contacted the building company, she was asked if there could be asbestos or fibre glass in the property. The resident advised the issue had taken a huge emotional and physical impact on her and she felt it was shameful and wrong that the landlord had taken nearly a year to visit the property. The resident was also unhappy a new extractor fan had not been installed. As a resolution, the resident wanted the landlord to carry out air tests in the property and to explain why there were several air ducts going into the loft space above the property. The resident also wanted the landlord to resolve the reported dust issue.
  7. The landlord provided a stage one complaint response on 11 July 2022, which stated the extractor fan in the adjourning wall between the bathroom and toilet was replaced with a separate fan for each room.
  8. The landlord’s visit to the property on 23 June 2022 did not identify any fragments or excessive levels of dust. The landlord advised it did not identify any hard or gritty substances on the lint roller the resident used to show the particles. The landlord was not in the position to test the air and the resident was unable to state what she felt the air should be tested for.
  9. The landlord said photos provided by the resident of small scratches and skin abrasions were not enough to evidence an issue in the property. The landlord advised it was important the resident continued to liaise with her GP should those problems continue.
  10. The resident asked for her complaint to be escalated on 26 June 2022. The resident felt the extractor fan works were only carried out because she had complained and she remained unhappy with the delay to the new extractor fans being installed. The resident was also unhappy the landlord had made a referral to the local NHS psychiatric team. The resident stated she found it alarming the landlord had raised concerns about her mental health four days after she had made a formal complaint. The resident disputed the landlord’s findings that there was no evidence of the reported air and dust issues. She was also unhappy the landlord had not regarded photos and videos she had provided as evidence.
  11. The landlord visited the property on 4 August 2022 and determined there was no evidence of poor air quality or excessive dust. The landlord confirmed the recently installed extractor fans were both in good working order and the property was in a habitable condition.
  12. The landlord provided a stage two (final) complaint response on 11 August 2022, advising it had found no evidence of fragments, excessive dust or poor air quality following it’s investigations and visits to the property. The landlord said its referral to the community mental health team was made because the landlord had genuine concerns about the resident and it had seemed appropriate at the time. The landlord advised it had a duty to make referrals where there are concerns. The complaint would not be upheld because the landlord had investigated the reported issues and appropriate follow-up action had been taken. The landlord recommended the resident continue to liaise with her GP regarding her health issues.
  13. The resident contacted the Ombudsman on 14 December 2022 because she was unhappy with the landlord’s final complaint response. The resident explained she was still experiencing air quality and dust issues in the property and this was having a negative physical and emotional effect on her quality of life. As a resolution the resident wanted the extractor fan to be properly installed in order to prevent fine particle matter being generated and ingested. The resident also wanted the landlord to get rid of the gritty dust in the property and to replace the resident’s laminate flooring.

Scope of investigation

  1. The resident stated in her complaint that she has experienced a number of adverse physical and mental effects, including cuts and scratches, anxiety, headaches and deep chest pains as a result of the particles in the air of her property. The Service does not doubt the resident’s comments about the impact on her health. 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 Services’ 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.

Assessment and findings

  1. When investigating a complaint, the Ombudsman applies its Dispute Resolution 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:
    1. Be fair – treat people fairly and follow fair processes;
    2. put things right, and;
    3. learn from outcomes.
  2. 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’.

Policies and Procedures

  1. The landlord’s Tenancy Conditions policy states the landlord is responsible for repairs to the structure and exterior of the property and the landlord has to keep the installations in the property for gas, electricity and water supplies, heating and hot water, in good repair and working order. The landlord is also responsible for drains, basins, sinks, baths and toilets.
  2. The landlord’s Repairs policy states it is responsible for repairs to the structure and exterior of tenants’ homes and has to keep the installations in the property for gas, electricity, water supplies, heating and hot water, in good repair and working order.
  3. In the landlord’s Corporate Complaints policy, a complaint is defined as an expression of dissatisfaction with the landlord, however expressed, whether justified or not or an expression of dissatisfaction about the landlord’s service (whether that service was provided directly by the landlord or by a contractor or partner) that requires a response. The policy states the landlord will aim to provide a stage one response in 20 working days and a stage two response within 25 working days. This will be the landlord’s final response to the complaint.

 

The landlord’s handling of the extractor fan repair

  1. The landlord’s records indicate the extractor fan was checked in June 2021 and no faults had been found. On 2 July 2021 an order was raised to install a new passive vent in the bathroom, which was missing. It is not clear from the landlord’s records if these works were completed at the time. The Ombudsman would have expected the landlord to have confirmed this, given the resident’s concerns.
  2. On 14 February 2022 the landlord raised a repair to inspect the bathroom extractor fan, loft vent and to check if there was any debris coming in from the loft. This was completed on 22 March 2022. The landlord has not provided any record of the contractor’s feedback from that visit. The resident heard nothing further from the landlord on this matter and chased a response via email on 7 April 2022.
  3. The landlord responded on 4 May 2022 to confirm that the contractor that inspected the extractor fan had reported that ‘the fan was working but that it was not as efficient as it should be’. The landlord noted that the particular fan was no longer being manufactured and so two separate fans would be needed with a vent running through the loft space. The landlord confirmed that it would request a quote for the work. The repairs record show that the landlord raised a job for replacement extractor fans on 13 June 2022 and this was completed on 8 July 2022.
  4. The Ombudsman has not been provided with the landlord’s repairs response timescales but in line with industry best practice, we would expect a reasonable timeframe of around one month to complete repairs or additional works. The landlord’s records show the resident had contacted the landlord for updates on the extractor fan works prior to making a complaint. It is not clear why there was a gap of over three months to raise the additional works to replace the extractor fans, after they had been checked in March 2022. The landlord failed to replace the extractor fan for one that was working ‘as it should be’ within a reasonable amount of time. This delay would have caused additional inconvenience and distress to the resident. The landlord failed to acknowledge this failure in its complaint responses and did not make any attempts to put this right.
  5. The Ombudsman has considered the inconvenience and frustrations caused to the resident as a result of the landlord’s delay with taking action on the additional required works, in line with the Ombudsman’s remedies guidance (published on our website) which sets out our service’s approach to compensation. In acknowledgement of the service failure in completing the required works in a timely manner, the landlord should pay the resident £100 in compensation. In line with our remedies guidance, the Ombudsman awards up to £100 in compensation for service failure that caused delays and some inconvenience to the resident. The compensation recognises the additional time and trouble experienced by the resident as a result of the delay with completing the repair, which had not been previously acknowledged by the landlord.

The landlord’s handling of reported fragments and dust particles in the property

  1. The resident’s concerns and anxiety about the reported fragments and excess dust 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.
  2. The landlord carried out further investigations between January to August 2022 after the resident got back in touch with it to report continuing dust and particle issues. The landlord attended the property in order to obtain evidence of the reported air issues first hand. Given the nature of the reported issues, it is understandable why the landlord had required further investigation. The landlord had spoken to the resident about exploring other possibilities into what may be causing the health and physical symptoms she was experiencing, by discussing the matter with her GP. When considering the type of symptoms, the resident had reported, it was reasonable for the landlord to make this suggestion to ensure all possible causes were being looked into.
  3. The Ombudsman acknowledges the resident’s concern about the timing of the landlord’s referral to the Community Mental Health Team (CMHT). However, where a landlord identifies health and wellbeing concerns about a resident, it is appropriate for it to consider making a referral. This is in line with the landlord’s duty of care to its residents. The available evidence does not show that this referral was made maliciously in response to the resident’s complaint. The landlord’s stage two complaint response noted the resident’s concern about the referral, but it did not properly consider if its decision to refer had been made appropriately in line with its safeguarding policy. This is a shortfall in complaint handling. The landlord has therefore been ordered to reconsider this part of the resident’s complaint.
  4. The Ombudsman acknowledges that the landlord visited the property in February 2022, March 2022, April 2022, June 2022, July 2022 and August 2022 to assess the extractor fan and the air in the resident’s home and to complete repairs. This included testing the artex coating in the kitchen ceiling and later sealing areas where chrysotile was exposed. The Public Health England guidance on asbestos confirms that chrysotile (also known as serpentine asbestos) is the most commonly used type of asbestos and is far less hazardous to health than the amphibole type.
  5. Once these visits had not resolved the resident’s concerns about the air quality, it was reasonable for the landlord to then refer the matter to a specialist. The Ombudsman appreciates that the landlord may not have a member of staff skilled in air quality, but it could have identified a suitably qualified external candidate to complete the assessment. Ultimately, if there is an issue with the air quality that is not linked to mould, this is only likely to be identified through appropriate air quality testing. Ultimately, the resident’s complaint about indoor air quality should have been treated as such. In order for the landlord to be confident that there is no issue with the air quality in the resident’s property, it should arrange for the air to be tested. It is not sufficient for the landlord’s previous inspections to have been purely visual and not attended by an air quality specialist.
  6. The landlord’s failure to offer this option as a final attempt to resolve the resident’s concerns was a shortfall in its handling of this matter. The resident understandably took the landlord’s response as suggesting that it was not taking her concerns seriously, as it had no scientific basis on which to counter the resident’s reports.
  7. The landlord’s decision to not carry out air tests in the property is reasonable. The Ombudsman would not expect the landlord to conduct air tests for unknown substances in the property when there was no evidence of what substance the air in the property should be tested for. The landlord’s investigations did not identify any evidence of the reported dust and particle issues or any other issues that may have posed a health risk to the resident, such as damp or mould growth. In this instance it would not have been reasonable for the landlord to use its resources to carry out a range of air tests because it did not identify any health risks at the property.
  8. The resident has said she had to dispose of personal items such as clothing and furniture etc as a result of contamination from the particles in the air. She has also said she had to replace the flooring. The landlord would only be expected to pay for items which were damaged as a direct result of negligence by the landlord or its contractors. In this case there is no evidence that the landlord caused any particles to enter the resident’s property and therefore it was not responsible for the damage these particles may have caused.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme (the Scheme), there was service failure by the landlord in respect to its handling of reported fragments and dust particles in the property.
  2. In accordance with paragraph 52 of the Scheme, there was service failure by the landlord in respect to it’s handling of the extractor fan repair.
  3. In accordance with paragraph 52 of the Scheme, there was service failure by the landlord in respect to its handling of the associated complaint.

Orders and recommendations

Orders

  1. The landlord is to pay the resident £150 in compensation. This is comprised of:
    1. £100 for the delay in response to and actioning the extractor fan replacement.
    2. £50 for the complaint handling shortfall.
  2. The compensation awarded by this Service should be treated separately from any existing financial arrangements between the landlord and resident and should not be offset against any rent arrears.
  3. The landlord is to arrange an indoor air quality assessment at the property by a suitably qualified professional (such as a member of the Institute of Air Quality Management). The landlord should consider testing over at least a 24-hour period.
  4. The landlord is to investigate whether its referral to the Community Mental Health Team in June 2022 was made appropriately in line with its safeguarding policy and procedures. Provide the resident with a stage two response in relation to this issue.
  5. The landlord is to arrange an appointment to correct an issue with cracking to an area of the kitchen ceiling (noted in its complaint response dated 11 August 2022).
  6. The landlord is to confirm compliance with the above orders within four weeks of the date of this decision.

Recommendations

  1. The Ombudsman recommends that the landlord amend its Corporate Complaints Policy, so that it’s complaint response timescales are in line with the timescales set out in the Ombudsman’s Complaint Handling Code.