Derwent Community Housing Association Limited (202010496)

REPORT

COMPLAINT 202010496

Derwent Community Housing Association Limited

8 December 2021

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:
1. Response to the resident’s reports of unpleasant smells at the property.
2. Complaints handling.

Background and summary of events

The resident is an assured tenant of a property owned and managed by the landlord which is a housing association. The property is a one bedroom second floor flat.
The landlord’s repair policy says that the target time for completing emergency repairs is within 24 hours and routine repairs within 28 working days.
The resident’s tenancy agreement says that the landlord must maintain the structure of the premises and building including drains. The landlord must also maintain installations provided for water heating and sanitation, including basins, sinks, baths, toilets, flushing systems and waste pipes.
The landlord has a two stage complaints process. At stage two the landlord shall send the resident the outcome letter within 10 working days, unless the complaint is extended.
The resident made various reports to the landlord during 2018 concerning a bad smell in the property.
On 22 September 2019 and 24 September 2019, the resident sent emails to the landlord reporting a smell coming from the bathroom at the property. The landlord attended the property on 3 October 2019. On 6 October 2019 the landlord unblocked the drains and on 10 October 2019 repaired the bathroom extractor fan.
The landlord replaced the bath at the property on 4 February 2020.
On 2 September 2020 the resident telephoned the landlord to report a bad smell of sewage in the property. The landlord arranged an inspection appointment for 10 September 2020, in the meantime the resident made a further report about the smell to the landlord on 8 September 2020.
On 10 September 2020 the landlord visited the property. During the visit the landlord jet flushed the drains and discovered that the toilet pan at the property leaked when flushed. The landlord made an appointment for the toilet to be repaired on 5 October 2020.
On 23 September 2020 the resident made a report via the landlord’s website that there was a smell coming from the toilet at the property and she felt that her and her child’s health were at risk. The resident sent a further email about the smell on 24 September 2020.
The landlord attended the property on 5 October 2020 and repaired the toilet. The landlord’s repair notes from this visit say “job completed No smells & definitely no leaks in bathroom or kitchen & there was (sic) no smells in the flat at all. Customer told me it was intermittent & could be any part of any day.”
On 15 October 2020 the resident made a further report by telephone of a “toxic smell” at the property and asked to speak to her housing officer. On 16 October 2020 the resident’s housing officer spoke to the resident who informed her that the smell came and went. The housing officer informed the landlord’s repairs team of this.
The resident made a further report about the smell by telephone to the landlord on 17 December 2020 and the landlord arranged to inspect the property on 29 January 2021.
On 18 December 2020 the resident asked that her housing officer call her. The housing officer tried unsuccessfully to speak to the resident on 21 December 2020.
On 23 December 2020, following a further telephone report of a smell at the property, the resident was advised by the landlord to contact the local authority’s environmental health team.
On 5 January 2021, following contact from this Service, the landlord telephoned the resident to discuss her making a complaint about its response to her reports of a bad smell at the property. The resident submitted her complaint on 8 January 2021.
On 13 January 2021 the landlord offered the resident an alternative property, which she declined.
The landlord issued its stage one response to the resident’s complaint on 25 January 2021. In its complaint response the landlord:
1. Did not uphold the resident’s complaint about the landlord’s response to the resident’s reports of a smell at the property.
2. Set out the details and dates of the resident’s reports concerning the smell and the actions taken by the landlord in response to those reports.
3. Confirmed that the appointment booked for 29 January 2021 to inspect the property would go ahead.
4. Said that it had enquired whether any device for measuring and recording the smell was available. However, one was not.
5. Asked that the resident keep a diary to record the time, date and duration of occurrences of the smell so that the landlord could determine if there was a pattern. This would allow the matter to be properly investigated, especially if the smell appeared at a specific date or time.
6. Repeated its advice that she might wish to contact the environmental health department of the local authority concerning the smell.
On 25 January 2021 the resident sent an email to the landlord again asking for it to fix the smell and on 26 January 2021 asked for the complaint to be escalated to stage two of the landlord’s complaints process.
On 27 January 2021 the resident’s project worker at an advice centre sent an email to the landlord on her behalf, asking it to check the mains sewer pipe and other pipework behind the wall at the property and to check all drainage outlets for possible blockages or build up of debris. The project worker also asked the landlord to check the neighbouring flat for possible issues with the un-identified smells.
The landlord acknowledged the resident’s request to escalate the complaint on 28 January 2021.
On 29 January 2021 the landlord visited the property and noted no trace of the smell. The landlord agreed to open up the pipe boxing containing the soil stack.
On 9 February 2021 the landlord cut into the side of the pipe boxing in order to inspect the soil pipe. The landlord’s repair notes say that there were no signs of leaks and no trace of any odours.
The landlord spoke to the residents in other flats in the block and the landlord’s notes say that they confirmed that they had no problem with smells.
On 22 February 2021 the landlord visited the property, and the resident reported a hole in the pipe boxing where the gas supply pipe entered the property. The landlord’s notes say, “The hole is approx. twice the size of the pipe but she says that is where the smell comes from.” The landlord raised a job to seal the hole around the pipe and on 25 February 2021 provided the resident with direct telephone numbers of two members of its staff to contact if she noticed the smell.
On 2 March 2021 the resident sent the landlord an email saying that the extractor fan in the bathroom at the property was not working. The resident said that the smell had been present for at least five hours that day. The landlord sent an email to the resident the following day asking her to call one of the members of staff whose numbers she had when the smell was present, so they could attend the property quickly if they were able in order to experience the smell. The landlord confirmed it had raised a job for the extractor fan to be looked at.
On 3 March 2021 a member of the landlord’s staff resident’s sent an internal email saying that, neither she, nor another member of staff, could recall noticing a toxic smell in the block when completing scheme inspections.
The landlord made arrangements to inspect the soil stack in the roof space, the access to which was in another flat in the block. The earliest appointment that could be arranged with the relevant tenant was 19 March 2021. The landlord inspected the soil pipe in the loft space on 19 March 2021 and no problems were found.
The landlord issued its stage two response to the complaint on 22 March 2021. In it stage two complaint response the landlord said that:
1. It apologised for the delay in completing its investigations.
2. It had carried out drain inspections and cleared the drains twice and no blockages had been found.
3. It had carried out an inspection of the soil pipe and duct by cutting an access hole in the side of the ducting. This was found to be clean and dry with no sign of leakage on the pipe.
4. It had carried out an inspection of the soil stack in the communal roof space. This had been found to be vented to the atmosphere via a roof vent tile meaning no vacuum would form in the pipe, so this would not cause any smells.
5. It had contacted other residents of the block and there were no reports of any similar odour problems.
6. None of its members of staff who had visited the property had noticed a smell.
7. It had provided contact details of members of staff for the resident to call when the smell occurred so they could attend if available.
8. When she had recently emailed to report the smell earlier in the day it had been unable to attend to observe the smell as it received the information by email at the end of the day.
9. It apologised for the stressful situation the smells were causing the resident and her family.
10. The complaint was not upheld because it had taken all reasonable steps to try and investigate the issue, with no evidence of the issue or fault being found.
11. The resident should keep the landlord informed if she continued to have the issue so it would be able to witness the odour first hand which might give it an indication of the cause.
12. It recommended that that the resident contact the housing standards department or environmental health department at the local authority to investigate.
The landlord’s stage two complaint response was its final response to the resident’s complaint, confirming that the complaint had exhausted its internal complaints process.
On 26 March 2021 the resident reported the presence of the smell at the property to the landlord. A member of the landlord’s staff attended the same day. The landlord’s notes say that the resident was adamant that the smell was there but it was unable to smell anything unusual. Assessment and findings

The landlord’s response to the resident’s reports of unpleasant smells at the property

It is evident that this situation has been distressing to the resident. It may help to firstly explain that the Ombudsman’s role is not to establish whether there is an unpleasant smell at the property or not. Rather, the Ombudsman’s role is to establish whether the landlord’s response to the resident’s reports was in line with its legal and policy obligations and whether its complaint response was fair in all the circumstances of the case.
In response to the resident’s reports of an unpleasant smell at the property the landlord:
1. Inspected the property on multiple occasions.
2. Cleaned the drains at the property twice.
3. Repaired the extractor fan at the property.
4. Repaired the leaking toilet pan at the property.
5. Offered the resident an alternative property.
6. Asked that the resident keep a diary concerning the occurrences of the smell.
7. Suggested that the resident report the issue to the local authority’s environmental health team.
8. Inspected the soil pipe at the building.
9. Made enquiries of other residents of the building about the smell.
10. Sealed the hole around the gas supply pipe.
11. Inspected the soil stack in the roof space in the building.
12. Provided contact details of members of staff for the resident to call when the smell occurred so they could attend if available.
The landlord’s obligation under the tenancy agreement and its repairs policy (see paragraphs 3 and 4 above) is to carry out repairs and, as set out in the previous paragraph, following inspection by members of its staff and its contractors, it carried out any repairs identified.
As set out in paragraph 34 the landlord carried out a number of investigations to establish whether there was a smell and what its cause might be. However, despite these investigations, no smell was identified. It was reasonable for the landlord to rely on the opinion of qualified staff inspecting the property and, having carried out extensive investigative works, and as no smell was identified, it was reasonable for the landlord not to offer to carry out any further works to the property.
The landlord also acted reasonably in offering the resident an alternative property and, having not been able to detect a smell, in advising her to contact the local authority’s environmental health team concerning the smell.
During the course of this investigation the landlord has informed this Service that it has ensured that the resident “has clear routes to continue to report the fault itself, should this return.” The landlord has provided the resident with the direct contact details of members of the landlord’s staff, so an inspection can be arranged quickly. This is reasonable action by the landlord, demonstrating a resolution focused approach.
For the reasons set out in paragraphs 34 to 38 above the landlord acted reasonably in its consideration of the resident’s reports about the unpleasant smell.

The landlord’s complaints handling

The landlord’s stage two response to the complaint was sent to the resident 39 working days after she asked to escalate her complaint and 29 working days after the 10 working day timescale set out in the landlord’s complaints process (see paragraph 5 above). Whilst the landlord apologised for this delay in its final response to the complaint and was in contact with the resident during its stage two investigation the 29 working day delay in responding was inappropriate and represents a service failure by the landlord.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the complaint about the. landlord’s response to the resident’s reports of unpleasant smells at the property.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was a service failure by the landlord in respect of the complaint about its complaints handling.

Reasons

The landlord acted reasonably in carrying out investigations into the resident’s reports of an unpleasant smell at the property and in carrying out repairs discovered during those investigations.
The landlord’s complaints handling demonstrated inappropriate delay.

Order

The landlord is ordered within four weeks of the date of the determination to pay the resident £50 for the distress and inconvenience incurred by the resident as a result of the landlord’s complaint handling failings.