Cornwall Housing Limited (202206342)

REPORT

COMPLAINT 202206342

Cornwall Housing Limited

22 November 2022

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 response to the resident’s report of smoke nuisance from his neighbour’s property.

Background

2. The resident is a tenant of the landlord and lives in a house. The landlord is a local authority.
3. On 4 January 2022, the resident contacted the landlord. The landlord noted that the resident said that he was “unable to leave his window open due to all the black smoke coming into his property from the neighbours coal fire. It is also now coming through the vents leaving his walls & flooring black.” The neighbour is also a tenant of the landlord.
4. In March 2022, the resident raised a formal complaint to the landlord concerning its handling of the matter. The landlord noted that the resident was dissatisfied because he had had not received a call back from his housing officer regarding his concerns and wanted the matter looking into.
5. The landlord said that a “full service” of the neighbour’s fire was undertaken on 16 March 2022. On 29 March 2002, the landlord undertook an inspection of the neighbour’s fire in light of the resident’s concerns. The corresponding repair record noted “open fire passed tests – correct fuels used. Atmospheric wind conditions sweeping smoke down into [the resident’s property] when windows open”.
6. In its final complaint response, the landlord said that a member of its tenant’s panel visited the resident on 14 June 2022, and discussed the issues which he was experiencing. The landlord said it was unable to determine the resident’s complaint as it was unable to say for certain what the neighbour was burning in his open fire. Going forward, it said it would carry out another inspection of the neighbour’s chimney and flue, write to the neighbour again to reiterate the correct type of fuel to burn, and investigate any previous complaints about the issue from other neighbours. The landlord confirmed that its complaints process had been completed and included details on which the resident could contact this Service, if he remained dissatisfied.
7. Following this, the landlord’s records show that it had a call with the resident in discussion of its final response. It noted that the resident had said that when the landlord had visited him with a member of its tenant’s panel in June, he was told that the smoke issue would present as anti-social behaviour (ASB) but “nothing [had] changed” since then. It said that the resident believed that the neighbour was lighting the fire to deliberately antagonise people. The landlord also noted that it agreed to paint the resident’s walls and ceilings and would let him know a date when this would be completed.
8. In the resident’s complaint to this Service, he was dissatisfied with the follow-on actions proposed by the landlord in its final response, as he believed that they would not be enough to resolve the situation. He said that the ongoing situation prevented him from opening his windows, as a means to allow fresh air to enter his home and to prevent condensation, in addition to covering his furnishings in soot. To resolve the complaint, the resident said he wanted the landlord to “condemn” his neighbour’s fire. In saying this, it is understood that he wanted the landlord to remove or block-up the fire.

Assessment and findings

The law and the landlord’s policies

9. Part 3 of the Environmental Protection Act 1990 (EPA 1990) obligates local authorities to take reasonable steps to investigate any complaints of statutory nuisance that it receives. Subject to some exemptions, the Clean Air Act 1993 (CAA 1993) states that “dark smoke shall not be emitted from a chimney of any building, and if, on any day, dark smoke is so emitted, the occupier of the building shall be guilty of an offence.”
10. The landlord has an ASB policy. It advises that, some issues concerning ASB should be reported to Environmental Health, whom it says it works closely with. It states that where such issues reported to it “occur on an estate or at properties managed or owned by [itself]”, it will pass these issues on.
11. The landlord’s website contains published guidance for its tenants, about how it deals with reports of nuisance and ASB. It outlines that in resolving ASB, the landlord will speak to all parties and offer advice and support. It sets out that where appropriate, it may refer cases to its neighbourhood enforcement team who will investigate and gather evidence via methods such as witness statements, nuisance diaries and information from partner agencies. It also outlines that when a tenant is asked to keep a diary of incidents, it is usual practice for it to request these for two weeks in order to assess the type and frequency of ASB being reported.

Scope of investigation

12. In the resident’s complaint to this Service, he mentioned that landlord agreed to paint the smoke-stained area of his ceiling but said that it has not carried out the work. Although the evidence indicates that landlord agreed to this, the earliest evidence of it doing so was following its final response. It should be noted that there is no obligation on the landlord to agree to undertaking decorating work at the resident’s home, when the need has not arisen as a result of the landlord’s actions or inactions when undertaking repair work. However, the landlord would still be expected to complete any works it has agreed to undertake, to a professional standard and within a reasonable timeframe. Nonetheless, this repair request did not form part of the resident’s initial complaint or escalation request, thus the landlord has not had the opportunity to respond to this aspect at both stages of its complaints process. Therefore, this issue has not been considered in this investigation, although a recommendation has been made in light of this.

The landlord’s handling of smoke nuisance

13. In this case, there remains a dispute between the resident and the landlord in relation to whether the landlord responded appropriately to his reports of smoke nuisance. The role of the Ombudsman is not to establish whether the smoke ingress the resident was experiencing amounted to ASB or a statutory nuisance. Our role is to establish whether the landlord’s response to the resident’s concerns was in line with its policy and legal obligations, and whether its response was fair in all the circumstances of the case.
14. In this case, it was evident that the landlord predominantly treated the situation as a repair issue. This was somewhat reasonable, as the landlord would need to consider if any repair issues contributed to the situation, in order for it to satisfy itself that its repair obligations were being met. Accordingly, the landlord appropriately undertook an assessment of the neighbour’s fire in March 2022. It advised the resident that it had determined that the neighbour’s fire was working correctly, which accorded with the evidence seen in this investigation. There was, however, some delay in the landlord taking this action given that the resident first reported the issue in early January. This appears to be a result of its poor communication, as it appropriately acknowledged that it had failed to call the resident back following his attempts to contact following his initial reports. It also appropriately apologised for the trouble and inconvenience the resident would understandably have been put to as a result.
15. In addition to accepting where its communication had been poor, it would have good practice for the landlord to clarify if this had caused a delay in inspecting the neighbours fire, and any wider implications that this had had on its handling of the resident’s case. For example, as the resident reported the issue with the open fire in early January, it is reasonable to assess that the neighbour may have been using the fire less by the time the landlord assessed this in light of the resident specific concerns in late March, due to milder weather conditions. Therefore, the landlord failed to take the opportunity to gather evidence at an earlier time when the impact was likely to have been more significant on the resident.
16. Throughout the resident’s complaint, he described ways in which the smoke interfered with the use and enjoyment of his home. Thus, it was apparent that he believed that the smoke was an ongoing cause of nuisance to him. Considering this, the landlord should have considered to what extent, if any, the smoke or fumes from the neighbour’s fire may have been causing a statutory nuisance, regardless of whether this resulted from a repair issue or not. The evidence does not show that the landlord sufficiently considered this. The EPA 1990 expects local authorities to take reasonable steps to investigate any complaints of statutory nuisance that it receives. Therefore, the landlord should have additionally managed the resident’s case alongside its ASB procedure, to ensure this particular obligation was being met and if necessary for his case to be referred to the local environmental health team. The evidence does not show that the landlord did this in a meaningful way.
17. ASB case management is a crucial part of a landlord’s service delivery. Effective use of its ASB procedure would have enabled the landlord to robustly investigate the resident’s concerns. Though it has demonstrated that it took some appropriate actions such as speaking with the neighbour in February 2022, and reminding him about appropriate use of the fire, it particularly failed in assessing the impact the situation was having on the resident within his home. The evidence shows that the landlord did not visit the resident in his home, with a member of its tenant panel, until its stage two investigations in June 2022 (five months after the resident initially reported the issue). This was unreasonable.
18. The landlord has also not demonstrated that it took steps to monitor incidents of smoke nuisance, both in terms of the impact this had on the resident and in regard to his repeated assertions that the neighbour was burning inappropriate fuel. The landlord could have utilised various methods to investigate this, such as issuing the resident with diary sheets and creating an action plan or requesting video evidence. Therefore, the resident was denied the opportunity to be given sufficient feedback on the type of nuisance he was reporting. Without assessing the frequency, duration, impact, and level of the smoke disturbance, the landlord was unable to determine at an earlier stage if ASB had likely occurred, and if not, what steps it needed to take to manage the resident’s expectations.
19. The task of assessing statutory nuisances is usually delegated to the local environmental health team, but it appears that the landlord failed to engage with this department. It was noteworthy that the landlord noted in its call records, that at one stage, it offered the resident the contact number for this team but noted that he declined to take this. Nonetheless, the landlord should have referred the matter to the environmental health department directly, given that they are both part of the local council, and that its policy clearly sets out that it pass-on issues to this department, which concern properties that it manages or owns. In addition, considering that the resident repeatedly expressed concerns with what the neighbour was burning due to the colour of the smoke being emitted, the landlord should have sought assistance to establish whether there was any breach of the law under the CAA 1993.
20. Overall, the landlord’s failure to meaningfully investigate and engage with the resident’s nuisance concerns meant that he was not given a fair chance to have his complaint reasonably responded to. The landlord has also not demonstrated that it has taken purposeful action to manage the ongoing situation following its final response. To remedy this, orders have been made to the landlord, including an award of compensation that’s in line with The Ombudsman’s Remedies Guidance (published on our website) for instances where the landlord has failed to acknowledge its failings and/or has made no attempt to put things right.

Determination

21. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of the complaint. 

Orders

22. Within four weeks of the date of this report, the landlord is ordered to:
    1. Write to the resident and apologise for the service failures identified in this investigation.
    2. Write to the resident and provide an up-to-date review of his case in light of this investigation, to include a clear action plan for any steps it will take going forward and any expectations it has of the resident in assisting its investigations.
    3. Pay the resident £400 compensation.

Recommendations

23. That the landlord considers contacting the resident and set out its intentions regarding the completion of decorating work to the smoke affected areas of his property. The landlord should register a new complaint regarding this if the resident wishes it to do so.