Royal Borough of Kensington and Chelsea (202209304)

REPORT

COMPLAINT 202209304

Royal Borough of Kensington and Chelsea

3 February 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 concerns how the landlord handled the resident’s reports of strong odours coming into her property from the property below and the landlord’s decision to decline her request to be temporarily rehoused.

Background

2. The resident is a secure tenant of the landlord, which is a local authority. The property is a flat.
3. On 6 June 2022, the resident called the landlord and informed it that she was experiencing strong sewage smells from the basement flat below her property. The landlord raised a work order for a plumber to investigate. A plumber visited on 16 June 2022. Their notes state that they flushed through all the facilities in the flat and examined the stack pipe, but did not detect any odours.
4. The resident wrote to the landlord on 18 June 2022 and requested to raise a formal complaint into the matter. The resident described the elements of the complaint as:
   1. She had experienced strong odours from the basement flat entering her property for the last two weeks, which has had an effect on her existing medical conditions.
   2. The smells remained despite the visit from the plumber to the basement flat.
   3. She was dissatisfied with the level of service and support she had received from the landlord when she informed them of the problems she was experiencing.
5. Following receipt of the complaint, the resident and landlord discussed the issues the resident wanted to be investigated. During these discussions the resident requested an air purifier for her property and also requested to be temporarily rehoused (decanted) while the smell in her property remained. In its complaint responses, the landlord:
   1. Recognised the distress, anxiety and frustration the issue had caused the resident.
   2. Described the visits made to the basement flat and the resident’s property since the issue was reported on 6 June 2022. It explained that following the plumber’s visit; a staff member visited her property on 24 June 2022 to assess her request to be decanted and a supervisor attended on 28 June 2022 to inspect the basement flat and take damp readings. The supervisor found the damp readings to be within acceptable levels and recommended work to improve the ventilation of the basement flat, to clean the flat’s courtyard and to undertake an air quality test of the resident’s property. The landlord confirmed that it had raised work orders to undertake all of these recommendations.
   3. Explained that while a “significant damp and musty smell” had been found in the basement which flat, which had been vacant for several years, that none of the operatives who had visited the flat had smelled any gas or sewage odours, and that none of the operatives who had visited the resident’s property had detected any smells. The landlord also explained that while the walls in the basement flat had found to be dry, there was evidence of historical leaks and staining to the walls had been observed.
   4. Noted that it had provided an air purifier to the resident and that the resident had highlighted her concerns that the purifier had detected gas in her property and had requested for an industrial air purifier to be provided. The landlord then informed the resident that the air quality test undertaken in her flat had found the quality to be acceptable. The landlord also informed the resident that the carbon monoxide detector in her property had found no evidence of dangerous gas affecting the property. It had therefore declined the resident’s request for an industrial air purifier. The landlord provided the resident with copies of the air quality test report and the gas safety record for the property.
6. Following the conclusion of the complaint process, the landlord and resident had further discussions about her request to be temporarily rehoused. The landlord declined the request in light of the findings of the air quality test.
7. In referring the case to this Service, the resident described the outstanding issues of the complaint as the level of service she received from the landlord and that the issue of odours from the basement flat still remained. As a resolution to the complaint, the resident requested that the landlord resolve the issue and that she was temporarily rehoused while this work was completed.

Assessment and findings

Relevant policies and procedures

8. Section 79 of the Environmental Protection Act 1990 concerns statutory nuisance and inspections. Section 79(1)(c) of the act states that “fumes or gases emitted from premises so as to be prejudicial to health or a nuisance” constitutes statutory nuisance.
9. Section 3.1 of the tenancy agreement relates to repair and maintenance. This, in part, states that “the landlord will keep in repair the structure, exterior of the building, common parts, and all installations for the supply of water, gas, electricity, heating and sanitation”.
10. The landlord categorises its repair types as “Critical/Emergency” (attend within four or 24 hours), “Urgent” (attend within five days) and “Routine” (attend within 20 days).  The landlord defines an emergency repair as a repair that presents “serious safety hazard, the immediate risk of more extensive damage to a property or the potential to cause injury”. As examples of when a repair would be considered urgent, the landlord suggests a minor leak that can be contained, a faulty extractor fan in a room without windows or a faulty shower. All other repair types would be considered by the landlord as routine.
11. The landlord’s decant policy sets out the circumstances where it will temporality rehouse a tenant. The policy states that “An emergency decant is where an unexpected event has caused a property to become uninhabitable, e.g. a severe leak or fire. Temporary decants are where essential repairs cannot be carried out with the occupants living in their property, we then will seek internal approval to decant them temporarily. Once a household has been approved for decant, we will identify a suitable decant property and arrange any necessary removals”.
12. The policy describes the criteria the landlord will use when making the decision to decant a tenant. This states, in part, that the landlord will consider the following:
    1. “Has the property been assessed against the Housing Health and Safety Rating System (HHSRS) as to whether the risks identified can be reduced to as low as reasonably practicable?
    2. Will the property be uninhabitable whilst the work is being carried out?
    3. Is the tenant vulnerable or do they have a mobility issue that would make it difficult or impossible for them to remain in their home whilst the work is being carried out?”

Scope of investigation

13. In raising the complaint with the landlord, and in her correspondence with this Service, the resident has described her existing medical conditions and the adverse effect on these conditions that the smells from the basement flat had caused. The Ombudsman does not doubt the resident’s comments. However, it is beyond the remit of this Service to make a determination on whether there was a direct link between the landlord’s actions and the resident’s health. Whilst we cannot consider the effect on health, consideration has been given to any general distress and inconvenience which the resident experienced as a result of any errors by the landlord.

How the landlord handled the resident’s reports of strong odours coming into her property from the property below and its decision to decline her request to be temporarily rehoused

14. Once the resident had informed the landlord of her concerns relating to odours entering her property from the basement flat below and the problems it was causing, the landlord had a duty to respond to the matter in line with its obligations set out in the tenancy agreement, its published policies and procedures, and to ensure that it was in compliance with the relevant legislation.
15. Overall, the landlord’s acted appropriately to the resident’s initial reports. It arranged for a plumber to inspect the basement flat when the matter was first reported to it and arranged for a further inspection by a supervisor, who recommended work to improve the basement flat’s ventilation, to clean the flat’s courtyard and to arrange for an air quality test of the resident’s property. These initial appointments were all raised as routine repairs and attend within the published timescale. It was reasonable for the landlord to consider these routine based on the description given by the resident as this issue would not meet the definition of an emergency repair from its repairs policy detailed above.
16. There is a clear dispute as to what type of odours were detected in the basement flat and whether any odours were detected in the resident’s property. The resident has challenged the landlord’s position that the odours from the basement were a musty and damp smell rather than a sewage and gassy smell, and that the odours from the basement flat could not be detected in her property. The resident also noted that the supervisor who inspected the basement flat on 28 June 2022 was suffering from hay fever at the time and therefore would not be able properly detect odours. The landlord has maintained its position as all the operatives and staff members who had visited the resident’s property and basement flat, not just the supervisor, had reached the same conclusion.
17. It was therefore appropriate, in light of this dispute, for the landlord to arrange for a specialist contractor to undertake an air quality test of the resident’s property. The test was conducted on 25 July 2022 and a copy of the report was sent to the landlord on 1 August 2022. It was also provided to the resident as part of the stage two complaint response sent on 2 August 2022. This found that the quality of the air in the property to be within acceptable levels. The landlord also provided information from the CO2 monitor in the property to assure her that no dangerous gasses had been detected.
18. Therefore, there is no evidence of service failure in how the landlord has responded to the matter. When first informed of the issue of odours, the landlord arranged for a plumber to visit within its published timescale for a routine repair. Following a further inspection by a supervisor, follow-on work was then raised within this timescale. In response to the resident’s concerns about dangerous gasses from the basement flat entering her property, the landlord arranged for an air quality service and also provided the resident with information from the property’s CO2 monitor and gas safety certificate. The information provided did not show any evidence that there were dangerous gasses or any other issues with the quality of air in the property. It was reasonable for the landlord to rely in the opinion of appropriately qualified staff members and specialist contractors that the condition of the air in the resident’s property did not present a risk to her.
19. Moreover, in light of the findings detailed above, it was reasonable for the landlord to decline the resident’s request to be temporarily rehoused. This is because the thresholds set out in the landlord’s decant policy had not been met as no evidence of health risks from the condition of the property had been identified and the work to the resident’s property and the basement flat would not have made the property uninhabitable. As previously stated, it is not within the remit of this Service to consider the resident’s existing medical condition and any effect on these that the odours had caused.

Determination

20. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of how it handled the resident’s reports of strong odours coming into her property from the property below and its decision to decline her request to be temporarily rehoused.