Bournemouth, Christchurch and Poole Council (202110131)

REPORT

COMPLAINT 202110131

BCP Council

25 April 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:
   1. response to the resident’s report of antisocial behaviour (ASB).
   2. handling of adaptations at the property for the resident’s mobility scooter.
   3. response to the resident’s reports of the smell of smoke in the communal areas of the property.

Jurisdiction

2. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated. After carefully considering all the evidence, it is determined that the following complaint, as set out above, is not within the Ombudsman’s jurisdiction.
   1. The landlord’s response to the resident’s report of ASB.
3. The resident informed the Ombudsman on 25 October 2022 that she had been the target of ASB, in the form of ‘stalking’. While this would undoubtedly be distressing for her, the Ombudsman is unable to investigate the landlord’s response to her reports of stalking. This is because paragraph 42(a) of the Scheme states that this Service may not consider complaints which are made prior to having exhausted a member landlord’s complaints procedure. As it was not evident that this issue was dealt with through the landlord’s internal complaints procedure, this will not be considered within this investigation.
4. The resident may wish to raise a formal complaint with the landlord if she remains dissatisfied with its handling of her reports of stalking and bring this to the Ombudsman if she continues to be dissatisfied once she has received the landlord’s final response to the complaint.

Scope of investigation

5. It should be clarified that the Ombudsman cannot make a determination on any dissatisfaction with the occupational therapist (OT) service, since this service is operated by the local authority and is not directly linked to the local authority’s role as a social landlord. This is in accordance with paragraph 41(d) of the Scheme which states that the Ombudsman cannot consider complaints which concern matters in respect of Local Housing Authorities in England which do not relate to their provision or management of social housing. Complaints about the OT service may be brought to the Local Government and Social Care Ombudsman once a complaint has been made through the local authority’s internal complaints procedure about this issue.
6. This investigation will therefore not consider the actions of the OT service but will consider whether the landlord appropriately acted on any recommendations from the OT service.
7. The resident has said that the smell of cigarette smoke in the property negatively impacted her health. The Ombudsman does not doubt the resident’s comments but it is outside of the remit of the Ombudsman to determine whether or not there was a direct effect to the resident’s health from the smell of smoke. The Ombudsman will, however, consider whether or not the landlord took reasonable steps in response to the resident’s reports about her health.

Background

8. The resident is a tenant of the landlord, which is a local authority, and occupies a ground floor flat (the property) within a block. The landlord was aware that she had mental and physical vulnerabilities, and a learning disability. After a joint meeting with an OT, the landlord and the resident present on 8 September 2021, it was agreed, alongside other adaptations within the property, that a concrete scooter platform would be installed at the rear of the property with an exterior charging point and locking ring for her mobility scooter. The resident was advised the works may take four to six weeks to commence. Her tenancy subsequently started on 3 November 2021.
9. The resident raised a stage one complaint with the landlord through the Ombudsman on 29 November 2021 in which she expressed dissatisfaction with the adaptations not being complete before she moved in. She was also unhappy with a strong smell of cigarette smoke in the communal hallway which was a health concern for her. When the work was due to commence for the concrete platform, the resident cancelled the work on 6 December 2021 as she was unhappy with the security at the rear of the property. She was concerned that the gate did not lock and there was no external lighting.
10. The landlord’s stage one response on 23 December 2021 explained that it could not justify creating a covered lockable area for her scooter. It asserted that the security measure recommended by the OT, the locking ring, was sufficient. The landlord agreed to install a motion detecting security light, to run from its own energy supply and advised that it had visited the property and detected the smell of smoke in the communal areas. It proposed to meet with the resident to investigate the matter further.
11. The resident escalated her complaint on 27 January 2022, reiterating her security concerns about the use of the external scooter platform. She said that she would have trouble in covering the scooter with a tarpaulin and the communal doors were difficult for her to navigate. The resident repeated her concerns about the smell of smoke and expressed her desire to move to another property.
12. The landlord’s final response on 22 February 2022 reaffirmed its previous complaint response. It confirmed it would install security lighting and would secure the communal gate to enable it to be kept closed, although this would not be locked. The landlord relayed that it had carried out subsequent visits to the property but did not smell smoke on these further visits. It explained that residents were permitted to smoke inside their properties but not in the communal areas; the landlord urged the resident to report this, if she witnessed it occurring.
13. The resident informed the Ombudsman on 30 August 2022 that she continued to be dissatisfied as she wanted a secure covered area for her scooter, and she felt the landlord had not done enough to reduce the ongoing smell of smoke in the communal hallway.

Assessment and findings

The landlord’s handling of adaptations at the property for the resident’s mobility scooter

14. The landlord informed this Service that its policy was to go through the OT service for all adaptation requests for its property, bar a small number of specified minor adaptations. The adaptations agreed for the resident in this case were not covered in this list and therefore in line with the policy, the landlord sought advice from OT before agreeing to the adaptations.
15. It is appropriate for a landlord to consider whether any adaptations it carries out are necessary, appropriate, reasonable and practical, and for its decisions on adaptations to be guided by a suitably qualified OT. It would therefore be reasonable for a landlord to follow any recommendations made by the OT unless it would not be reasonably possible to do so.
16. In this case, the OT recommended that a scooter platform be installed at the rear of the property, with the facility to charge the scooter, and a locking bolt to secure the scooter to. The landlord, therefore, followed the OT’s recommendations and made arrangements to carry out the work. When the resident raised her concerns about security, the landlord reasonably agreed to install a security light and to carry out work to the gate to allow it to be kept closed. These were reasonable responses which demonstrated that it took the resident’s concerns into account.
17. It is noted that, on 12 and 19 January 2022, the landlord tried to arrange a visit, in conjunction with the OT, to assess what else could be done to help the resident. This again demonstrated that the landlord was committed to resolving the issues the resident reported. There was no evidence that a visit was agreed at that time.
18. The landlord, therefore, responded reasonably by following the OT’s recommendations, proposing further works to address the resident’s security concerns, and attempted to meet with her to provide further assistance. However, it is noted that the works were originally scheduled to commence a month after the resident moved in, approximately six weeks later than originally agreed with her.
19. The landlord’s internal records noted that it had been agreed with the resident that her scooter could be kept in the property while the works were outstanding. This was evidently inconvenient for the resident, as she reported, in her complaint escalation on 27 January 2022, that the communal doors into the building were heavy and were “dangerous” for her. The landlord did not acknowledge that its delay in commencing the works led to inconvenience and distress for the resident.
20. While there was a failure by the landlord to commence the works promptly, it cannot be held responsible for any further inconvenience and distress experienced by the resident after 6 December 2021, as she cancelled the works to install the scooter platform. It was understandable that the resident would have concerns about the security and practicality of using the outdoor scooter platform but until the scooter platform was fitted it would not be possible to know how it would work in practice. The resident said she would have difficulty in securing a tarpaulin over the scooter when it was outside, and that she would have difficulty navigating the area as the scooter platform would be surrounded by lawn which would get “boggy”. However, the platform had not yet been installed and the landlord cannot address issues which are yet to arise.
21. The resident’s reasoning for cancelling the installation of the scooter platform was that she was not yet prepared to use it due to her concerns over security and practicality. However, there was no indication that she was required to use it immediately once it was installed. While inconvenient, she may have continued to store her scooter indoors while the landlord addressed the lighting and communal gate repairs.
22. In conclusion, the landlord handled the adaptations at the property for the resident reasonably, apart from a delay of approximately six weeks at the start which caused inconvenience for the resident. Compensation of £250 should be paid to her to recognise that this would have been particularly problematic for her due to her vulnerabilities. This award is made in accordance with the Ombudsman’s remedies guidance, available to view on our website, which provides for awards of compensation between £100 and £600 for failures by the landlord which caused detriment to the resident which may not be permanent.
23. The landlord confirmed to the Ombudsman on 18 January 2023 that the adaptations for the mobility scooter, including the scooter platform, the locking ring and security light were complete. This was after the OT met with the resident on 16 November 2022 and the landlord will be recommended to continue to work with the OT to put in place any other adjustments recommended.

The landlord’s response to the resident’s reports of the smell of smoke in the communal areas of the property

24. The tenancy agreement confirms that smoking is not permitted within the communal areas of the property. The landlord’s smoke-free areas policy and procedure confirms that appropriate signage should be installed in communal areas to advise the area is smoke free. This policy states that the landlord should investigate any reports of smoking in communal areas and warn any perpetrators appropriately, and may escalate the matter to the local authority’s enforcement officer. This policy and procedure confirms, however, that private dwellings are not required to be smoke free.
25. The landlord responded reasonably to the resident’s report of the smell of smoke in the property. In response to the resident’s reports of the smell of smoke in the communal areas of the building, the landlord appropriately visited the block on three occasions and found no evidence of a smell of smoke on the first and third visits, and a smell of smoke on the second visit which was found to be “nothing significant”. Given that there was no evidence, or reports from the resident, that smoking was taking place in the communal areas of the building, it was reasonable that the landlord did not take further action.
26. However, it may have been useful for the landlord to take informal preventative measures, such as writing to residents of the block to be mindful of the escape of smoke from their properties. This may have helped to reduce the evident distress caused to the resident by the smell she reported. There was no evidence of the landlord visiting the building after its final response on 22 February 2022, however, it is noted that the resident made a further report of the issue on 24 April 2022. The landlord will be recommended to engage with the resident to continue to seek a resolution to the matter.

Determination

27. In accordance with paragraph 42(a) of the Housing Ombudsman Scheme, it is determined that the complaint concerning the landlord’s response to the resident’s reports of ASB is outside of the Ombudsman’s jurisdiction.
28. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was:
    1. Service failure by the landlord in its handling of adaptations at the property for the resident’s mobility scooter.
    2. No maladministration in the landlord’s response to the resident’s reports of the smell of smoke in the communal areas of the property.

Orders

29. The landlord should:
    1. Pay the resident £250 compensation for its delay in commencing the installation of the mobility scooter platform.

Recommendations

30. The landlord should:
    1. Continue to engage with the OT service to seek to address the resident’s continuing concerns about the property.
    2. Continue to engage with the resident to address the reported smell of smoke in the communal hallway.