Brent Council (202105638)

REPORT

COMPLAINT 202105638

Brent Council

31 March 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:
   1. The landlord’s handling of the resident’s reports of cooking smells entering her property from a neighbouring property.
   2. The landlord’s complaints handling.

Background

2. The resident has occupied the property, a first-floor flat, since September 2000, under a secure tenancy agreement with the landlord.
3. The resident first noticed strong cooking smells entering her property around the time that a communal vent outside the property was replaced. She noted that the smell was coming through her kitchen cabinets. The landlord’s surveyor inspected and reported that there was no obvious point of entry, and that the vent did not appear to be connected to the flats.
4. The resident made a formal complaint to the landlord, stating that its communication with her had been poor and that the issue had not been resolved. She was frustrated by long wait times when telephoning the landlord and noted that it had initially sent the wrong contractor to investigate the vent. The resident had to chase the report following a visit from a surveyor as she had received no update. She noted that she was asthmatic and raised concerned that carbon monoxide may also be entering the property.
5. At stage 1 the landlord found no service failure and the complaint was not upheld. It stated that there had been several enquiries and responses to the resident’s concerns. The landlord noted that the vent installed the previous October would not have caused the smell, as there was a vent there previously, and stated that the surveyor had concluded that the smell must be entering via the resident’s windows. The landlord stated that it would discuss the resident’s concerns about the delay in answering her calls with the customer service team and offered £10 compensation for the delay in providing the stage 1 response.
6. The resident escalated her complaint, as she felt the complaint had been poorly handled at stage 1. She noted that the response had inaccurately described her complaint, that the landlord did not address the complaint about poor service and a lack of communication, and that it had failed to attach the compensation claim form. The landlord’s final response to the complaint included comments from the surveyor that had carried out the inspection. It explained that the vent had been replaced following a Fire Risk Assessment (FRA) and described the construction of the property’s walls and floors. As no obvious cause could be established, it would arrange for a second inspection with a new surveyor within 2 weeks.

Assessment and findings

Handling of report of cooking smells

7. Under Part C of the resident’s tenancy conditions, the landlord is responsible for maintaining and repairing the structure of the property. It was therefore reasonable for the landlord to send a surveyor to investigate whether the transference of cooking smells may be related to disrepair. As the resident had also noted that the smells began around the time the communal vent was replaced, the landlord acted appropriately by investigating its construction and considering whether this could be contributing to the issue.
8. The landlord initially failed to send the correct contractor to inspect the vent, which increased the resident’s frustration at the time taken to investigate the issue. There was a delay of almost 2 months between the landlord sending an electrician out on 17 February 2021, who confirmed that the vent had not been installed by the landlord’s electrical contractor, and the landlord arranging a survey on 13 April 2021. The landlord did not follow-up with the correct contractor until 14 April 2021, which was unreasonable. The delay and poor communication undermined the resident’s faith in the landlord’s processes.
9. The landlord also failed to update the resident following the survey of 13 April 2021. Had it done so, the resident may not have felt it necessary to raise a formal complaint. The resident reports that she telephoned the landlord on 27 April 2021 and was informed that the surveyor’s report was not available, although the evidence shows that the surveyor sent an email to the landlord on 13 April 2021 containing his comments and attaching photographs.
10. The landlord failed to address the concerns raised by the resident about the possibility of carbon monoxide entering the property. The landlord should have investigated the carbon monoxide levels within the property to reassure the resident that they were safe or, if it already had reason to believe the carbon monoxide levels were safe, such as the presence of a carbon monoxide detector and/or recent testing, this should have been communicated to the resident.
11. As part of its investigation into the issues the landlord should have considered inspecting the neighbouring property. Strong cooking or other smells are unlikely to amount to nuisance and so would be unlikely to warrant action under the landlord’s Anti-Social Behaviour (ASB) procedures. It would, however, have been appropriate to inspect the flat below to determine whether any unauthorised alterations had been made that may be causing or contributing to the problem, or whether any repairs were required. The second survey that took place after the final complaint response did suggest an inspection of the flat below, although it is not known whether the landlord has followed this up as it has only informed this Service that a CCTV inspection has been arranged.
12. The landlord failed to adequately manage the resident’s expectations about the action it can take to deal with the transference of cooking smells between properties. Although the landlord has demonstrated that it has taken the resident’s concerns seriously by investigating, it may ultimately be unable to resolve the issue to the resident’s satisfaction. The landlord is not required to prevent the transfer of cooking smells between properties and the extent of its responsibilities should have been made clear to the resident. It could also have provided advice to her about alternative ways of resolving the issue, such as discussing the issue with her neighbour and increasing ventilation.
13. There was service failure in the landlord’s handling of the resident’s report of cooking smells, as there was an unreasonable delay in investigating the issue, the landlord initially sent the incorrect contractor to investigate, it failed to update the resident following the survey and it failed to respond to her concerns about the presence of carbon monoxide. The Ombudsman makes an award of compensation to reflect the inconvenience caused to the resident, which is in line with the amounts set out in the Ombudsman’s remedies guidance.

Complaints handling

14. The stage 1 complaint response provided to this investigation is undated, although the response acknowledged that it had been provided after the expected deadline of 4 June 2021. Though the date of the stage 1 response is unknown, it is clear from the resident’s escalation request that she had received it by 7 June 2021, and so the £10 compensation offered in recognition of this short delay was reasonable in the circumstances. The landlord did not, however, attach the compensation claim form to its stage 1 response and so the resident was forced to raise this in her escalation request.
15. The stage 2 response was provided 4 months after the resident’s escalation request was made, which is a significant, unreasonable, and unjustified delay. Following the intervention of this Service the landlord informed the Ombudsman that the issues required technical investigation before a resolution could be reached.
16. The landlord is reminded that taking action to investigate or resolve an issue should not delay the complaint response. Paragraph 5.5 of the Ombudsman’s Complaints Handling Code states that a complaint response should be sent to a resident ‘when the answer to the complaint is known, not when the outstanding actions required to address the issue, are completed’. The fact that the landlord had not yet identified the way the smell was entering the resident’s property should not have delayed its final complaint response.
17. Both the stage 1 and 2 complaint responses failed to address some of the issues raised in the resident’s original complaint. The resident’s complaint was not simply that the landlord had failed to identify or resolve the issue, but that its communication with her and the service she had received had been poor. The landlord commented that the resident’s concerns about long call waiting times had been passed to the customer service team, but it did not set out its service standards and assess whether these had been met. It was not sufficient to merely state that several enquiries had been raised and responses provided.
18. The landlord failed to identify and to respond to the resident’s assertions, other than to acknowledge a short delay in providing the stage 1 response. The landlord did not respond to the resident’s comments that the incorrect contractor was initially sent to investigate the issue, that it failed to follow-up with the correct contractor within a reasonable time, or that it failed to provide an update following the surveyor’s visit. It also did not explain why the surveyor’s notes were not recorded on the resident’s file at the time of her call on 27 April 2021.
19. The landlord did make considerable effort to describe its investigations and conclusions and to provide information to the resident, however, this was not an adequate response to her complaint about its communication. It is also noted that there is no basis in the evidence provided to this Service for the landlord’s statement in the stage 1 response that the surveyor had concluded that the smell was coming in through the windows.
20. The final complaint response did show a commitment by the landlord to try to put things right for the resident, as it offered to carry out a second survey of the property. Following the final response, a second inspection took place, which did not identify the cause of the issue but recommended a CCTV inspection. The landlord states that this has now been arranged.
21. There was maladministration in the landlord’s complaints handling due to the considerable delay in providing the stage 2 response, the failure to address all aspects of the complaint and the failure to adequately investigate and identify service failure in its handling of the substantive issue. An additional award of compensation is made to reflect the inconvenience caused to the resident by the delay, which prevented her from bringing her complaint to this Service at an earlier stage.

Determination

22. In accordance with paragraph 54 of the Scheme, there was service failure in the landlord’s handling of the resident’s reports of cooking smells entering her property.
23. In accordance with paragraph 54 of the Scheme, there was maladministration in the landlord’s complaints handling.

Order

24. Within 28 days of the date of this report the landlord is ordered to:
    1. Pay the resident £100 compensation in recognition of the delay in investigating her concerns and providing her with an update.
    2. Pay the resident £75 compensation in recognition of the landlord’s poor complaints handling.
    3. Respond to the resident’s concerns about the transfer of carbon monoxide between properties in writing, setting out how it proposes to investigate this matter.

Recommendation

25. If it has not done so already the landlord should, as recommended within the surveyor’s report, arrange an inspection of the neighbouring property to check for alterations or any required repairs that may be contributing to the transference of cooking smells between properties.