Camden Council (202204295)

REPORT

COMPLAINT 202204295

Camden Council

27 September 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

The complaint is about the landlord’s:
1. response to the resident’s reports of smoke and fumes entering her property;
2. complaints handling.

Background

The resident is the leaseholder of the property which is a flat in a block of similar properties. The landlord is a local authority.
On 8 November and 1 December 2021, the resident reported to the landlord that there was a hole under her bath which revealed exposed wiring and the fan from the property below. This allowed cigarette smoke to enter her property from the property beneath. The resident informed the landlord that this was a concern as she had recently been diagnosed with cancer.
Works were raised by the landlord; however, they were subsequently cancelled. The landlord’s records noted this was because the resident had advised that she no longer required them. The resident has disputed this.
On 3 March 2022, the resident advised that she did want the landlord to carry out repairs. The landlord raised works to remove the resident’s floor, repair ducting in the property below, and carry out a smoke test. These works were completed on 7 April 2022.
On 20 April 2022, the resident informed the landlord that the works had not resolved the issue. When she received no response, she sought assistance from this service. The landlord subsequently raised a formal complaint on 14 June 2022.
The landlord provided its stage one response on 22 June 2022. It confirmed that its smoke test had found no evidence of smoke entering her property. However, it noted her report that the issue persisted and said it would be considering further work which it would communicate to the resident.
The resident received no further updates and so escalated her complaint on 12 September 2022, and again on 27 September 2022. She asserted that the repairs in the property below were incomplete and had not been satisfactorily inspected. She said that the continuing ingress of smoke and fumes were negatively affecting her health.
The landlord issued its final response on 16 November 2022. It said that it was unable to find its records for her repair and apologised for this record-keeping failure. However, it considered that there were no further works it could practically undertake, and apologised that this had not been communicated to the resident sooner. It also said that while the smoke test had shown that smoke did not penetrate the resident’s property, it was not possible for all smells to be eradicated. It said that non-visible concentrations of tobacco smoke were “unlikely to be harmful,” but acknowledged these could be a nuisance. The landlord partially upheld the complaint for not communicating its decision about the repairs to the resident sooner.

Assessment and findings

Scope of investigation

The Ombudsman is concerned to note the resident’s reports that the smoke and fumes entering her property were negatively impacting her health. However, it is outside the remit and authority of the Ombudsman to determine if there was a direct link between the landlord’s actions or omissions, and any subsequent detriment to the resident’s health.
If the resident considers that her health has suffered as a result of the landlord’s actions or omissions, she may wish to seek independent legal advice on making a personal injury claim or making a claim through the courts if she wishes to pursue this matter.

Smoke fumes

The Ombudsman notes that the resident is the leaseholder of the property. Therefore, the landlord had responsibility for the repair and maintenance of the structure of the property. When it received a report from the resident that smoke and fumes were entering her property from an external source, it had an obligation to carry out a reasonable inspection and determine if the repair was its responsibility.
The resident disputed the landlord’s assertion, in its final response, that she had cancelled repair work on 12 December 2021. The landlord’s assertion was not consistent with its repair records, which recorded on 12 January 2022 that the resident no longer required the work. No further evidence is available to confirm the reasons for the cancellation of the repairs which indicates poor record keeping on the landlord’s part. A landlord would be expected to keep clear and comprehensive records of its management of repairs to assist in the efficient progress of repair work, and minimise delays and inconvenience to residents.
The landlord acknowledged its failure to keep clear records in its final stage complaint response and noted that no record was available of its response to the resident’s further report regarding the smoke and fumes persisting. While it was reasonable for it to acknowledge and apologise for this, one of the Ombudsman’s dispute resolution principles is ‘learning from outcomes’. The landlord will therefore be ordered to confirm to the Ombudsman what steps it will take to improve its repairs record keeping.
Due to the issues with record keeping mentioned above, the Ombudsman is unable to determine why repairs to address the resident’s report of smoke and fumes entering her property did not commence until 5 months had elapsed since her original report on 8 November 2021. This timeframe is especially concerning considering that the resident had alerted the landlord to her illness. This was a significant period and it is concerning that the landlord’s records do not adequately explain this.
When the resident reported that the repairs on 7 April 2022 had been unsuccessful and she held that the ventilation had not been properly repaired or inspected, it was unreasonable that the landlord did not carry out any further investigation. As stated above, the landlord had a repair obligation for the structure of the property, and when a repair is reported to be unsuccessful by a resident, the landlord should investigate to determine whether or not this is the case.
The Ombudsman is concerned that the landlord asserted that it considered that all practical steps had been taken without there being any evidence of an inspection to satisfy itself of this. Its final stage response said that further consideration had been paid to possible solutions to the smoke and fumes reported by the resident; however, “none were felt to be practical.” The landlord did not satisfactorily elaborate on what steps it had considered or why they were not practical. This would have left the resident frustrated and unclear about why it was unable to solve the issue.
Furthermore, it is unclear on what evidence the landlord based its assertions that non-visible concentrations of smoke in the air were unlikely to be detrimental to health. While it may be true that some smells may be impossible to prevent, the Ombudsman considers that the comments about the impact on the resident were inappropriate and baseless, which would have caused her distress.
It is additionally concerning to note that while the resident informed the landlord that she was undergoing treatment for a serious long-term illness on 8 November 2021, in its response to the Ombudsman’s request for information, the landlord said that the resident had no recorded vulnerabilities. This demonstrates a further record keeping failure.
In summary, the landlord failed to keep adequate records of the repairs process, leading to frustration and inconvenience for the resident in chasing updates on the repair. It failed to communicate its decision to the resident that it had decided not to carry out any further work. There was also no evidence that the landlord considered the resident’s medical vulnerability in its decision-making, or that it took adequate steps to ensure that any hazard to the resident was appropriately addressed.
These failures amount to maladministration. The landlord is ordered to pay compensation of £500 to the resident to recognise her expenditure of time and trouble, and the distress and inconvenience she experienced, while awaiting resolution of the repair.
Additionally, given that the landlord acknowledged it had not carried out a further assessment of the repairs to determine if they were successful, the landlord is ordered to carry out a follow up inspection and keep the resident informed of the outcome and of any further works required.

Complaints handling

The landlord’s complaints policy and procedure provides for a 2-stage complaints process. At stage 1 of this, it should provide its response within 10 working days; at the final stage it should respond within 25 working days.
The landlord’s stage 1 response was provided to the resident 11 working days after the Ombudsman requested it to respond to her complaint. This was 1 day in excess of the timeframe specified in its policy and procedure and was not a significant delay.
The resident escalated her complaint with the landlord on 12 September 2022 and the landlord told her the following day to escalate her complaint again if she did not receive an update on the repairs for 2 weeks. She then escalated her complaint again on 27 September 2022, which the landlord responded to on 16 November 2022.
The landlord’s handling of the complaint at the final stage was unreasonable. The Ombudsman’s Complaint Handling Code (the Code) states that a landlord should accept the escalation of a complaint unless there is a valid reason not to. If there is a valid reason then this should be explained to the resident. It is not appropriate for the landlord to ask the resident to defer the escalation of the complaint while it awaited an update on repairs. The landlord should accept the complaint escalation and provide any updates in its response.
Including the delay imposed on the resident by the landlord, it issued its final response to her 46 working days after her first escalation request. This was an unreasonable delay and was 21 working days in excess of the timeframe specified in the landlord’s complaints policy and procedure. This amounted to maladministration in the circumstances.
To recognise the resident’s expenditure of time and trouble in pursing the complaint and the inconvenience caused to her by its delayed final response, the landlord should pay £100 compensation to her.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its:
1. response to the resident’s reports of smoke and fumes entering her property;
2. complaints handling.

Orders

The landlord is ordered to:
1. Pay the resident £500 compensation for its handling of her reports of smoke and fumes entering her property.
2. Pay the resident £100 compensation for its handling of the associated complaint.
3. Carry out a further inspection of the ventilation system in the property below the resident to assess if the repairs were satisfactory and carry out any remedial work as necessary.
4. Confirm to the Ombudsman what steps it will take to ensure that clear and comprehensive records are kept of its handling of repairs particularly with a view to ensuring that appropriate works are carried out for vulnerable residents.