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Chesterfield Borough Council (202005710)

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REPORT

COMPLAINT 202005710

Chesterfield Borough Council

29 September 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 response to the resident’s report of a bad smell in his home.
  2. The handling of the subsequent complaint.

Background and summary of events

2.     The resident is a secure tenant living in a maisonette with a neighbour living underneath.

3.     The resident says that he has been experiencing a smell in his home which has been affecting his physical and mental health. The resident has a lung condition and is 68 years old. The resident has described the smell as a “musty horrible smell each morning.” The resident is not satisfied with the actions taken by his landlord to investigate and resolve this issue.

4.     The first record of a bad smell being reported by the resident is from January 2018. The landlord investigated the issue on 16 January 2018 and concluded that a poorly positioned waste pipe in the kitchen could have been causing a smell of stagnant water. The pipework was corrected and this service has not seen any record of further contact from the resident about the issue between then and August 2020. The resident says that poor workmanship by the landlord’s operatives when his kitchen was replaced in 2016 had caused the issue. 

5.     On 25 August 2020, the resident made a formal complaint that he had been trying to convince his landlord for two years that there was a bad smell in his bedroom. The resident explained that this had caused him to stop using his bedroom at night and sleep in his living room instead. The resident said that the ‘detriment to his health had continued’ because of the landlords ‘total unhelpfulness.’

6.     On 13 October 2020, the landlord visited the resident to investigate the reported smell. During the visit, the landlord said that the rear panels to the kitchen units were removed and the pipework was checked for leaks and defects but nothing was found. However, the landlord decided to renew the waste pipe and trap to the sink, renew the kitchen taps where ‘a slight leak’ was found, and reseal around the sink. The resident disputes that this was a slight leak and says it has been a cause of mould (as water collected slowly near the boiler due to the leak) and also caused a corrosive metallic smell in his kitchen.

7.     The resident contacted this service about the problem and said he was having difficulty accessing the complaints process. Despite repeated contact from this service, the landlord did not provide the resident with a stage one complaints response and a complaint handling failure order (CHFO) was issued to the landlord on 17 December 2020. The CHFO said that the landlord had ‘failed to comply with the Ombudsman’s Complaint Handling Code and has not managed (the residents’) complaint within a reasonable timescale resulting in unnecessary delay and inconvenience.’

8.     The landlord provided an update to this service in December 2020 describing the actions it had taken to date. At this time, the landlord said that it was not prepared to offer the resident any compensation since it did not recognise that a service failure had occurred. However, as a gesture of goodwill the landlord offered the resident a payment of £100. A copy of this update which was effectively a stage one complaint response was then sent to the resident by the landlord on 22 December 2020.

9.     The resident spoke to his landlord on 24 December 2020 about the response it had sent and a meeting was set up for 6 January 2021 at the resident’s home to discuss the issues further. Despite some concerns about Coronavirus, the meeting went ahead. Following the meeting on 6 January, the landlord agreed to carry out the following additional investigative measures to find the cause of the smell that was still disturbing the resident:

  1. CCTV would be carried out on drains to check for blockages.
  2. All gutters to be cleared.
  3. Checks to be made on the toilet and cavity wall insulation.
  4. A refit of kitchen units to be scheduled by the landlord after Coronavirus restrictions had been lifted.
  5. Re-offered the £100 gesture of goodwill for redecoration costs. 

10. The checks were carried out on 15 and 18 January 2021, and the CCTV was completed on 21 January 2021. No sign of the cause of the smell was found. The officer visiting said that he had not experienced a bad smell when attending as reported by the resident.

11. Following further contact with this service in April 2021, the landlord was asked to provide an update to the resident about the outstanding works to the kitchen and the smell itself. The resident made a separate complaint on 7 May 2021 regarding the use of his gas fire which is not considered within this investigation as it was resolved at the first stage of the landlord’s complaints process.

12. On 10 May 2021, the landlord again contacted the resident to discuss the situation. The resident suggested installation of an air brick vent may help reduce the impact of the smell he was experiencing by increasing the flow of air within his home. The landlord agreed to installation of two air bricks in principle – one in the kitchen and one in the bedroom.

13. A dispute emerged between the landlord and the resident regarding the installation of the air bricks. The landlord insisted on the air bricks having an internal and external vent joined together while the resident wanted just one external vent. The resident said that by using his method scaffolding would not be required to carry out the work. The landlord said that installing the air bricks using the method proposed by the resident could cause damp and mould problems and was against regulations. This dispute lead to the escalation of the resident’s complaint to stage two.    

14. The landlord sent a stage 2 response to the resident on 24 May 2021 which said the following:

  1. The previously promised kitchen refit would take place when possible (after Covid restrictions). It was anticipated this could be shortly after 21 June 2021.
  2. A further CCTV inspection of drains was arranged.
  3. The clearance of gutters was not carried out due to a backlog of work and was now scheduled to be completed by end of June 2021.
  4. Cavity insulation had been checked and nothing had been found.
  5. Installation of the air bricks scheduled for 24 May had not gone ahead as the resident did not agree with the proposed work as explained above.
  6. The officer attending “at no point had experienced any damp or unpleasant smells when visiting the property.”

15. Following further contact with this service in June 2021, the landlord was asked to contact the resident and escalate the complaint to stage 3 if required. On 25 June 2021, the resident clarified why he was not satisfied with the responses from the landlord. The resident said that

  1. The leak identified in his kitchen taps had not been minor as suggested by the landlord in its initial response and had caused mould issues and a corrosive metallic smell. The resident said that a rubber washer had not been installed by the landlord’s operative. The leak from the tap caused a mould issue in his home and ‘a constant terrible smell in the kitchen along with the terrible smell of the corroding tap connectors.’ 
  2. When workers arrived to carry out kitchen work at the end of June 2021, he stopped them doing the work since they said they were not going to replace pipework as he thought but only look behind the kitchen units. The resident said this was pointless as it had already been done and the clean-up required after this was significant. He had not intended to be aggressive or rude.
  3. Although some landlord staff had denied they could smell anything, one workman attending told the resident he could smell a ‘paint smell’.
  4. The landlords ‘test’ on the cavity insulation had in the resident’s view been inadequate and unprofessional.
  5. His washing machine had constantly been getting blocked due to the ‘bad outlet plumbing’ in his kitchen.

16. On 2 July 2021, the landlord sent a stage 3 complaint response to the resident. The response did not alter the landlord’s previous assessment of the situation. The landlord asked the resident for his co-operation with regard to site visits and repair work. The landlord said that while the CCTV had been done and nothing found, it acknowledged that the gutters had not yet been cleared and this would be done in the ‘next few weeks.’

17. The resident accused the landlord of ‘outright lies’ in its response letter and approached this service for assistance with resolution of the complaint and the smell in his home. The resident has advised that he has researched getting the matter looked in to by a private company but the cost is too high.

18. In July 2021, the resident informed this service that his neighbours sewage had been blocked and this could have been causing the issue over 3 years. The resident advised that the smells in his home stopped around February 2022 for reasons unknown. He has not been able to discover the cause of the smell although he has some theories about this based on his own observations and knowledge about his neighbours.

19. In August 2021, the resident advised this service that he had asked his landlord for assistance with a mobility scooter and a ramp in his home but this request had been denied by his landlord. The resident says he has been assessed by social services for additional support but did not meet the criteria at the time.

Assessment and findings

Response to report of a smell

20. The resident’s tenancy agreement states that the landlord’s obligations on repairs are to “keep in repair the structure and exterior of the property (including communal areas)” and also to “keep in repair and proper working order the installations of the property for the supply of water, gas and electricity sanitation and for space heating or hot water.” This includes for example the kitchen taps and sink area which the landlord acknowledged was faulty in its complaints responses.

21. Landlord obligations regarding repairs are set out in Section 11 of the Landlord and Tenant Act 1985 as well as the landlord’s own policies and procedures. The landlord’s ‘repairs guide’ says that the landlord “will keep you informed on the progress of your repair, give you information about any follow up work that needs doing and tell you when this will be done.”

22. Despite the inconvenience of Coronavirus restrictions, overall the landlord performed well in keeping the resident informed of what it was doing to try and identify the cause of the smell and the various actions it took to investigate such as:

  1. CCTV of drains (twice)
  2. Inspection of cavity wall insulation
  3. Inspection of bathroom and toilet
  4. Inspection of kitchen units 
  5. Gutter clearance
  6. Proposed installation of air brick vents

23. This was especially evident in January 2021 when the landlord carried out a home visit and updated the resident regularly in January about the proposed follow-up actions outlined above.

24. However, those attempts ultimately were unsuccessful in stopping the bad smell for an extended period which would be close to 3 years in the residents view. It is also noted that there is no evidence showing what the landlord did to investigate the other local neighbours to the resident and no evidence that this was given consideration. It was assumed that the problem must be originating within the resident’s flat and it remains unknown if this was the case. The landlord should  have been more pro-active in investigating the local area not just inside the resident’s flat.

25. It was reasonable for the landlord to insist on air brick vents being compliant with building control regulations and although there is some evidence that the kitchen refit in 2016 was executed poorly, the landlord took appropriate measures to correct this such as repairing the kitchen pipework following the resident’s complaint.  

26. The landlord’s repairs policy states that it aims to carry out priority repairs within 15 working days and routine repairs within 20 working days. It does not specify how long programmed works can take but the landlord has acknowledged that there was a delay on the gutter clearance caused by a backlog of work.

27. Although most of the repairs were carried out promptly in January 2021, there was significant delay in carrying out the kitchen refit and clearance of the gutters. While the delay on the kitchen refit was unavoidable due to Coronavirus restrictions, there was avoidable delay on the gutter clearance of approximately 6 months from January until the end of June 2021. An order for £100 compensation for delays to the resident has therefore been made below.

28. The repairs and investigations made by the landlord as set out above were reasonable and appropriate steps taken in the spirit of trying to remedy the situation. Since there was no report of a specific fault or amenity requiring repair, the actions were in a sense taken on a discretionary basis and demonstrated both a focus on resolution of the problem and a willingness to investigate.

Complaints Handling

29. The landlord’s complaints policy indicates the landlord’s aims with regards to each stage of the complaints process. Regarding stage one complaints, the policy states that

  1. “Complaints can best be dealt with frontline staff who provide the service. Your complaint should be acknowledged within 5 working days, giving the name and contact details of the member of staff dealing with it and informing you of the outcome or progress within 15 working days. At the end of stage 1 if you remain dissatisfied you can have the complaint reviewed by the Head of service.”

30. The landlord did not correctly follow its complaints procedure with regard to the initial reports of a bad smell by the resident. The initial complaint was made on 25 August 2020. No acknowledgement has been seen by this service and the resident was not visited until 13 October, well over a month later. A stage one response was not sent to the resident until December 2020 following prompting  as well as the issue of a Complaint Handling Failure Order by this service.

31. The landlord should have made accessing its formal complaints policy much easier for the resident and provided a clear written response in a timely fashion as set out in the Ombudsman’s complaint handling code and its own complaints policy. Additionally, the response should have included clear information about how to escalate the complaint if the resident was not satisfied.

32. These failures were recognised by the landlord in its stage one response. The landlord apologised for this and explained that “having visited you in person, we assumed that this would suffice and a follow up letter to the visit would not be required.” This approach is not in line with the complaint handling code and did not provide the resident with an appropriate response to his complaint.

33. The extent of the impact on the resident caused by these service failures is in dispute to some extent since the landlord has not recognised that an unpleasant smell existed which was affecting the resident. However, it cannot be disputed that the resident spent considerable time and trouble attempting to escalate his complaint from October to December 2020.

34. Similarly, although the extent, cause and impact of the smell is still disputed, the resident has over the period of his complaint experienced considerable inconvenience such as not sleeping in his bedroom for over one year, repeated visits to his home via appointment, as well as redecoration of his home following repairs.

35.  In order to try and put right what has gone wrong in terms of complaints handling, an order for £150 compensation has been made below.

Next Steps

36. As mentioned in the summary of events above, the resident has reported the bad smell stopped in February 2022.

37. Recent correspondence indicates that the resident has requested assistance from his landlord in storing or using a mobility scooter or wheelchair. It is noted that the landlord has refused this stating that it would need to be approved by an Adaptations Panel. The landlord has offered to move the resident to alternative accommodation which he is unwilling to do.

38. Given the resident’s concern about his independence, wellbeing and mobility, it has been recommended below that the landlord reconsiders taking this matter to the Adaptations Panel so it can be given more thorough and formal consideration.

 

 

Determination (decision)

39. In accordance with paragraph 54 of the Housing Ombudsman scheme, there was service failure in the landlord’s response to the resident’s report of a bad smell in his home.

40. In accordance with paragraph 54 of the Housing Ombudsman scheme, there was maladministration in the subsequent complaint handling by the landlord.

Reasons

41. There was avoidable delay in carrying out some follow–up work such as gutter clearance after a home visit in January 2021. The landlord limited its search for the cause of the smell to the residents home and was not able to find the cause of the problem. The resident had difficulty accessing the complaints process and there was a two month delay in issuing a stage one complaints response.

Orders and recommendations

42. It is ordered that the landlord pay the resident £350 compensation within four weeks comprising £100 as a goodwill gesture as previously offered to the resident, £100 for delays and inconvenience with repairs associated with investigating the smell and £150 for the identified service failures in complaints handling minus any compensation already paid.

43. It is recommended that the necessary steps are taken to bring the case to the Adaptations Panel.