East Devon District Council (202008910)

REPORT

COMPLAINT 202008910

East Devon District Council

23 March 2021

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 handling of the resident’s reports of cigarette smoke infiltrating into her property from a neighbouring property.

Background and summary of events

2. The resident is the leaseholder of the property and the landlord (a local authority) is the freeholder. The property below the resident’s belongs to the landlord and is resided in by its tenant.
3. The Housing Ombudsman (this Service) has not had sight of evidence of the resident’s first report of the smell of cigarette smoke infiltrating into her property from the flat below.
4. On 14 May 2019, the landlord wrote to the resident to inform her that it booked a repair with its contractor, in relation to the resident’s reports of smoke smells coming through her floor from the flat below. It advised that its contractor would contact the resident to arrange an appointment to carry out works to the pipes (which pass through the floorboards) in the resident’s kitchen cupboard and the cupboard floor area. According to the landlord’s email to this Service of 26 January 2021, the resident first reported the issue in May 2019.
5. Based on the landlord’s internal email, it made the following contact with the resident regarding an appointment:

a)     Emailed the resident on 21 June 2019, after attempts to contact her by phone.

b)     Cold–called and left a card for the resident, as the contractor was unable to gain access to the property, on 28 June 2019.

c)     Called the resident and left a message on 1 and 4 October 2019.

d)     The resident texted back on 4 October 2019 and the landlord offered dates for an appointment, but they were not convenient for the resident.

e)     A week later the resident offered a day she was free for the repairs to be carried out, but this was too short notice for the landlord.

f)       Called and texted the resident on 21 November 2019 and, on 22 November 2019, offered an appointment for 29 November 2019. The resident replied on 23 November 2019 to advise that her only availability was either the morning or after 6pm on 24 December 2019.

6. In the landlord’s internal correspondence, dated 2 December 2019, it said that it received a complaint from the resident regarding smoke infiltration from the flat below. It noted that the resident said that it had been nine months since her initial contact about this but that she was still waiting for something to be done.
7. On 10 December 2019, the landlord’s internal correspondence confirmed it had successfully booked an appointment for the morning of 24 December 2019 with the resident.
8. In providing this Service evidence, the landlord has advised that the resident contacted it in early 2020 and “attended a meeting with [the landlord] on 5 February 2020. At this point, [the resident] expressed frustration that matters had not been resolved more quickly and it was agreed that her complaint would be escalated to stage two of [the landlord’s] formal complaints procedure.” The landlord has not provided evidence of any record of this to the Ombudsman.
9. Furthermore, the landlord advised this Service that it carried out a site visit, which informed its later complaint response. It said that the person who conducted the visit left the organisation and so it did not have access to any notes which they may have made following their visit, other than their input into the complaint response at the time and their following comments:        
10. “This has been ongoing for a long time (over a year) and [the landlord has] previously been visiting with minor repairs being completed but not resolving the problem. This is a complex case as this is not [the landlord’s] property and there is no ‘defect’ as such. If the resident downstairs was not a significant smoker then this would not be a problem. There is also a back boiler installed and air vents built into the external walls – these are allowing the transfer of air between properties which are normal building features. It will be difficult (and expensive to resolve). However, [the employee gave the resident] assurance that [the landlord would] continue to work through some actions to improve the situation.”
11. The landlord responded to the resident’s complaint on 17 March 2020. It said that, on recent inspection, it found that the smoke appeared to be filtering through the floorboards in the lounge, kitchen, bathroom, and possibly also through the vent for the lounge back boiler. The landlord explained that it was only responsible for issues relating to the external fabric of the building and any internal alterations were the resident’s responsibility, as a leaseholder. It added that other works, such as re-rendering or roofing, were re-charged to leaseholders through annual service charges. The landlord concluded that the problem was not caused by any structural defect with the building itself.
12. The landlord acknowledged and apologised that the resident complained she had waited over a year for the landlord to find a solution. It explained that this was due to staff changes, that the issue was “a unique set of circumstances” and that the matter was complicated by the differing responsibilities it had to its tenants and leaseholders. The landlord confirmed that it had taken some remedial measures, such as filling around pipework, but this seemed to have had minimal effect.
13. Moving forward, the landlord said that the type of remedial steps required to resolve the issue would ordinarily be the resident’s responsibility but, as a gesture of goodwill in recognition of the length of time the resident sought answers from the landlord, it would carry out works which it felt would reduce the transference of cigarette smoke between the two flats. This included laying vinyl flooring with sealed edges in the kitchen and bathroom of the resident’s property; and lifting the lounge carpet, laying a vapour barrier underneath, and then re-laying the carpet. The landlord confirmed that it would also check whether the vent in the flat below was still necessary and suggested that the resident consider replacing the back boiler in her flat, which would mean that her vent could be removed. The landlord felt this could improve the smoke transference.
14. The landlord advised that it would send the resident an information leaflet which would detail the next steps in its complaints process, should the resident remain unhappy. This would include the role of the Housing Ombudsman. This appeared to be the landlord’s final complaint response.

After the landlord’s complaint response

15. The resident responded on 19 March 2020. She said that she wrote five letters of complaint over 14 months but never received a reply on “letter-headed paper”. The resident also asked the landlord to provide her with the results of the recent visit, which were detailed in the complaint response, and for it to provide her a copy of the lease and direct her to the relevant sections to which the landlord referred. Finally, the resident asked the landlord to comment on “statutory nuisance … which includes smoke from premises and the landlord’s responsibilities”.
16. In the landlord’s reply of 19 March 2020, it attached the letter version of its complaint response. It confirmed that the results of the visit were included in its response, it provided a copy of its leaseholder handbook, and said the matter was not a potential smoke nuisance caused by somebody acting unreasonably.
17. The resident responded on 7 April 2020. She reiterated her request for the visit notes, asked the landlord to refer to her specific lease, and for the landlord to support its statement that the issue was not a potential smoke nuisance. She explained that her complaint included the landlord’s complaint handling and said that the landlord had not responded to her “numerous emails and five formal letters (the last three of which directly stated they were in complaint) for 12 months since January 2019”. The resident also said that the landlord did not respond to her “emails and telephone calls in January 2020 (at which stage one procedure had been effected)”.
18. The resident acknowledged that, due to the coronavirus pandemic, repair works were put on hold, but she had not been kept updated.
19. On 9 April 2020, the landlord responded and reiterated that the observations and recommendations, following its visit, “fed in to” its complaint response. It provided the resident a copy of the lease for the property and said that it had nothing to add to its previous comments regarding the resident referring to the smoke as a nuisance. Finally, the landlord confirmed that it had responded, in full, to the resident’s formal complaint and the resident may refer her complaint to the Housing Ombudsman.
20. The landlord has advised this Service that more recently, the landlord carried out a further visit to the resident’s property and this resulted in a follow-up letter to its stage two response. The landlord has not provided evidence, or the date, of the visit which it referred to, to the Ombudsman.
21. The landlord wrote to the resident on 17 August 2020 and confirmed that it was prepared to carry out various work to the floors of the whole of the resident’s property, to address the issue of smoke ingress from the flat below. It asked the resident if she intended to replace her gas fire/back boiler. The landlord explained that while it would, as a goodwill gesture, carry out the remedial work to the floors, it could not guarantee that this would stop the problem of smoke infiltration from the flat below. This was because the building “of the age of this property” was not built to current air tightness standards and, as such, had many paths within the structure for airflow/draughts which would ultimately allow the infiltration of cigarette smoke.
22. The landlord has since advised this Service that “due to the age and structure of the building, and the fact that this problem is not the result of an actionable breach of tenancy on the part of the landlord’s tenant, it is unlikely that [the proposed repairs] will completely solve the problem. The [landlord] has therefore made an offer to purchase the lease back from the resident to enable her to move into a home that she feels happier in.” The offer to buy back the lease from the resident was the resident’s proposal, as detailed by her designated person to this Service on 15 November 2020.

Assessment and findings

Repairs

23. In line with the resident’s lease with the landlord, the landlord is responsible for the repair of the structure of the property, including pipes which serve other properties. The resident is responsible for the repair of the interior of the property, including pipes which serve only her property and the heating system. The leaseholder’s handbook reiterates this.
24. Therefore, it is the landlord’s responsibility to carry out works to pipes which serve other properties. It appears that the pipes, which the landlord carried out repairs to, were its responsibility. The landlord completed works to these pipes to reduce the cigarette smoke infiltration from the flat below. It did take several months for the landlord to arrange an appointment for this; however, according to the landlord’s records, it struggled to arrange a convenient appointment with the resident. The landlord also offered to undertake flooring works, which were beyond its obligations as the resident was responsible for this. It also informed the resident that she may replace the boiler, and remove its vent, to reduce the smoke infiltration. Overall, the landlord’s actions to address the substantial issue of smoke filtration were reasonable and in line with its obligations.
25. After exhausting its complaints procedure, the landlord wrote to the resident with more detail on the scope of works it would undertake works to the floors of resident’s property; however, it advised that this could not guarantee that there would be no smoke transference.
26. As previously explained, the works were beyond the landlord’s obligations and it has demonstrated that it managed the resident’s expectations, which is in line with good practice. The resident was unhappy with this, however, as the landlord could not guarantee that the works would fully resolve the issue. Therefore, the landlord ultimately agreed to buy back the flat from the resident, at her suggestion as a resolution. The landlord was not obligated to do this. Its leaseholder’s handbook explains that “there may be a covenant in your lease requiring you to first offer your home back to us or to a third party nominated by us, before you can look to transfer title to your home to a third party”. The lease does not say this, and this Service has not had sight of any evidence that the resident initiated selling proceedings of her property. So, again, the landlord has gone behind its obligations and made an offer with the hope of resolving the matter for the resident.

Record keeping and complaints handling

27. However, the landlord has not provided records of what took place between December 2019 and March 2020 and a lot of the landlord’s evidence is based on the landlord’s comments, in internal emails and to this Service, alone. This Service asked the landlord for further information and the landlord gave a written account of events and advised that it had provided all the evidence available.
28. The Ombudsman would expect a landlord to keep a robust record of contacts and repairs, yet the evidence has not been comprehensive in this case. It is vital that landlords keep clear, accurate and easily accessible records to provide an audit trail. If this Service investigates a complaint, it will ask for the landlord’s records. If there is disputed evidence and no audit trail, this Service may not be able to conclude that an action took place or that the landlord followed its own policies and procedures. For example, while it is clear from the evidence that the landlord undertook repairs and visited the property, there is no log of either and it is unclear what date the latter visit, which informed the landlord’s complaint, took place on.
29. The landlord’s complaints procedure details that at, at stage one, “a response will be prepared and sent to the complainant within 20 working days of acknowledgement … where this is not possible … [the landlord] will make this known to the complainant and provide an indicative timescale when a full response will be provided.”  At stage two, the landlord will respond within 20 working days, again informing the resident of timescales if it is not able to do this.
30. The landlord delayed in responding to the complaint, is unable to evidence that it kept the resident updated and did not respond at both stages of its procedure. Therefore, it did not adhere to its complaints procedure. The landlord has partially acknowledged the delay “in finding a resolution” but not that it had not adhered to its complaints procedure. It has explained to this Service that its complaints officer met with the resident on 5 February 2020 and agreed to escalate the complaint to stage two due to its delays. However, again, the landlord has been unable to evidence this, and, in any case, this would not have been in line with its complaints procedure which says “most complaints will start at stage one unless a decision is made by the chief executive or monitoring officer that a complaint needs to begin at the highest level”. The resident has indicated that she made multiple complaints to the landlord about the matter, but again, because the landlord’s evidence has not been comprehensive, this Service cannot confirm nor deny this.
31. Overall, based on the evidence available, the landlord appears to have taken reasonable action to address the issues of smoke ingress. However, the landlord’s record keeping has not been comprehensive; therefore, it is unable to evidence that it kept the resident updated. Furthermore, it has not responded to the resident’s complaint in line with its complaints procedure.

Determination (decision)

32. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s reports of cigarette smoke infiltrating into her property from a neighbouring property.

Reasons

33. The landlord took reasonable steps in an attempt to resolve the issue of smoke ingress but has not been able to evidence that it kept the resident updated on her reports and subsequent complaint. Additionally, the landlord did not adhere to the timescales given in its complaints procedure and did not respond at stage one of this.

Orders

34. In light of the findings of this investigation, the landlord is ordered to (within four weeks of the date of this determination):

a)     Pay the resident £150 for the inconvenience and time she incurred in pursuing her complaint.

Recommendations

35. It is recommended that the landlord:

a)     Reviews its record-keeping practices to ensure that it holds adequate records of its repairs inspections and contact with its residents, so that it can be provided to this Service upon request, in response to a complaint.

b)     Consider staff training to ensure it is responding to complaints in line with its complaints procedure.