Hyde Housing Association Limited (202127257)

REPORT

COMPLAINT 202127257

Hyde Housing Association Limited

11 December 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. handling of the resident’s reports of smoke ingress to her property.
2. response to the resident’s reports of antisocial behaviour (ASB).
3. Complaint handling.

Background and summary of events

Background

The resident is an assured tenant. She occupied a one bedroom first floor flat in a converted house. She lived there with her partner and their child. The resident and her child have asthma.
The landlord has not provided a full copy of the resident’s tenancy agreement terms. However, a landlord’s legal repair responsibilities are to:
1. Keep in repair the structure and exterior of the property (including drains, gutters, and external pipes).
2. Keep in repair and proper working order the installations for the supply of water, gas, electricity and for sanitation (including basins, sinks, baths, and sanitary conveniences).
3. Keep in repair and proper working order the installations for space heating and heating water.
Under the Regulatory Reform (Fire Safety) Order 2005, the landlord has a legal duty to take such reasonable precautions to prevent and control the risk of fire in its properties including the maintenance of active and passive fire precautions.
The landlord’s ASB policy uses the legal definition of ASB included in the Antisocial Behaviour Crime and Policing Act 2014 which is:
1. Conduct that has caused, or is likely to cause, harassment, alarm, or distress to any person.
2. Conduct capable of causing nuisance or annoyance to a person, in relation to that person’s occupation of residential premises; or
3. Conduct capable of causing housing-related nuisance or annoyance to any person.
The landlord’s ASB procedure states that any alleged criminal offences should be reported to the police without delay. When an ASB report is made, a case will be created, and the resident would be asked to complete diary sheets to log the dates and times of incidents. The landlord will then collect evidence by interviewing the resident and the alleged perpetrator. The procedure further states that the landlord will liaise with other teams or agencies where appropriate and diarise the case for review. A case can be closed if there is no evidence to corroborate the reports.
The landlord has an allocations and lettings policy. This states that the landlord does not have its own internal transfer list and residents wishing to move to an alternative property must register on the local authority scheme.
The landlord’s responsive repairs procedure confirms that routine repairs should be completed within 20 working days.
The landlord operates a two stage complaints policy. Stage one complaints are responded to within 10 working days. If the resident is unhappy with the stage one response, they can ask for it to be escalated to stage two. A senior officer will review the case to determine if it should be escalated to stage two. Stage two complaints should be responded to within 20 working days.
The policy states that the landlord will not escalate a complaint where, for example:
1. The decision is based on published service standards and policy.
2. If it had agreed to carry out a non-urgent repair within its published timescale, it will not escalate a complaint about the time taken to schedule the repair.
3. The complaint has been upheld at stage one; however, the resident has requested an increase in compensation.

Summary of events

The resident moved into the property in August 2021. On 18 October 2021, the resident’s partner contacted the landlord via its website to report that smoke from their neighbour’s property was entering their home through air vents and gaps in the walls and flooring. They had taken some steps themselves to try to prevent this such as filling gaps under the stairs, ventilating the property and fitting a smoke seal to the front door, but the problem persisted. He asked that the landlord undertake an inspection of the property in relation to air vents in rooms in the property, gaps in flooring and around plug sockets.
There was some internal communication recorded by the landlord on 29 October 2021 where discussions ensued about how to address this issue. Its fire safety team advised that as the property was converted, they could not guarantee the level of compartmentation between flats. However, it would agree to seal vents and repair any visible gaps.
On 3 November 2021, the landlord’s contractor visited the resident’s home to undertake a fire inspection. The contractor agreed to undertake fire stopping work in December 2021.
The case was referred internally, on 24 November 2021, to the responsive repairs team to consider any structural repairs. Arrangements were made for a surveyor to inspect the property.
On 25 November 2021, the contractors reported to the landlord that they would look to resolve what they could, however any works undertaken may have limited effect given that it was a converted house. They also said that they could not access a lot of the unsealed areas without taking up floors.
The contractors attended to undertake fireproofing works to the resident’s property and her neighbour’s property on 3 December 2021. The resident’s neighbour did not allow access to do the works. The surveyor attended on the same day and was able to inspect both properties. He reported the following:
1. The neighbour and their household members smoked indoors.
2. It was not possible for the flats to be completely airtight as the property was a Victorian building that had been converted into flats.
3. There was a gap between the ceiling and the wall in the hallway of the neighbour’s property. This was to be blocked.
4. The resident had bare original floorboards which could be allowing smoke ingress. These gaps between floorboards were to be checked and sealed where possible.
5. There was a missing skirting board in the resident’s flat.
6. There were blocked vents in the resident’s flat which were restricting air flow to spaces.
The resident reported to the landlord, on 6 December 2021, that the problem was ongoing and that there was a strong smell of cannabis from the neighbour’s property. The landlord’s ASB team called the resident on 7 December 2021. During the discussion, the resident said that her neighbour smoked tobacco heavily during the day, but there was a smell of cannabis at night. The resident was advised to report drug use to the police. The landlord also requested that the resident keep diary sheets detailing when she detected the smell of cannabis. The landlord told the resident that the case would be reviewed early in January 2022. It followed this up in writing the same day advising that it would allocate the case to an officer. The officer would then write to the neighbour to make them aware of the allegation and to allow them an opportunity to respond.
On 8 December 2021, the landlord’s fire safety team wrote to the resident to notify her that it would arrange contact with the neighbour to gain access to carry out any identified works. It said that there was no guarantee that this would rectify the issue, but that it should reduce the problem.
The resident’s partner wrote to the landlord on 14 December 2021 to report that the initial works undertaken had not reduced the smoke fumes. He said that contractors had attended the previous week to complete works to their flooring but there was some miscommunication about what needed to be done so the works were not completed that day. This was rearranged for 21 December.
On 16 December 2021, there was discussion between the landlord’s teams as to what further fire safety works were required at the neighbour’s property as they had refused access. It was noted that, ideally the neighbour’s property should be ‘fire stopped.’ However, the current fire safety measures in the property were compliant with regulations for a property of its type. While it had undertaken works in the resident’s property to seal voids or gaps, this work was not related to the fire integrity of the property.
The resident’s partner wrote to the landlord on 21 December 2021, to advise that the flooring work had not been carried out and the door seal and work to the neighbour’s property had also not yet been booked in. The landlord responded that these works would be undertaken in the new year. The flooring works were to be undertaken by the repairs team and the surveyor would respond to him shortly.
The ASB team called the resident on 29 December but left a voicemail as there was no response. It recorded that a review had been undertaken that day and the neighbour had been contacted by letter and the case assigned.
The resident called the landlord on 5 January 2022 and said that she had a GP letter in support of her need to move. She enquired about moving and it was agreed that an officer would return her call.
On 10 January 2022, the landlord’s fire safety team wrote in response to an enquiry from the resident’s partner. It advised that the works identified with regards to the neighbour’s flat were not fire safety issues. It would ask for the repairs team to respond regarding any outstanding queries.
On 20 January 2022, the police reported that they had spoken to both flats and the neighbour had agreed that contractors could attend to undertake works in her property if she was given adequate notice. They confirmed that the safer neighbourhood team were happy to continue to liaise with the resident and the neighbour regarding the issue.
The landlord’s ASB team contacted the resident on 28 January 2022 to enquire whether the issue was ongoing and to request that any completed diary sheets be returned. It confirmed that the ASB team would be dealing with the issue regarding cannabis use. The repairs team would deal with any structural issues separately. The resident responded in early February 2022 that the problem had not been resolved.
On 28 January 2022 the resident enquired when the fireproofing works to the neighbour’s property would be undertaken. The landlord’s internal correspondence shows that the fire safety team had advised the resident by telephone in December that they were not required to undertake these works as the current fire safety provision in the building was sufficient. However, structural works had been raised following the surveyor’s inspection and they would need to contact the resident to arrange an appointment.
The ASB team informed the resident on 3 February 2022 that it had arranged for another letter to be sent to the neighbour requesting a response within five working days, failing which it would be issuing a warning letter. It asked the resident to continue completing diary sheets and advised that it was working with the police to address the issue.
The resident has said that she made a formal complaint online on 16 February 2022 but while she had received an acknowledgement, she was yet to receive a response. She had made efforts to chase this but with no progress. She referred the matter to this Service.
On 18 February 2022, the landlord’s internal correspondence confirmed that it was waiting for an update regarding repairs works to the floorboards in the property. The fire safety works had been completed, except for the replacement front entrance door to the resident’s flat which was on order and should be ready in 3 weeks. An appointment to install the door would be arranged thereafter.
On 28 February 2022, the landlord noted that the position may not have been clearly communicated to the resident and requested that an officer contact her with an update.
On 4 March 2022, the ASB team spoke to the neighbour who denied using cannabis but confirmed that she smoked cigarettes in her home.
On 10 March 2022, the fire safety team contacted the contractor to advise that the neighbour had now agreed to provide access for the firestop works to be undertaken and requested that this be actioned. It was agreed that an update would be provided to the resident once an appointment had been made.
The resident raised a complaint with her landlord through this Service on 22 March 2022. The key points of the complaint were as follows:
1. Tobacco and cannabis smoke was coming into her property from her neighbour’s flat.
2. The landlord had agreed to undertake fireproofing works to her flat and her neighbour’s flat, but this had not yet been completed.
3. The resident was unhappy with the landlord’s communication and delays in dealing with her complaint.
The landlord acknowledged the complaint the same day and advised that the resident should expect a response by 6 April 2022 but that if there was any delay she would be informed in advance.
The landlord issued its stage one response on 8 April 2022 in which it:
1. Accepted that there were delays in investigating the issue with smoke ingress from a neighbouring property. It apologised for poor communication between teams and that no-one had taken ownership of the issue to keep her updated.
2. Offered the resident £50 in compensation for her time and trouble and an additional £50 for delays in responding to her complaint.
3. Confirmed that it would board over floorboards to stop the smell of smoke and provided contact details for this to be arranged. It advised that the resident cover the flooring with underlay and carpets.
4. Reported that the neighbour had been visited by the ASB team about cannabis use and the police would continue to do unannounced checks.
5. Confirmed that the fire safety team had completed works to the neighbour’s property in December 2021. In March 2022, an extractor fan was installed in the bathroom and kitchen of the resident’s property to aid ventilation. It confirmed that there were no fire safety issues or repairs outstanding to the resident’s property.
6. In terms of lessons learned, senior management had been consulted and staff would be reminded to take ownership of calls and provide better internal communication to ensure that issues were resolved promptly.
In April 2022, the police informed the landlord that it had visited the neighbour’s property on six separate occasions and had not witnessed any cannabis use. They concluded that the report should therefore be closed.
The resident subsequently reported to the ASB team that someone who lived in the neighbour’s household was smoking cannabis outside the building on the stairs leading up to the front door. The ASB team carried out unannounced visits on 12 April 2022 but did not detect any cannabis use.
On 28 April 2022, the resident wrote to the landlord to report that they had contacted the repairs section several times to arrange for the floorboards to be boarded but they had not had a response. She asked for her complaint to be escalated.
On the evening of 9 May 2022, the ASB team visited the address three separate times but could not detect the smell of cannabis. The landlord wrote to the resident to inform her of this and proposed that there be another visit in June 2022.
On 20 May 2022, the resident informed the landlord that there had been no reduction in the amount of smoke entering her property, and she repeated her request for her complaint to be escalated to stage 2. On 30 May 2022, the landlord responded that her complaint had been passed to senior management to review and respond.
On 16 June 2022, the landlord issued its decision letter:
1. It apologised for the delay in investigating the issues.
2. It declined to escalate the complaint to a stage two investigation because:
  1. All investigations for the smoke ingress had been completed.
  2. All fire safety works were completed, and an extractor fan had been fitted to aid ventilation.
  3. The ASB team had been investigating allegations against the neighbour.
  4. It had advised the resident to install thick carpet and extra floorboards.
3. It had reviewed the compensation and agreed to increase this because of the delay in service delivery. In total the amount offered was £300.
On 29 June 2022, the ASB team visited the property again after hours but did not detect the smell of cannabis or witness anyone using cannabis. Other neighbours had also been contacted and they did not report any issues.

Post complaint

On 5 July 2022, the ASB team informed the resident that despite several visits, they had been unable to gather evidence of ASB and therefore the matter would be referred to the safer neighbourhood police team who would monitor the situation during their evening patrols of the area. It said it was satisfied that it had appropriately investigated the resident’s reports but that it did not have enough evidence to pursue enforcement action against neighbour.
On 6 July 2022, this Service agreed to investigate the resident’s complaint. In December 2023, the resident informed this Service that the flooring had never been boarded as agreed and the fireproofing was not undertaken to the neighbour’s property. As a result, the resident moved out of the property into private rented accommodation.

Assessment and findings

Scope of the investigation

This Service recognises that this situation has caused the resident significant distress. Aspects of the resident’s complaint relate to the impact of her living conditions on the health of herself and her child. Where the Ombudsman identifies failure on a landlord’s part, we can consider the resulting distress and inconvenience. The Ombudsman accepts that the resident and her child have respiratory problems. Unlike a court, however, we cannot establish what caused the health issue to worsen or determine liability and award damages. This would usually be dealt with as a personal injury claim through the courts. Though the Ombudsman is unable to evaluate medical evidence, health conditions can be taken into account when considering the resident’s circumstances.

The landlord’s handling of the resident’s reports of smoke ingress to her property.

The resident’s complaint was that the neighbour smokes in their property. She said that the odour permeates her property and has contributed to her and her child developing respiratory problems. It evident that this has been distressing for the resident. It is also understandable that the resident was concerned about the impact of passive smoking on her health and the health of her child.
While smoke-free legislation prohibits smoking in publicly accessible buildings and workplaces, it is not unlawful to smoke in residential properties. While the landlord has not provided a copy of its standard tenancy terms, in the absence of any terms prohibiting this, the landlord could not take action against the neighbour for smoking tobacco in her home. While it is theoretically possible for smoking to have such an impact on neighbouring properties as to constitute a statutory nuisance, the threshold for this is high and this would be a matter for the Local Authority to investigate under its environmental protection powers. The resident had informed the landlord in December 2021 that she had approached the local authority’s environmental health team. The landlord asked that the resident update the landlord as to the local authority’s involvement, which was appropriate in the circumstances.
The landlord could only therefore consider measures to reduce smoke drift between properties. This presented challenges given the layout of the building. The property is a Victorian semi-detached house that had been converted into flats. Given the structure of the property the landlord concluded that it could not be made airtight.
In response to the resident’s reports, the landlord acted reasonably in carrying out a fire safety inspection of the property. It concluded that, as the property was a house conversion, fireproofing was not required and standard measures such as having a smoke alarm and an evacuation plan were sufficient to meet its legal obligations. However, it did agree to fireproof the resident and her neighbour’s flat by blocking and sealing gaps in attempt to reduce the amount of smoke entering her property. This was a proactive step for the landlord to take.
The landlord could not take action to compel the neighbour to allow access to her property to undertake fireproofing as it was not obliged under the tenancy agreement or by other legal requirements to undertake these works.
The landlord did, however, arrange for its surveyor to attend both properties to consider any other works that could be undertaken to improve ventilation and reduce smoke ingress. This demonstrated that the landlord was solution focused. In December works were raised, including replacing skirting boards, unblocking air vents and sealing floorboards. It is unclear however that these works were completed. The landlord did, however, undertake works to install new extractor fans in the resident’s bathroom and kitchen to aid ventilation.
Although the landlord had agreed to board the flooring in its stage one complaint response, these works were never undertaken, despite the resident chasing this. While the landlord was not obliged to board the flooring as there was no indication that the flooring was in disrepair, having agreed to do so, the resident had an expectation that these works would be completed within a realistic timescale. The landlord’s failure to do so was unreasonable.
In addition, the landlord’s communication with the resident fell short of the standard the Ombudsman would expect. There was no co-ordinated approach to address the issue, given that at least three teams were involved. There was ineffective communication between teams which led to delays and a lack of clarity about the steps the landlord would take. There was no one point of contact to update the resident. This meant that information was either not passed on or there were delays in it being shared. The resident still anticipated works to the neighbours flat would be undertaken when the landlord’s internal communication indicated that this would not happen. While this information appears to have been shared with the resident by telephone, it would have been appropriate to follow this up in writing. The landlord had a responsibility to manage the resident’s expectations, particularly in relation to matters which involve several of the landlord’s services. Its failure to do so would have caused the resident frustration and uncertainty.
This Service makes a finding of maladministration in relation to this aspect of the complaint. The landlord has apologised and offered £150 in compensation for the delay in service delivery and the resident’s time and trouble. While it is positive that the landlord sought to offer redress, the amount offered does not proportionately compensate the resident for the distress, inconvenience, time, and trouble she had experienced. The Ombudsman therefore orders that the landlord pay the resident an amount of £300 in compensation.

The landlord’s handling of the resident’s reports of anti–social behaviour

It may help to firstly clarify that the Ombudsman’s role is not to investigate the actual reports of anti-social behaviour or to assess the credibility of the reports made by the resident. The Ombudsman’s role is to consider the landlord’s response to the reports it received, and to the formal complaint, and consider whether its response was reasonable in all the circumstances of the case. In doing so, the Ombudsman will consider whether the landlord acted accordance with its policies and its obligations under the tenancy agreement and any relevant legislation.
In considering the landlord’s handling of this aspect of the complaint, it is important to clearly note that the Ombudsman starts from the position that it is not the role of the landlord to investigate and determine whether the resident’s neighbour has engaged in criminal activity. Rather the landlord’s obligation is to take appropriate action where there are allegations, or findings, of criminal conduct.
The resident’s reports that she could detect cannabis smoke from her neighbour’s property do not appear to have been referred to the ASB team in a timely way. In its complaint response, the landlord confirms that this delay was due to poor internal communication.
On acknowledging the resident’s report, the landlord contacted the resident in December 2021 and outlined the action it proposed to take which included:
1. Opening an ASB case and setting a date for case review.
2. Requesting that the resident keeps diary sheets of further incidents.
3. Sent an enquiry to the police.
4. Liaised with the repairs and fire safety team.
5. Wrote to the neighbour to ask that she responds to the report and sent follow up correspondence and undertook visits.
All these steps were appropriate to gather additional information and to establish what further action should be taken and were in line with the landlord’s ASB policy.
The landlord had undertaken several visits to the property, during the day and out-of-hours, but had not witnessed cannabis use. It also liaised with the police who had confirmed that they had attended the property on six occasions but had not been able to detect the use of cannabis. The landlord also made enquiries of other neighbours who did not raise any concerns. The landlord concluded that, based on its interview with the neighbour, the information gathered from visits, the police and neighbours, there was insufficient evidence to take action against the neighbour. While this was frustrating for the resident, in the Ombudsman’s view, this was a fair conclusion to reach. Landlords have limited resources, and so it is reasonable that ASB investigations are concluded where all appropriate steps have been taken to investigate and resolve the issue, even where there may be ongoing incidents. In the circumstances, it was important that the landlord considered any ongoing risk and took steps to mitigate this. The landlord did this by informing the resident that the police would continue to patrol the area regularly. The resident has since informed this Service that she was disappointed with the lack of contact from the police after the ASB team closed her case, however this was outside of the landlord’s control.
In the circumstances and noting that it had not been established that there had been criminal activity by the neighbour, the Ombudsman is satisfied that the landlord had taken reasonable steps to investigate and resolve the matter. While there was an initial delay in raising an ASB case, outside of the landlord’s target response times, this delay had a minimal impact and the landlord apologised for this and offered an amount of £50 in compensation which satisfactorily resolves this aspect of the complaint.

The landlord’s complaint handling

The landlord failed to respond to the resident’s complaint when this was raised on 16 February 2022. It was only after the intervention of this Service, when the complaint was raised again on 22 March 2022, that the resident received a response on the 8 April 2022. The landlord failed to acknowledge the resident’s request to escalate her complaint when it was initially raised, only doing so when the resident raised the request again on 20 May 2022, 22 days after her initial request. This was a failing as it caused the resident to have to invest unnecessary time and trouble in chasing a response.
In the landlord’s stage one response, it indicated that fire-proofing works had been undertaken to the neighbour’s property. This was inaccurate and contradicted information it had previously shared with the resident.
The Ombudsman’s Complaint Handling Code states that landlords must consider a complaint, or complaint escalation, unless an exclusion ground applies meaning that there is a valid reason not to. Such reasons would include the length of time since the issue arose or that legal proceedings had started. The landlord declined to escalate the resident’s complaint. Its complaint procedure outlines circumstances where it would not escalate a complaint. It is questionable, however, whether the circumstances applied. While the resident had asked for an increase in compensation, which would have been a reason not to escalate the complaint, she had also complained that the landlord had not completed works to the floorboards as agreed in its stage one response. In the Ombudsman’s view, this constituted grounds to escalate the complaint and the landlord’s decision not to do so was a failing.
The landlord’s complaint handling was defective. It delayed in raising or escalating the complaint, it failed to board over the resident’s floorboards as agreed in its stage one response and it declined to escalate the resident’s complaint unreasonably. Taking this into account, there was maladministration in the landlord’s complaint handling for which compensation is warranted. The Ombudsman orders that the landlord pay the resident £200 in compensation.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in its handling of the resident’s reports of smoke ingress to her property.
In accordance with paragraph 53(b) of the Scheme, in relation to its handling of the resident’s reports of ASB, the landlord has made an offer of redress prior to this investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.
In accordance with paragraph 52 of the Scheme, there was maladministration by the landlord in its complaint handling.

Reasons

The landlord had investigated the resident’s complaints about the impact of smoke ingress into her property. It had undertaken works to attempt to reduce the impact of smoke penetration to her home by ‘fireproofing’ the property. However, its communication with the resident was poor and having agreed to do works to the flooring, its failure to do so was unsatisfactory.
While there was initially a delay in the case being referred to the ASB team, once a case was opened it took several steps in response to the resident’s complaint. In the circumstances, however, and noting that it had not been established that there had been criminal activity by the neighbour, the Ombudsman is satisfied that the landlord had taken reasonable steps to investigate and resolve the matter.
There were failings in the landlord’s complaints handling. It did not respond to the resident’s complaint or escalate it in line with its target timescales and it took this Service’s intervention for it to issue a formal response. Further, the landlord’s complaint response contained some inaccuracies which raised the resident’s expectations.

Orders and recommendations

Orders

Within 20 working days of the date of this report the landlord is to:
1. Pay the resident an amount of £500 which comprises of:
  1. £300 to compensate the resident for her time and trouble, distress, and inconvenience for its service failures in relation to the works to address the smoke issue.
  2. £200 in respect of the landlord’s complaint handling failures.
  3. This replaces the landlord’s previous compensation award of £150.
2. Inform this Service once payment has been made.

Recommendations

In addition to the amount outlined above, it is recommended that the landlord pay the resident £50, as previously agreed, in respect of delays in responding to the resident’s ASB complaint. This amount should be paid within 20 working days of the date of this report.