Kingston upon Thames Council (202007847)

REPORT

COMPLAINT 202007847

Kingston upon Thames Council

30 November 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. This complaint is about the landlord’s handling of the resident’s reports that his property was uninhabitable due to chemical contamination.

Background and summary of events

Background

2. The resident is a secure tenant whose tenancy began on 15 April 2013. The property is a two-bedroom ground floor maisonette and the landlord is a local authority
3. The landlord’s repairs policy shows that it is responsible for maintaining ‘the structure of the property, … sanitary appliances, … gas appliances and … drains’.
4. The landlord has an anti-social behaviour (ASB) policy that shows that it ‘will investigate promptly and will use a variety of remedies to tackle anti-social behaviour, including preventative and enforcement measures’. It includes drug dealing as a ‘category one’ example of ASB and says that it will work in partnership with other agencies and use a combination of non-legal, and potentially legal, remedies to address ASB.
5. The landlord’s allocations scheme shows that it reserves the right to make direct offers of accommodation to residents and that residents can join the housing register with an increased priority if they are living in unsatisfactory housing conditions or need to move on medical grounds.
6. The estate in which the resident’s block is based is due to undergo regeneration with the resident’s block due for possible demolition from 2023. The landlord has a related rehousing policy that shows its regeneration team will provide residents with six months’ notice before they are required to move, undertake a housing needs assessment and offer support to move.
7. The landlord has a two-stage complaints procedure where it is required to provide responses within 15 working days at both stages. The policy shows that it can agree a reasonable extension to this timescale with the resident if there are ‘clear and justifiable’ reasons.
8. The Ombudsman is only able to consider matters which have exhausted the landlord’s complaints procedure. This is so that we can be sure the landlord has had a reasonable opportunity to resolve the issues internally before we intervene. This Service cannot therefore make a determination on the handling of new events that arose since the complaint exhausted the landlord’s complaints procedure in January 2021 – nevertheless, these events have been summarised below for context.

Summary of Events

9. The landlord’s internal records show that it recorded a report via the fire brigade of allegations of a ‘chemical lab’ on 14 May 2020 and that it was asked to investigate the matter.
10. The landlord’s records show that it noted on 10 June 2020 that:
    1. the resident had made reports since ‘early May’ of a ‘chemical smell’ emanating from a neighbouring property that was affecting his bathroom, which the resident suspected was due to a ‘meth lab’
    2. it had checked gas safety compliance checks were up to date
    3. it had interviewed the neighbour who advised he was unaware of the smell but noted there had been a radiator leak for which a repair order had been raised
    4. the neighbour made counter-allegations
    5. the resident continued to make reports so a surveyor attended the property and recommended checks be made to pipework behind a bathroom access panel which the resident was resistant to as he wished for the drug manufacture allegations to be investigated
    6. it attempted to visit the neighbour on 27 May 2020 but he was out so it interviewed another neighbour who reported no problems
    7. it visited the resident on 3 June 2020 and had only been able to detect a possible ‘slight musky smell’ which it thought could be related to a ‘slight damp issue’ but the resident said he did not wish for them to investigate for a possible leak
    8. it inspected the neighbour’s property (noting it went into all rooms) that day and found no evidence of illegal activity although it did conclude there was a ‘slight glue type smell’ which it attributed to guitar adhesive that it witnessed
    9. on the same day, it was unable to evidence any signs that chemicals had been thrown down onto the balcony area outside the resident’s property.
11. The landlord’s records show that it shared information with the Police on 8-9 June 2020 about steps it had taken to investigate the allegations to date.
12. The landlord’s records show that it noted on 6 July 2020 that the resident had continued to report a chemical smell and that it recorded on 8 July 2020 that there had been no other complaints from neighbours.
13. The landlord noted that it completed an annual gas safety check on 9 July 2020 – it asked the engineer to report back any abnormalities but no problems were found.
14. The landlord’s records show that it inspected the resident’s property again on 21 July 2020 and that it was only able to detect a ‘slight musty smell’ consistent with the property being closed up.
15. The landlord recorded that its contractors completed a check of the ducting from the top floor of the block down on 14 September 2020 and that ‘nothing abnormal was found’.
16. The landlord’s records show that the neighbour moved out on 20 September 2020 and the flat remained empty. It added that it informed the resident of this.
17. The resident submitted a complaint to the landlord on 12 October 2020. He advised that his property was unfit to live in from 14 May 2020 but little had been done to make it safe for him and his grandson to return. He said he had been advised verbally by the landlord that he should return but he had not received a letter or evidence of the tests the landlord claimed to have carried out.
18. The landlord issued a stage one complaint response on 19 November 2020. It said that this was in response to a request from the resident on 28 October 2020 for written confirmation he was safe to return to the property. It found that:
    1. the resident had alleged in May 2020 that his neighbour was running a drug manufacture laboratory
    2. a housing officer attended the neighbour’s property but the only issue found was a radiator leak which was remedied as a potential cause of the alleged chemical smell
    3. the Police also attended but were unable to corroborate the claim about the neighbour’s property
    4. staff had attended the property on 3 June 2020 and detected a ‘damp, musky smell’ but the resident had denied further investigations
    5. an unannounced visit was made to the neighbouring property on 3 June 2020 but nothing out of the ordinary was found and the resident had gone out by the time they returned to his property to offer these findings
    6. another visit was made to the resident’s property on 21 July 2020 when only a ‘musty smell’ was noted
    7. on 14 September 2020, a repairs contractor inspected the ducting between the property and the flats above but no defects were found
    8. the neighbour moved out on 20 September 2020 and it was of the view that no further checks were needed.
19. The resident asked to escalate his complaint on 20 November 2020 on the grounds that:
    1. the landlord’s suggestion that the chemical smell was linked to a radiator leak was ludicrous
    2. he denied that he had declined further investigations in June 2020
    3. he did not receive any update following the joint visit in June 2020, despite numerous chasers sent by him
    4. a plumber did attend his property on 14 September 2020 but advised that investigations were needed into the upstairs property and he later learned that access had been denied by the neighbour
    5. he was advised verbally on 25 September 2020 to move back into the property despite his requests for air testing and swab testing being unanswered
    6. he wanted scientific evidence that it was safe for him to return to the property.
20. The landlord issued a stage two complaint response to the resident on 4 December 2020. It concluded that:
    1. it had been unable to diagnose the cause of smells entering his property
    2. the resident could report the matter to a specialist environmental health team
    3. the upstairs property had been empty since September 2020 and it had not discovered anything unusual there
    4. although it undertook regular standard checks, it would not be able to assist further in this case until the resident or environmental health provided evidence of air pollution
    5. it would contact environmental health as a result of the complaint to see if they could diagnose the air problem and the complaint would remain open until these investigations were completed.
21. The landlord issued a follow up letter to the resident on 8 January 2021. It updated him as follows:
    1. environmental health had already attended in May 2020 and their investigation was inconclusive so the case had been closed with no further action
    2. it asked for the resident to provide ‘a diary of the time and date of the odour and a description of it’ or a witness statement so it could investigate further once lockdown restrictions allowed
    3. it could not assist further ‘until we have evidence of the air pollution to ascertain if it is related to the property/building’.
22. The landlord advised this Service on 2 February 2021 that it had re-opened its investigations to ensure it had done all it could to detect the cause of alleged fumes. It later advised on 9 February 2021 that it had ‘exhausted all reasonable checks on the property by asset services and environmental health’.

Summary of Events after landlord complaint process

23. The resident advised this Service in April 2021 that he returned to the property once per week to collect post and that he could still smell a mixture of toxic ammonia and damp smells. Between then and November 2021, the landlord has taken the following steps:
    1. inspected two flats above the resident’s property on 12 May 2021, confirmed its earlier findings that there were no odours emanating from the bathrooms or stacks and concluded that the flats were in fair condition
    2. advised the resident on 27 May 2021 of its findings regarding the inspection of empty properties surrounding his
    3. provided the resident with gas and electricity certificates for his property on 10 June 2021 and advised him that empty properties had been checked as part of the usual voids process and that these flats would not be re-let due to upcoming regeneration
    4. advised the resident on 14 June 2021 that no specialist testing had been identified because it was not clear what they would be testing for and that it would consider any medical evidence from the resident that showed the property was the likely cause of any health condition
    5. appointed an environmental company in July 2021 to consider the possibility of further testing – this company advised the resident on 16 July 2021 of some of the difficulties they would encounter with testing of the type the resident had requested and made a recommendation to the landlord on 6 October 2021 that a deep clean of the property be conducted
    6. advised the resident on 27 October 2021 that it had sourced a contractor to undertake a deep clean and added on 2 November 2021 that its contractor was responsible for cleaning of its void properties and had been asked to carry out an environmental deep clean with ‘risk assessment and related tasks’.
24. The resident raised concerns on 8 November 2021, following a joint visit to the property with operatives, that the landlord’s contractor was not experienced in conducting chemical clean-up operations, that the proposed steam cleaning was unsuitable and that a specialist company would be preferable.

Assessment and findings

25. The Ombudsman considers complaints about how a landlord has responded to reports of a problem. It is not the Ombudsman’s role to decide if the actions of the alleged perpetrators amounted to ASB and that this contaminated the resident’s property, but rather, whether the landlord dealt with the resident’s reports about this appropriately and reasonably.
26. The resident initially reported concerns about chemical smells in mid-May 2020 which he attributed to illegal activities. The landlord’s records indicate that it was aware that the emergency services were involved over the following weeks but its ASB policy shows that it was obliged to handle the reports as a ‘category one’ incident. Over the following month, the landlord took the following steps:
    1. inspected the resident’s property twice
    2. interviewed the alleged perpetrator
    3. inspected the alleged perpetrator’s property
    4. conducted an external site visit to consider the allegations of chemicals being poured outside of the property
    5. liaised with the emergency services.

There is little evidence of any updates that the landlord provided to the resident after these actions. Nevertheless, these were all reasonable actions on the part of the landlord to investigate the resident’s reports that ASB was impacting his living conditions.

27. Although the landlord was unable to corroborate the resident’s allegations, it continued to remain involved during July-September 2020 by interviewing a potential third-party witness and asking its gas engineer to look for any matters of concern. These actions were again reasonable and demonstrate that the landlord remained willing to investigate the resident’s ongoing concerns.
28. The landlord obtained no evidence through its own investigations, or from other agencies such as the Police, to corroborate the resident’s allegations throughout the period of this complaint. It was therefore not obliged to take any enforcement proceedings against the resident’s neighbour. It became aware in late September 2020 that the neighbour had vacated and the flat would remain empty. Its advice to the resident that he could safely return to the property was appropriately based on this information and the lack of evidence it had obtained to indicate that there was chemical contamination of his property.
29. Although he advised he was not living at the property, the resident continued to report chemical smells after the departure of his neighbour in September 2020. The landlord said it had undertaken a void property inspection after the neighbour vacated and there is evidence that it conducted a further check on the former neighbour’s flat and another empty flat above the resident’s property in May 2021. It was reasonable for the landlord to continue its investigations despite its earlier findings and double check that the void properties remained empty – it was again unable to establish that drugs were being manufactured at the block so there was no service failure in it not taking further actions in this regard.
30. The landlord was aware at least as early as July 2020 that the resident was no longer living at the property because of the chemical contamination allegation. The landlord’s allocations policy shows that there may have been options for the resident to apply for housing priority or be given a direct offer for alternative accommodation. However, this would only have been relevant had there been evidence available to the landlord that the resident needed to move on medical grounds or that the property had become uninhabitable. Given the landlord had no evidence to support either criteria, there was no service failure on its part in it not re-housing the resident. Its approach to attempt to reassure the resident by informing him over subsequent months that it had been unable to find evidence of drug manufacturing in neighbouring flats was therefore reasonable.
31. It is unclear when the resident may be required to move as part of the landlord’s estate regeneration plans or whether it considered bringing forward the housing needs assessment that it would be required to carry out for the resident as part of this process. There is no evidence to suggest that the landlord was obliged to do so but it may have been of benefit to discuss this option with the resident – a recommendation is made below in this regard.
32. There was no obligation on the landlord’s part to either conduct a deep clean, or procure chemical testing, of the property. Nevertheless, it continued to explore these options since the matter exhausted its complaints process albeit the resident continued to have concerns about the capabilities of the contractor the landlord appointed – a recommendation is made below in this regard.
33. In summary, the landlord responded appropriately to the resident’s concerns about chemical contamination by investigating his allegations about the cause of the contamination and inspecting his property on several occasions. It has been unable to evidence either the ASB or the chemical smells reported – it was therefore not obliged to take further actions to make the property habitable.

Determination

34. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s reports that his property was uninhabitable due to chemical contamination.

Reasons

35. The landlord undertook appropriate investigations into the resident’s reports that ASB had caused his property to become uninhabitable. It did not corroborate the resident’s reports despite these investigations and was therefore not required to take any further actions to make the property habitable.

Recommendations

36. The landlord to consider whether there is an option to discuss the potential for a move for the resident as part of its regeneration scheme and to advise the resident accordingly within six weeks of the date of this report.
37. If it has not already done so, the landlord to respond in full to the resident’s concerns (about its contractor) of 8 November 2021 within four weeks of the date of this report.

The landlord should confirm its intentions in regard to these recommendations to this Service within four weeks of the date of this report.