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London Borough of Hillingdon (202110990)

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REPORT

COMPLAINT 202110990

London Borough of Hillingdon

12 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

  1. The complaint is about:
    1. the landlord’s handling of the resident’s reports of soot-like deposits falling onto his balcony;
    2. the resident’s service charge including a charge for the landlord’s on-site meal provision, despite the resident’s dietary requirements meaning he was unable to eat the meals provided.

Jurisdiction

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
  2. After carefully considering all the evidence, this service will not investigate the complaint about the resident’s service charge including a charge for the landlord’s on-site meal provision. This is in accordance with paragraph 42(e) of the Housing Ombudsman Scheme (‘the Scheme’), which states that the Ombudsman may not consider complaints that “concern the level of rent or service charge or the amount of rent or service charge increase”. The resident has stated that he does not believe he should have had to pay that element of the service charge at all. Paragraph 42(g) of the Scheme also sets out that it is outside of the Ombudsman’s remit to investigate complaints that “concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure”. The matter of whether the level of service charge set by the landlord was fair, considering the resident’s inability to access the relevant service would be one for the First Tier Tribunal (Property Chamber) to consider. This service is unable to make a finding on the Tribunal’s behalf. The resident may be able to refer his concerns about the service charge to the tribunal if he wishes to pursue this matter further.

Background

  1. The resident was a secure tenant of a flat within a block of flats that was owned by the landlord. Since the events as described in this report took place, the resident has left the flat and moved to alternative accommodation. He remains a tenant of the landlord.
  2. On 25 November 2021, the resident contacted this service to complain about soot falling onto his balcony and getting into his lungs. This service contacted the landlord and requested that it dealt with the resident’s complaint via its complaints procedure. The landlord contacted the resident on the following day to arrange an inspection at his home. This took place on 1 December 2021.
  3. On 3 December 2021, the landlord issued its stage one complaint response to the resident. Its inspection of the resident’s balcony had confirmed the presence of “soot-like deposits”. The landlord stated that it had assessed the deposits as being unrelated to the building but instead related to the local air pollution levels. The landlord confirmed that the resident’s building had been built in accordance with relevant regulations. It had the required natural and mechanical ventilation systems. The landlord stated that its records showed that the filters of the mechanical system were being replaced every 12 months as recommended, with the last replacement having taken place in May 2021. The landlord expressed its regret that the resident was experiencing these deposits but believed it had done everything possible to mitigate them.
  4. On 27 January 2022, this service contacted the landlord to ensure it had received a letter from the resident following its stage one complaint response. In the letter, the resident stated his dissatisfaction with the landlord’s response. He said that dirty filters in the mechanical ventilation units were blowing dirty air into people’s living spaces. He stated that the landlord had made no effort to reduce the amount of soot entering the building by installing a fence or hedge to limit the amount coming from the road. He said that he and other residents in the building were forced to keep the back door of the building open in order to strengthen mobile phone signal and this increased the level of soot coming into the building. He asked if the landlord employed an environmental officer. This service requested that the landlord escalated the resident’s complaint to stage two of its complaints procedure.
  5. The landlord issued its stage two complaint response to the resident on 10 February 2022. It confirmed its position that the soot was caused by general pollution in the area and that the landlord had done all it could through its ventilation strategy to reduce its effect on the resident. It stated that the issues the resident was experiencing with his mobile phone reception fell outside of its responsibilities as a landlord. It said that it did not an employ an environmental health officer specialist in the housing department, but there was one employed within the planning department of its organisation.
  6. On 16 May 2022, the resident wrote to the landlord stating his dissatisfaction with its lack of resolution for the soot problem. He said that he wanted an environmental officer to visit his property and assess the problem. He stated that the soot was very bad for those residents with breathing problems.
  7. The resident asked the Ombudsman to investigate his complaint. He has indicated to this service that he regularly visits the block of flats in order to see his former neighbours and he therefore continues to have an interest in resolving this issue.

Assessment and findings

Scope of investigation

  1. The resident’s landlord is a local council. The resident asked for an environmental health officer to attend his home to assess the soot deposits on his balcony as a way to resolve his complaint. This service can assess the landlord’s handling of the resident’s request. However, our remit is limited to assessing the landlord based on its functions as a social landlord only. Its environmental health and planning departments are local council functions that exist outside of its remit as a social landlord. Therefore, this service will not be able to assess the actions of these departments. If the resident is unsatisfied with the actions or inaction from these particular departments, he would need to refer any complaint (when it has completed the landlord’s internal complaints procedure) on this matter to the Local Government and Social Care Ombudsman (LGSCO), who may be able to investigate. The LGSCO can investigate complaints about local authorities’ other functions that do not directly relate to their role as social landlords.
  2. The resident’s original complaint to the landlord was also about matters concerning the landlord’s use of the flats on an upper floor of the resident’s building to house hospital patients, and an unoccupied flat in the building. The resident has confirmed to this service that he considers these issues to have been satisfactorily resolved via the landlord’s internal complaint procedure. Therefore, with the resident’s agreement, this service has not investigated these matters.

The landlord’s handling of the resident’s reports of soot falling onto his balcony.

  1. The resident was a secure tenant of the landlord, which meant the landlord was legally obliged to resolve reported issues of disrepair involving his property within a “reasonable” timeframe. The resident’s tenancy agreement stated that the landlord would keep the resident’s home and building “in repair and proper working order” and would carry out reported repairs “within a reasonable period of time after notification of the repair issue”.
  2. This service contacted the landlord on 25 November 2021 with details of the resident’s complaint about the soot on his balcony. The landlord responded by contacting the resident the next day to arrange for an inspection to take place at his home. The inspection took place three working days later. The landlord responded appropriately upon receiving its first report of the issue and did not delay in visiting the resident to assess the problem.
  3. The landlord took advice from a professional on the nature of the soot-like deposits affecting the resident’s balcony, which it was entitled to do. The deposits were assessed as being caused by local air pollution levels, which would be something considered to be outside of the landlord’s control. The landlord reassured the resident that the building met relevant regulations and had adequate ventilation systems, with the filters being changed regularly as required. In its stage two complaint response, the landlord said that by ensuring the resident’s building complied with all relevant regulations, it had done everything it reasonably could to mitigate “the worst excesses” of any impact the soot was having on the resident. This meant that the ventilation measures in place were likely to be already reducing the amount of soot that was reaching the resident’s balcony. The landlord could not be held accountable for these deposits if they were caused by pollutions levels in the area and it was likely to be the case that other residents in the area would be experiencing a similar issue. The landlord took reasonable steps to reassure the resident and it responded appropriately to his initial concerns.
  4. The resident stated that the poor mobile phone reception in the area meant that residents in the block of flats were often forced to open the back door of the building in order to successfully receive signal to their mobile phones. In doing so, the residents were exposed to the soot deposits more than they normally would be had they not needed to open the back door as much. The landlord responded to this by stating that the quality of mobile phone reception fell outside of its responsibilities as landlord. This was a reasonable response from the landlord as it would have had no means of improving the mobile phone reception in the area. The resident would have needed to have contacted his mobile phone service provider to discuss the issues with lack of reception and to see if this could be improved. The resident may also have been able to consider changing mobile phone service provider to a different provider that may have had better network coverage in the area.
  5. The resident suggested to the landlord that it could take measures to reduce the amount of soot settling on his balcony, such as a hedge or a fence to limit any deposits coming from a nearby road. He also asked if an environmental health officer could attend his property to further investigate this suggestion. The resident said that he spent half an hour on the phone to the landlord to see if an environmental health officer would visit him but was unsuccessful in this. The landlord responded by informing the resident that there was not an environmental health officer in the housing management department, but there was one in the planning department. This service is unable to make a finding on whether there were reasonable measures that could have been put in place that may have made a difference to the level of soot that was being deposited on the resident’s balcony as this would be most appropriate for environmental health to investigate. Environmental health are best placed to assess threats to health and safety such as air pollution. In its capacity as a social landlord, the landlord is not required to make improvements to the building such as adding a hedge, it is only required to maintain it.
  6. While the landlord acted reasonably with regards to the resident experiencing soot-like deposits on his balcony, the resident had made statements about how he felt the soot was affecting him. It would have been reasonable for the landlord to have at least signposted the resident to the appropriate department or officer so he could discuss his concerns directly with them. Therefore, there was a service failure in its handling of the resident’s concerns about the impact of the soot on his health. It will be appropriate for the landlord to apologise to the resident for not forwarding his concerns on to the environmental health officer in order for them to respond to him directly, as the resident had requested on more than one occasion.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s reports of soot falling onto his balcony.

Orders

  1. The landlord should apologise to the resident for not taking reasonable action to meet his request to have his concerns about the soot assessed by an environmental health officer. The landlord must issue its apology to the resident, and provide a copy to the Ombudsman, within 28 days of the date of this determination.