Nottingham Community Housing Association Limited (201905934)

REPORT

COMPLAINT 201905934

Nottingham Community Housing Association Limited

31 August 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

The resident has complained about:
1. The landlord’s response to their reports about noise from doors in the building.
2. The landlord’ response to their reports of the smell of cigarettes and alleged drug taking entering their home.

Background and summary of events

The resident reported excessive noise from doors closing in the building in 2018:
1. They reported door banging (which they attributed to it being a new build) as part of an anti-social behaviour (ASB) report about another neighbour in May 2018.
2. The resident submitted noise diaries for the end of May 2018 with several pages of ‘loud thud’ incidents noted.
3. The landlord’s ASB log in June 2018 notes ‘lots of emails’ including about the door banging, and that it had visited the flat below to check the door on 5 June 2018.
4. The resident and landlord met in July 2018 about a range of issues. The landlord’s follow up letter stated: the doors may have been swelling in hot weather meaning residents had to slam them to close them and this had been raised by other residents; a further meeting with the original developer and the landlord’s development team was due; if possible the landlord’s repairs team could put cushioning in the door frame; the repair team would also replace some sealant around the door frames.
5. The resident’s GP raised the resident’s various concerns, including the banging doors, at the resident’s request in October 2018.
6. The landlord’s November 2018 update confirmed several residents had reported having to slam doors during the hot weather. It explained these reports had decreased with the cooler weather, and that the developer was in the process of adjusting any doors where this had been reported.
The resident also raised the smell of cigarettes entering their home in 2018:
1. The July 2018 meeting and follow up letter noted the resident had discussed the issue with their neighbour and hoped it was resolved. It referred to the smell occurring when both properties’ windows were open.
2. The resident reported they could smell cannabis as well as cigarette smoke on 29 June and 14 December 2018.
The resident continued to report concerns about both the door noise and the smell of cigarettes and cannabis in 2019:
1. The landlord wrote to all residents warning them that smoking cannabis was a breach of their tenancy in January and May 2019.
2. The landlord arranged a visit in January to check for gaps / seal the skiting to the flooring to stop the smell passing from one flat to another.
3. In June 2019 they reported their neighbour ‘smoking drugs.’
4. The resident stated they had reported the alleged drug taking to the police in: June, July and December 2018; and April, May, and June 2019.
The resident submitted a complaint to the landlord’s HR department in May 2019. Their single point of contact responded in June 2019 to explain the skirting boards had been sealed for the smoke smell, and the developer had adjusted the doors. It also noted they had not received any contact from the resident since January 2019.
The resident complained to the Ombudsman about the continued door banging and smell of smoking in August 2019.
The formal complaint was raised with the landlord and it sent its stage 1 response in September 2019. It explained:
1. The landlord had inspected and adjusted the doors in the building following the resident’s reports.
2. The landlord had also arranged for the original developer of the building to adjust the doors. The developer had stated the doors were correctly installed to the landlord.
3. The landlord had since asked other residents and had not received any other complaints about the noise from the doors.
4. The landlord explained the smell of cigarettes may come from people outside or in their own homes and it could not prevent them from doing this. It also explained the building had been ‘built to standard’ (presumably referring to it receiving building control approval during its construction) and therefore the individual properties were considered appropriately sealed from each other. The landlord had also arranged for a contractor to attend to check for and seal any gaps between the resident’s and the downstairs’ property.
The resident escalated their complaint in October 2019. They explained:
1. The landlord had offered to update the resident following the developer’s repairs in November 2018, but they did not receive an update. They explained the downstairs door continued to bang excessively.
2. They continued to smell smoke from the flat below. They disputed the stage 1 response that contractor had investigated all of the property, and reported that the contractor had only sealed the areas the resident had highlighted around the skirting boards. The resident highlighted an email from the landlord’s repair team which stated the contractor was only attending to seal the skirting boards (ie not to check the whole property for potential gaps as the stage 1 response had implied they had). The resident stated the contractor did not open cupboards or inspect pipes as stated in the stage 1 response. They highlighted advice they had received from the local Building Control department about how the properties should not allow smoke between them.
The landlord’s final response was sent in January 2020. It explained:
1. It had investigated the design/build of the building as requested by the resident in their escalated complaint. It had visited the property downstairs in December and had not found any ‘unstopped voids’ or areas where smoke could pass between the properties. The landlord explained it could not say why the resident could smell smoke in their home, but suggested the trickle vents required in the windows might allow the smell if someone was smoking outside.
2. It had checked all the doors during its visit for the stage 2 response. The doors all ‘appeared to be well fitted,’ and the neighbour did not bang their door when the landlord visited to investigate the cigarette smell.
3. No other residents had reported either the smell of smoking or noise nuisance from door banging.

Assessment

Door banging

The resident moved into the newbuild property in May 2018. They raised concerns about ‘thudding’ noises and door banging from the start of their tenancy.
By July 2018 the landlord had confirmed this was an issue for other residents in the building (ie that it appeared to be a repair and not an ASB issue). The landlord then confirmed by November that a cause had been identified (the frames changing shape due to the heat) and that the original developer had addressed some but not all of the affected doors.
The landlord has not provided the specific information about when the developer completed its works to the affected door frames, and it has not provided the communication between itself and the developer.
Repair issues that occur within the first year of a property are more complicated. The landlord will be covered by its defect liability with the developer. This means that the landlord cannot simply carry out repairs as it might do normally as this may invalidate the warranty with the developer. Any repairs issues that might be considered a defect from the original construction must be passed to the developer to investigate and resolve if appropriate. This means the actual solution to an issue is not always the direct responsibility of the landlord. Instead its role is to ensure that residents are kept up to date, and that it communicates with the developer to ensure it completes its role.
It is not uncommon for non-emergency defect repairs to be left until the end of the defect liability period to allow them all to be addressed in one go by the developer. This would include repairs to help doors close, but where the doors could still be closed without the repair. In this case that would have been in May 2019. However the landlord did arrange for the developer to completed the repairs in from October and into November 2018. As the repairs were required to various residents’ doors the developer would have also had to arrange access separately with each resident that had reported the difficulty with the doors.
Therefore given the status of the property as a newbuild, and given the nature of the repair involved, the landlord’s investigation and response in 2018 was a reasonable response to the reported door banging.
The resident has stated that the landlord did not update the resident as offered in its November 2018 email. There are no emails on file to show the landlord did proactively update the tenant as it should have given its offer. Equally however it appears the resident did not contact the landlord until May 2019, at which point the landlord replied to confirm the developer had adjusted the affected doors and the neighbour had been asked to close not slam their door.
By the time of the formal complaint (in August/September 2019) the landlord stated that it had not received further reports from other residents about the doors. Therefore, given the work completed on the doorframes, it considered the matter closed.
The landlord should have updated the resident as offered in November 2018. However while this is an oversight in the landlord’s service it is not sufficient on its own for a finding against the landlord. The landlord had already explained its understanding of the door issue and how it was in the process of being resolved. That was a reasonable response to the issue.
The landlord can only respond to the reports it receives about a repair issue. Therefore it was reasonable for it to assume the repair issue was resolved until it received the May 2019 and August 2019 complaints where the resident stated the issue continued. The landlord should have taken the May 2019 email as a formal complaint and should not have waited until the follow up from the resident and the Ombudsman in August 2019. I have included a recommendation as a result of this below.
The stage 1 response explained the action that had already been taken. The stage 2 response was based on a further visit where the doors were checked again by the landlord’s staff, as was the neighbour’s use of their door.
Each resident will have a different level of tolerance for noise. One unfortunate aspect of living in flats is that there will be more unavoidable noise transference between properties. Therefore in this context the landlord must follow an evidenced based approach to ensure any action is proportionate and appropriate. It investigated and took action following the initial reports of noise from the doors. When the resident then re-raised these concerns in 2019 the landlord checked the doors as part of the complaint response but did not identify any unreasonable levels of noise. Given that investigation, together with the past repairs and the lack of corroborating reports from other residents, it was reasonable for the landlord to say it had taken all the action it could. It had no obligation to complete further repairs without appropriate independent expert advice (for example for the local authority’s noise team or an occupational therapist showing that the noise was unreasonable or that it was affecting the resident’s health).

Smell of smoke

The landlord’s initial response to the resident’s reports of the smell of cigarettes and cannabis in their home was reasonable. The resident’s early reports noted how they could smell the smoke when the windows were open. Therefore it was reasonable that the landlord approached the issue by speaking to the neighbours, and by also trying to manage the residents expectations. As the resident has acknowledged, the landlord cannot stop other residents from smoking and if they do so outside or in their homes with the windows open it is likely some of the smell will enter the resident’s home through trickle vents or open windows.
As the resident continued to report the smell of smoke the landlord arranged for works to the resident’s home in January 2019 (resealing the skirting). The resident has disputed the extent of these works however. The landlord’s stage 1 response stated the contractor had checked the property including pipes and cupboards for any gaps. The resident disputed this and highlighted an earlier email from the landlord prior to the work that stated it had been able ‘to identify a company willing to undertake the cleaning and resealing the skirting boards to the flooring.’
This was a reasonable question by the resident. The resident’s recollection and the information from the time suggest the contractor would only be resealing the skirting. The landlord has since in its formal responses implied the contractor completed a more thorough investigation. The landlord failed to respond this question in its resulting final response.
The resident arranged for the local Environmental Health Department to attend in September 2019. This visit did not result in any action against the landlord by Environmental Health. The landlord also provided the details of the Building Control approval the development had received.
Therefore it was reasonable for the landlord to explain the property had been constructed as required. Landlords should base their actions on appropriate evidence and there was no independent expert advice recommending any specific works were required to the property in light of the resident’s reports of the smell of smoke. Therefore the landlord has not failed to complete any repairs to the property.
In terms of the reports of alleged drug taking, the landlord has explained this is primarily a police issue as it is a criminal matter. It is reasonable for the landlord to base any tenancy action on the outcome of a police investigation into reports of any criminal activity. As the landlord did not receive any specific, independent supporting evidence about a resident taking drugs it was reasonable that the landlord explained it could not take any formal action following the resident’s reports of the smell. The landlord did write to all residents to remind them of their tenancy obligations which was a reasonable course of action given the limited evidence.
Therefore overall the landlord has not failed to take any specific action in response to the resident’s reports of the smell of smoking in their home. However the landlord has failed to respond in full to the associated formal complaint, in that it has not provided the supporting evidence for the stage 1 response’s statement that it had checked the whole property, given this has been disputed by the resident. This means the resident has experience some time and trouble pursuing a reasonable question as part of their formal complaint and some form of redress would be appropriate as part of now responding to this point.

Determination (decision)

I can confirm in accordance with paragraph 54 of the Housing Ombudsman Scheme:
1. There was no maladministration in the landlord’s response to the resident’s reports of noise from doors in the building.
2. There was service failure in the landlord’ response to the resident’s reports of the smell of cigarettes and alleged drug taking entering their home.

Orders and recommendations

In light of the determination above I have ordered that, within 4 weeks, the will:
1. Pay the resident £50 to acknowledge the inconvenience of not having their question about the stage 1 response’s summary of the contractor’s visit answered.
2. Either provide the evidence from the time to support that the full check for gaps in the property was completed during the January 2019 visit, or agree a time for a follow up visit where this check can now be completed as previously offered.
I would also like to recommend that the landlord consider:
1. Reviewing its complaint handling training and process to ensure that all resident complaints can be handled correctly by all staff. The resident in this case submitted a complaint in May 2019 that was not picked up as a formal complaint until August 2019.