Westminster City Council (201914122)

REPORT

COMPLAINT 201914122

Westminster City Council

3 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. The complaint is about the landlord’s response to the resident’s reports of an unknown smell in her home.

Jurisdiction

2. 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.
3. In the resident’s correspondence she referred to historical issues of smells in the property going back to 2018, but there is no evidence of a formal complaint being raised until 17 April 2020.
4. In accordance with paragraph 39(e) of the Scheme, which states that the Ombudsman “will not consider complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable period, which would normally be within six months of the matters arising.” In view of the time periods involved in this case, taking into account the availability and reliability of evidence, this assessment does not consider any specific events prior to October 2019.The historical issues provide contextual background to the current complaint, but the assessment is focussed on the landlord’s actions in responding to the more recent events and, specifically, to the formal complaint.

Summary and Background

5. The resident is a secure tenant of the landlord since 1995 and occupies a one- bedroom purpose-built ground floor flat in a low-level block. 
6. On 21 November 2019 the resident’s MP wrote to the landlord. She explained that the resident had complained to her about a smell in her home which the resident claimed to be emanating from her neighbour’s property. The resident had told the MP she had been reporting the issue “for over one year”. The MP asked the landlord to provide the resident “with any related advice or assistance that she may require.”
7. The landlord responded to the MP on 28 November 2019. It explained that its operatives had attended the resident’s home on 9 August 2019, and that “In relation to the bad smell, this was not raised as an issue when [we] attended in August and having checked our systems, we can confirm that no repairs have been reported in the last 12 months in relation to this issue.”
8. On several further dates: 10 February, 25 February, 3 March 2020, emails between this Service, the landlord and the resident, document her continued dissatisfaction with the smell issue. The landlord was encouraged to respond to the resident and address her concerns. We passed on to the landlord the resident’s explanation that the smell was making her feel ill, and had led her to start sleeping in her living room.
9. The landlord wrote to us on 19 March 2020, explaining the actions they had been taking. They confirmed that the resident’s previous concerns about the smell had been taken as MP enquiries rather than a complaint. They said that officers had attended the resident’s home on several occasions but found no evidence of the smell (they did not provide dates of these visits). In response to earlier correspondence from this Service, the landlord had arranged another visit by two officers, on 11 March 2020, at 15.30. The landlord explained that “During the visit [resident] expressed that a strange smell had been irritating her and when asked to describe the smell, she was unable to. Both officers were unable to identify a strange or awful smell while at the property, however the resident did advise that the scent is stronger in the early mornings. In view of this, we will arrange a further joint visit and provide you with an update of the outcome.”
10. This Service rang the resident on 8 April 2020 to discuss her complaint. She explained that in a visit to fix skirting boards in “about” November 2019 one of the landlord’s operatives had noticed a smell, which he thought might be cannabis. She acknowledged the landlord’s latest visit, but said its officers were meant to have visited again the following Monday. That hadn’t happened, and the landlord eventually   explained that its officer had been unwell. The resident said the smells continued, and that she had to open her windows to make them dissipate. She thought that would be why the officers had not witnessed it when they visited in March. We told the resident we would liaise further with the landlord.
11. This Service wrote to the resident on 8 April 2020. We explained what the landlord had told us on 19 March about its visit. We also wrote to the landlord on 8 April 2020. We passed on what the resident had told us about the visits in November and March We said the resident wanted to escalate her complaint to stage two of the landlord’s complaint process, and asked it to do so, and to make contact with her by 23 April.
12. The landlord wrote to the resident on 17 April 2020. It acknowledged her dissatisfaction with how the matter had been handled, and that she wanted to escalate her complaint. It explained that the resident’s initial concerns were logged as an MP enquiry, and not part of the complaints process. Because of that it had logged the resident’s complaint at stage one of the process. It said it would provide a complaint response by 1 May 2020.The landlord sent its complaint response on 1 May 2020. It referred to having discussed the complaint with the resident on the telephone, and that its letter was confirmation of what they had talked about. It explained that its understanding from their discussion was that the smell was intermittent, and the landlord’s officers had visited on several occasions but had not been able to witness it. The smell was noticeable at various times of the day, but most prominently at night. The resident believed it was coming from her neighbour’s home. She could hear noises through the wall from the neighbour’s property, and she believed the neighbour might be trying to distress her. The landlord explained that its officer had visited the neighbour, who had not smelt anything unusual, and did not smoke. The landlord’s repair operatives had also not reported anything after their visit to fix the skirting boards. The landlord concluded that nothing in the information provided indicated a failing in anything it had done, and that the problem instead appeared to be a neighbour dispute. Nonetheless, the landlord proposed a range of actions to address the resident’s concerns. It said it would:
    1. With the resident’s permission, visit the neighbour again to inspect the kitchen and attempt to identify any smell that could be affecting the resident, or any lifestyle factors that could be responsible.
    2. Visit the resident again on the same day it visits the neighbour to try and witness the smell. It asked that on the day the resident not open her windows, to avoid any smells dissipating.
    3. Offer the resident and neighbour mediation; to possibly resolve any disputes between them.
13. The landlord explained that in the ongoing Covid19 lockdown it could not conduct visits at that time, but that it would “start the conversation with your neighbour immediately.” It said its officers would make contact within five days to discuss potential future visits, and any other support the resident might need. It concluded by assuring the resident it would do its best to resolve the issue, but that her complaint was not upheld. It explained how she could escalate her complaint if she remained dissatisfied.
14. Following the landlord’s complaint response the resident continued to correspond with this Service about her ongoing concerns with the smell problem. When she received the response to stage one she informed this Service that she remained unhappy. We suggested that she look through the response again and decide how she wished to proceed. We informed her that if she asked for an escalation and landlord failed to reply, or she got the stage two and remained unhappy she could approach us again. In the mean-time she should continue to liaise with the landlord and consider speaking to Environment Health if she considered the smell was a health hazard.
15. The resident called this Service on 4 August 2020 and told us that she had escalated her concerns to stage two. The response of the landlord was that someone would be coming out to see the property again, but she had heard nothing more. We explained that she should contact the landlord to find out what the next steps are and if it could provide a date for the visit. There were several further calls from the resident of a similar nature.
16. An internal email dated 15 October 2020 from one of the landlord’s officers to another states that the resident had continued to report the smells, and that an officer had made visits but not been able to witness the problem (no dates of these visits were provided). The officer noted that following the resident’s complaint “We did advise a further joint visit to both properties would be arranged to see whether the cause of the smell could be located. Not sure if this has occurred as it was during the Covid19 lockdown.”
17. Another internal email dated 17 November 2020 states that the resident had reported the smells again. A response the next day refers to a previous visit not finding evidence of the problem, that the resident had reported the smell waking her between 2am and 7am, the neighbour had been contacted and reported not witnessing the smell in her own home. A new visit to the resident was planned.
18. On 22 March 2021 the landlord acknowledged a request it had received from the resident on 16 March to escalate her complaint (a copy of the resident’s request has not been provided). It said it aimed to respond to the resident by 7 April, or would advise her of any delays. It also explained its understanding of the outstanding issues. Its explanation was not entirely clear, but seemed to be that the actions promised in the first complaint response in 2020 had not been done.
19. The landlord’s internal emails for 27 April 2021 show that during its complaint investigation one of the officers who had previously attended the resident’s property was asked for his accounts of what had occurred. He could not recall the specific dates of the visits. He explained that in the first visit the resident said the smell was coming from behind the bed and from wall. Neither he nor the colleague visiting with him could smell anything. He attended a second time on his own. He said the resident had moved the bed to the adjacent wall. He expected her to say the smell was coming from the same wall as previously, but she explained it was still coming from behind her bed, in its new position. He had tried to make a third visit, but the resident had been unavailable. He said he had not visited the neighbour.
20. The landlord sent its final complaint response on 18 May 2021. It referred to having discussed the complaint with the resident, during which:

“it was discussed that after your stage one complaint, two home visits were carried out by the housing team. During the first visit it was reported that there was no smell detected in your property, on the second visit you were unable to give us access. Following the stage 1 complaint, your neighbour was questioned at length regarding the allegations. Your neighbour explained that she did not smoke and was not aware of any smell or any intention to disturb you. A home visit was also conducted with your neighbour, and no smell was detected within her property. As a result, the matter was deemed closed by the housing team. I appreciate that you were not informed that our investigation had fully concluded with no cause for further action, please accept our apology for the lack of update on this matter”.

21. The landlord acknowledged the resident’s reports that the smell problem continued, and that it “is now predominantly experienced at night, after 1.00am, you can still smell it early in the morning after you wake up, before you open your windows.” It said that following its discussion with the resident one of the landlord’s officers had:

“visited you in your home at 9.00am on Thursday 6 May 2021 as you have advised that this is the best time to witness the smell. We advised you not to open your windows to contain the smell to help us identify and try to find where it could be coming from. During this visit, [officer] was unable to smell anything foul or suspicious, and so it appears that this problem does not relate to that property. To investigate this matter further, we will arrange for the Anti-social behaviour team to contact other residents within the building. This will enable us to find out if they are experiencing the same issue and help identify the source of the problem.

22. The landlord apologised for not telling the resident in 2020 that it had closed its investigation of the smell, after its visits had not found any evidence. It said that, otherwise, it had found nothing indicating any failings in its handling. It said it was committed to helping the resident resolve the matter, and explained that the resident could bring her complaint to this Service if she remained dissatisfied.
23. The landlord’s internal correspondence documents that two visits were attempted with the resident later in May. They were not able to gain access as the resident was not home, and a message had been left for her. The neighbour had been visited and her home inspected again, with nothing untoward found. Other tenants had also been contacted. No unusual smells were reported, apart from occasional cannabis during the day. One officer noted that the resident had previously rejected the possibility that the smell was of cannabis.

Assessment and findings

24. The resident’s tenancy agreement (only a generic sample of which was provided for this investigation) makes clear that the landlord is responsible for maintenance and repairs of “the structure and outside of buildings including drains, gutters and pipes; all fittings, pipes and connections supplying water, gas and electricity; all equipment for sanitation including basins, sinks, baths and toilets”.
25. The landlord’s residents’ handbook sets out that the landlord aims to respond to emergency repairs within 2-4 hours, urgent repairs in 24 hours, and all other repair issues by appointment. The typical repair timeframe amongst landlords for non-urgent/emergency matters is approximately one month.
26. Upon receiving a resident’s report of something unusual occurring their home, a landlord would usually be expected to inspect, attempt to witness the problem itself, and, if evidence is found, investigate the cause and resolution. In this case, the resident’s tenancy agreement makes clear that the landlord was responsible for repairs and maintenance of many of the property’s most obvious fixtures and fittings which might conceivably give rise the problem being reported, i.e. the pipes and connections, gas systems, sanitation, gutters. It was therefore appropriate for the landlord to visit the resident to investigate her reports and attempt to resolve them.
27. Nothing in the evidence indicates that in 2020, and 2021 the issue being reported should reasonably have been considered to be an emergency. In that light, the landlord would be expected to have attempted to visit and inspect within approximately one month, in line with basic good practice. However, in this case, the evidence does not show any clear record of the landlord receiving the resident’s reports about the smell problem. In its November 2019 response to the resident’s MP it explained that it had not actually received any reports. The resident has explained that she has experienced the problem for some time, but has not been able to provide clear evidence of when she specifically reported it to the landlord. It stands to reason that a landlord can usually only be expected to respond to repair issues in a tenant’s home when a report is made. Accordingly, there is no evidence of a service failure by the landlord, in terms of its response to any actual reports by the resident.
28. Based on the evidence provided for this investigation, the landlord only became aware of the resident’s concerns after her MP wrote to it in November 2019. In response to the MP, it explained that it had not had any reports from the resident, and that its operatives who had attended in August 2019 on unrelated repair jobs had not noted any such problems.
29. There is no indication of action by the landlord in response to the MP’s report of the resident’s concerns, until the landlord explained to this Service, on 19 March 2020 that its officers had visited the resident about the smell “on several occasions”. No details or supporting evidence for these visits have been provided. The landlord also said it had visited again on 11 March 2020. Again, no supporting evidence has been provided, but the resident confirmed its attendance on that occasion.
30. The landlord’s first complaint response set out its actions to investigate the resident’s concerns. It explained that its actions to that date had not found evidence of the problem the resident was reporting. Nonetheless, it committed to a range of further actions to try and resolve the matter, including visiting the neighbouring property— which the resident believed to be the source of the smell— and visiting the resident again. The actions proposed by the landlord were meaningful and relevant, and showed its commitment to assisting the resident. However, no evidence of the landlord following through with its actions has been provided, even for those which the landlord had said would not be delayed by the Covid19 lockdown and should have been possible at the time, such as ringing the neighbour.
31. The resident continued to advise this Service through the rest of 2020 that her concerns about the smell continued, and she was dissatisfied with the landlord’s efforts to resolve it. The evidence shows that, at least in October and November 2020, she was also reporting the matter to the landlord. There are indications that the landlord was following her reports up with her, but no clear details about any actions it took.
32. The landlord’s internal records show that while investigating the escalated complaint an officer who had visited the resident was asked what had happened and when the visits were made. The fact that the officer could not provide dates, and had to rely on memory rather than on any contemporaneous records is of concern, and further emphasises that the landlord has not kept robust records of its activity in regard to this complaint.
33. Overall, the landlord’s complaint responses and communication with this Service in March and April 2020 show meaningful and reasonable engagement with the resident’s concerns. However, there is no evidence of it responding in good time when it became aware of the matter in November 2019, and there is no evidence of when and what it did in 2020 to follow up on what it had promised in its stage one complaint response. All the indications are that it did conduct visits to the resident and neighbour, and that nothing supporting the resident’s concerns was found. However, there should be clear records of these actions, in line with basic professional practice and common sense. Their absence does not necessarily indicate poor service in regard to the substantive issue of concern to the resident, but it does show poor record keeping.
34. The records and correspondence provided for this investigation show that the landlord followed up on the actions it promised in its final complaint response. The actions were, again, reasonable and meaningful, and remedy somewhat the lack of clarity about its earlier efforts. There is no apparent evidence supporting the resident’s concerns, and without that there are no meaningful steps the landlord could take to address the issue she reported. There is also nothing indicating there are further enquiries or investigations the landlord could reasonably be expected to take following its final complaint response. Nonetheless, this complaint has shown that while the landlord’s efforts were reasonable, its record keeping was not. The impact being that this investigation’s findings are not as robust as they should have been able to be.

Determination (decision)

35. In accordance with paragraph 54 of Housing Ombudsman Scheme there was service failure in respect of the complaint.

Reasons

36. The evidence indicates that the landlord responded to the resident’s reports of a noxious smell in her home pragmatically and reasonably. However, the landlord has not kept appropriate contemporaneous records of many of its actions, the result of which is that there is only limited support for the explanations it provided to the resident.

Orders and recommendations

37. In light of the findings in this investigation, the landlord is ordered to:
    1. review its record keeping practices to determine if the shortcomings noted in this report are isolated or systemic problems; and
    2. prepare an action plan to remedy the matter accordingly, so as to be able to provide when requested meaningful and robust evidence of its housing management activities.
38. This review, and evidence of the implementation of any improvements it identifies, should be completed and shared with this Service within 12 weeks of this investigation.