Anchor Hanover Group (202121516)

REPORT

COMPLAINT 202121516

Anchor Hanover Group

13 March 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 the landlord’s handling of a notice ordering the resident to not smoke in his property prior to, and during works carried out by contractors, and its response to his associated reports of harassment.

Background

2. The resident is a tenant of the landlord.
3. On 20 October 2021, the resident received a notice prior to a visit from the landlord’s contractors. The notice stated “if you smoke within your home, do not smoke within the property for a minimum of two hours prior to the contractor’s prearranged visit, or at any time when the contractor is present within the property”. The resident complained to the landlord, as he disliked the wording it had used. He stated that there was no contractual basis for the landlord to order him to not smoke in his own home.
4. The landlord discussed the issue with its legal team and sent its response on 19 November 2021. It explained that its contractors had various stipulations in place for providing safe working places for their employees. As part of its contractual obligations to the contractors, the landlord had agreed to ensure that all residents refrained from smoking prior to, and during the contractor’s visits. It stated that it was asking all residents to respect this stance, as the contractors may refuse to work inside the property if the resident chose to continue smoking. The landlord explained that if this happened, it may have to pursue legal action and apply for an injunction to gain appropriate access to the property.
5. The resident escalated his complaint on 20 November 2021. He disputed that the landlord had requested that he not smoke, stating rather that it had prohibited him from doing so. He expressed his dissatisfaction at the landlord’s choice of wording in the notice, which he found dictatorial. He challenged the landlord’s legal right to order him not to smoke in his property, and stated that he had abided by the terms of his tenancy agreement in granting access to the contractors. He further explained that the landlord’s choice to state it may have to pursue legal action had been intimidating and could amount to harassment.
6. The landlord consulted its senior solicitor and sent its final response on 18 January 2022. It reiterated its points from the first response, discussing various pieces of legislation that guides employers in implementing safe work practices. It disagreed that the resident had provided adequate access to the property, as it felt that the wider meaning of this stipulation meant not preventing works from being carried out for whatever reason. However, although the landlord felt it was reasonable to ask the resident to refrain from smoking temporarily, it acknowledged that the wording had been too dogmatic. It apologised and stated that in future it would phrase such notices as a request.
7. In his complaint to this Service, the resident continues to dispute that the landlord had any legal basis to prohibit him from smoking at any time in his own property. He believes that the landlord should have requested him to not smoke, rather than directing him to do so, and feels this interference from the landlord amounts to harassment. He is also dissatisfied that the landlord did not directly address his complaint about harassment in its complaint response.

Assessment

Scope of investigation

8. In some of his communication to this Service, the resident has also mentioned that he remains dissatisfied with the landlord’s continued affiliation with a particular charitable organisation. Under paragraph 41 (d) the Ombudsman cannot consider complaints which concern matters in respect of Local Housing Authorities in England which do not relate to their provision or management of social housing. As such, this investigation will be limited to assessing the landlord’s handling of the notice to not smoke prior to, and during contractors visits, and its handling of the resident’s subsequent report of harassment.

The complaint is about the landlord’s handling of a notice ordering the resident to not smoke in his property prior to, and during works carried out by contractors, and its response to his associated reports of harassment.

9. The resident’s tenancy agreement states that the landlord will not interrupt or interfere with the resident’s right to live peacefully in the premises except where it needs to enter the premises (after giving reasonable notice) to inspect them or carry out repairs or other work to the premises. The resident in turn must allow the landlord into the premises at reasonable times with reasonable notice to inspect the condition of the premises, or carry out repairs or other work.
10. The landlord has explained that its contractual obligations to its contractors require it to ensure that the properties they enter are smoke free. This is due to the contractors own health and safety procedures, which ensure safe practices for their employees. As a result, it was reasonable for the landlord to ask residents to refrain from smoking in their properties for a small duration, before, and during the contractor’s visits, as this fulfils its obligations as an employer.
11. As the contractors have stipulated a need for smoke free environments in their contracts with the landlord, it is within their rights to refuse to work in properties where residents have not complied with this stipulation. As this is an explicit term of their employment, the emphasis is on the landlord to ensure that the residents are aware of the criteria to temporarily not smoke, so that residents can provide unrestricted access to their properties for the completion of the repairs. Once the resident is aware that they should not be smoking just before, or during the contractors visit, they should comply with these provisions, in order to allow the contractors safe access to their home. This is implied in the contractual term stated in the tenancy agreement above, which requires residents to provide access to contractors for repairs. As such, the landlord’s conclusion that it had the right to require the resident to refrain from smoking temporarily was appropriate in the circumstances, as it was to ensure that the resident’s repairs could be carried out to completion.
12. Nevertheless, it would have been good practice to use less forceful wording, and to have asked the residents to refrain from smoking temporarily. This would have been more cordial, and would have fostered a better landlord/resident relationship. However, the landlord acted reasonably in its complaint response in November 2021, by stating that although it upheld the substance of its notice, it acknowledged that the wording was not appropriate. It apologised and promised to learn from this mistake when composing future notices. It is the Ombudsman’s opinion that this acknowledgement, apology and commitment to changing its processes in future offers suitable redress for its use of insensitive wording.
13. The resident has complained that the landlord did not directly address his complaint about harassment in its complaint response. The resident based his complaint of harassment on the belief that the landlord did not have a legal basis for ordering him to not smoke on the property (temporarily). He felt that its forceful approach was unreasonable and exceeded its remit as landlord. Although the landlord did not directly use the word ‘harassment’ in either of its complaint responses, it did assess the substance of this aspect of the resident’s complaint. It acted reasonably by explaining its relationship with the contractors, and analysing the terms in the resident’s tenancy agreement to allow access to the property. As it addressed the behaviours that led to the complaint of harassment, this was an adequate response to this aspect of the complaint.

Determination (decision)

14. In accordance with paragraph 53 (b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.