LiveWest Homes Limited (202123960)

REPORT

COMPLAINT 202123960

LiveWest Homes Limited

13 July 2022

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 the resident’s report of cigarette smoke entering her home from a neighbouring property via the communal area.

Background

2. The resident is a tenant of the landlord and lives in a flat.
3. On 16th November 2020, the resident contacted the landlord and reported that she and her partner (who is a joint tenant) had smelt cigarette smoke in the communal area since living at the property, and that they had noticed cigarette ends and ash on the carpet there. She said that the smell had recently become worse and permeated into her flat. The landlord made enquiries, and informed the resident that her front door was a fire door, and should not be letting smoke in, nor should smoke be entering the resident’s home through any vents. Subsequently, the landlord arranged for its operative to visit the resident on 11 December 2021 to assess if any repair issues contributed to the issue.
4. On 1 January 2021, the resident clarified that she believed smoke was emanating from a particular neighbouring property. She said that the smoke from that flat was causing a nuisance and impacted her and her partners health.
5. On 6 January 2021, the landlord told the resident that following its inspection, its operative reported “that the fire door is fitted correctly, but a fire door will not stop the smell seeping through into the flat as they are not designed to do this.” It said that a letter had been posted to all residents in the block with a reminder that smoking was not permitted in the communal hallway. It told the resident that, if she believed the issue stemmed from a particular flat, she could speak with her neighbour directly about the matter, as they might not be aware of the impact their smoking was having.
6. The resident contacted the landlord the following day as she was unhappy with its response. She said that if this was not in breach of the tenancy the neighbour was not doing anything wrong by smoking in her own home, and so she believed it was for the landlord to prevent the smoke entering her home.
7. Not having had a response, the resident contacted the landlord on 14 January 2021. She contacted the landlord again on 20 January and asked to raise the matter as a formal complaint, as she still had not received a response. The landlord acknowledged the complaint the same day and apologised for not previously responding. It said it would respond to the complaint by 27 January 2021.
8. The landlord issued its stage one response on 3 February 2021. It said it had not identified in its inspections any repair issues that would allow smoke to be entering the resident’s home. It did not uphold the complaint as, after discussion with the resident it said it was “unable to propose anything apart from not permitting tenants to smoke in their own homes which not possible.” The resident escalated her complaint on the same day as she did not believe the landlord had taken enough action. She reported that the neighbour spent a lot of time talking to people at her front door, which allowed smoke to escape into the communal area, and then into her own home. The resident proposed that installing a secondary door at her home would potentially act as a barrier to help prevent smoke penetration.
9. After speaking with the resident on 12 February 2021, the landlord issued its stage two response on 15 February 2021. It said that it could support the resident and her neighbour through mediation, should she wish to explore that option, and that it would contact the neighbour to ask her to be mindful when her front door was open. It said it would welcome an application from the resident to install a secondary door as an improvement, should she wish to fund it herself. It confirmed that its complaints process had been completed and provided the resident details on how to refer her complaint to this Service if she remained dissatisfied.
10. The landlord discussed the matter further with the resident during February 2021. In March 2021 the landlord’s sent a further reminder to its tenants about not smoking in the communal area, and it spoke with the resident’s neighbour regarding the issue, in liaison and attendance with its fire safety team. The resident also discussed the issue with the local council’s environmental health team, who advised that in the circumstances it was unlikely that the smoke issue would be considered a statutory nuisance as it is produced by a lawful act, such as smoking within the home.
11. The resident referred her complaint to this Service in January 2022. She remained dissatisfied with the landlord’s handling of the situation and said that it was still ongoing. She said she wanted the landlord to ensure her home was no longer affected by cigarette smoke ingress, and she wanted the landlord to install a secondary door at her home as a preventative measure.

Assessment and findings

12. The landlord has an antisocial behaviour (ASB) policy which classifies smoking as a lifestyle difference which does not amount to ASB. In such instances, it states the landlord will be clear with resident and offer appropriate signposting at first point of contact.
13. The landlord has a complaints policy. At stage one, if it is not able to resolve the complaint within twenty-four hours, it says it will aim to resolve the complaint within five working days. At stage two, it says the timescales to respond will be agreed directly between the landlord and the resident but will normally be no more than seven days.
14. On discussing the resident’s initial concerns, the landlord did the appropriate thing by inspecting, to find out if any repair issues exacerbated the situation. The landlord also appropriately issued a letter to all tenants to remind them that smoking was not permitted in the communal hallway. However, nothing in the evidence shows that the issue occurred, or was made worse, as a result of any need for structural repair in the building, or failure by the landlord to comply with its repair obligations. Nor did the evidence show that issue occurred as result of any tenancy breaches or that any tenants of the block were witnessed smoking directly in the communal hallway, and as such the landlord was limited in what actions it could take.
15. As the resident clarified, the complaint mainly concerned smoke emanating from a particular neighbouring property. The landlord suggested that the resident speak with her neighbour directly to discuss the matter. It recommended in this case, that residents try to resolve matters between themselves in the first instance, before it got involved. The landlord signposted the resident to its website as it said she could use “the dear neighbour cards” there if she didn’t feel comfortable speaking to the neighbour. This was an appropriate response and in accordance with its ASB policy, and is usual good practice in matters that would not usually constitute ASB and a lack of evidence of deliberate harassment or nuisance.
16. It was reasonable that the landlord did not speak with the resident’s neighbour regarding the matter in the first instance, given that the resident asserted throughout the complaints process that she believed that speaking with her neighbour would not make a difference to the situation. Nonetheless, the landlord acted appropriately by speaking to the neighbour following its agreement to do so in its final complaint response. As a result of further discussion with the resident, the landlord wrote again to all residents in the block with particular emphasis on smoking in the communal hallway being an offense. The landlord acknowledged and apologised that the letter it had sent to residents previously did not refer to this, despite saying it did so in its stage one response. The above actions demonstrated that the landlord continued to be resolution focused in its approach.
17. Although the landlord did not explain why it failed to respond to the resident’s correspondence which she had sent it on 7 and 14 January 2021 (and good practice would have been for it to do so), it appropriately apologised for its poor communication when it acknowledged the resident’s complaint. The resident has highlighted that the landlord issued its complaint responses outside of its complaints policy timeframes. The response timeframes set out in the landlord’s complaints policy are notably short in comparison with the maximum time scales set out in the Ombudsman’s Complaint Handling Code. Nonetheless, the delays were not considerable, and the evidence showed that the landlord communicated with the resident during these periods and thus managed her expectations accordingly.
18. The resident explained that she believed the landlord should take physical measures to prevent smoke entering her home, but the landlord had no obligation to do this, given that nothing in the evidence showed that the issue resulted from any structural defects or repair issues with the building. The resident suggested to the landlord that installing a secondary door in her home “as a barrier to the smoke could help.” While it is appreciated that the situation may be unpleasant for the resident, such an addition would be technically be considered an improvement, and not something the landlord is obliged to do. Accordingly, its advice to the resident that it was something she could seek permission for and install herself was reasonable.

Determination

19. In accordance with paragraph 54 of the Scheme, there was no maladministration by the landlord in respect of the complaint.