Magenta Living (202234363)

REPORT

COMPLAINT 202234363

Magenta Living

29 November 2024

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 reports of odours.

Background

2. The resident is a leaseholder of the landlord. The property is a second floor flat.
3. The resident says that there are recurrent bad smells in his living room and in communal hallways, which he says are caused by the tenant of the flat below. He says that the landlord should do more to resolve matters, such as help the tenant clean their property, rehouse them or buy back the resident’s property.
4. In late January 2023, the landlord noted reports of smells coming from the tenant’s flat, and in early February 2023 housing officers visited the tenant and the resident to assess the issue. Following this, it wrote to the resident with the outcome in a letter dated 17 February 2023. This said that there was a different smell in the resident’s living room to other rooms, however no similar smells were witnessed in the tenant’s flat, and the same smell had not been smelled when the tenant’s flat had been visited on previous occasions.
5. In late February 2023, the resident complained about a lack of response to attempts to obtain a written update about the visit. The landlord declined this as it considered that the complaint was a neighbour dispute which sat outside the complaint procedure.
6. In early March 2023, the resident was forwarded the February 2023 letter. Following this, the resident complained. He was unhappy that the landlord had not confirmed that the smell was coming downstairs. He said that staff were lying. He also said that the tenant of the flat below had been given advance warning of the visit so that they could clean up.
7. On 21 March 2023, the landlord provided a stage 1 response. It detailed events and said it did not find any errors in handling or communication about its findings. It said that smells had a limited ability to travel between flats due to the flats being compartmentalised. It said that the issue appeared to be contained to the resident’s flat, and there was no factual evidence to suggest it was responsible for resolving it. It said that it did not believe that there was anything further it could currently do to identify or remedy the issue.
8. In early June 2023, the resident escalated the complaint, and in late June, a manager and staff visited.
9. On 4 July 2023, the landlord provided a stage 2 response. It noted that the resident was convinced an odour was associated with another resident, and felt it had not done enough to investigate and resolve the issue. It noted there was an unusual smell in one room at a previous visit, but the source of this could not be traced. It said that there had been no concerns with the flat below at visits, and it had not received any similar reports from other residents. It noted findings from the recent visit that there were no current problems with smells and no unusual odours in communal areas.
10. It said it had acted fairly and impartially tying to identify the root cause of the issue, and its actions demonstrated that it was willing to explore avenues suggested by the resident, but it was unable to find evidence that the flat below was the source of smells. It said that it was committed to assisting residents where there are concerns about them maintaining properties, but without evidence to support such concerns, there was little scope to take further action. It concluded that it had done everything within reason to investigate the matter.

Assessment and findings

Scope of the investigation

11. The resident has said that he has experienced ongoing odours from his neighbour in the flat below for 7 years. The Housing Ombudsman Scheme, which sets out how we may consider complaints, says that we may not consider complaints that were not brought to a landlord’s attention as a formal complaint within a reasonable period, normally within 12 months of the matters arising. The investigation will therefore focus, as the resident has been informed, on recent events between January and July 2023.

The resident’s reports of odours

12. The Ombudsman understands the resident’s situation and recognises that the concerns he has reported have affected and caused distress to him. In cases relating to smells, it is not the Ombudsman’s role to definitively determine if there is an unreasonable smell present or who is responsible. The Ombudsman assesses how a landlord has dealt with reports it has received in the timeframe of a complaint, and assesses whether the landlord has followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case.
13. Following the resident’s January 2023 reports, it was necessary for the landlord to respond and take action such as assess the issue, contact the resident, contact other parties involved, and deal with the reports in a proportionate and appropriate manner.
14. The landlord visited the resident and his neighbour in the flat below in February 2023, after which it wrote to the resident with the outcome. There were issues  with the resident receiving an initial postal copy of the outcome, but the landlord ensured that he was provided with further email and hard copies of this. The landlord acknowledged that there was a different smell in the resident’s living room to other rooms, but it said that no similar smells were witnessed in the neighbour’s flat on that or other occasions. The landlord then visited the resident and the block in June 2023 as part of its investigation of the stage 2 complaint, and no issues with smells in the resident’s property or communal areas were noted at that time.
15. The landlord’s actions to visit the block was appropriate, as it would not be expected to know if a report is true or not, and inspecting issues firsthand gives it the opportunity to respond to reports and stop behaviour by other residents that affects others, if necessary. The landlord’s responses reflected the evidence, in the timeframe of the complaint, that there were no smells in the resident’s property or elsewhere linked to issues with smells in the flat below. The landlord was consequently reasonable to decide not to take any action in respect to the resident’s neighbour in the flat below. The landlord’s options will be limited if it considers there to be no evidence of an unreasonable smell or that the resident’s neighbour is causing an unreasonable smell.
16. The Ombudsman does not necessarily dispute that the resident experiences issues with smells, and we understand that the alleged ongoing nature of the issue will be upsetting to him. However, the landlord would not be expected to take further action based on the resident’s suspicions alone, and in order for it to take action such as unannounced visits to check on the cleanliness of the resident’s neighbour, it should reasonably demonstrate that any further action would be a proportionate and justified response to the allegations and the evidence available. This is in the interests of all parties including the landlord, the resident and its other tenants and leaseholders, who the landlord is obligated to treat as fairly as the resident.
17. In this case, it is evident the landlord took appropriate action in response to the resident’s reports in the timeframe of the complaint. It fulfilled obligations to consider and respond to the reports in a timely and reasonable manner, and took into account his desire for his neighbour to be given support to stop causing smells that allegedly affected his property and communal areas. It assessed and discussed the issue with the resident, visited his neighbour, and visited the resident again during the stage 2 investigation.
18. The Ombudsman notes the resident’s contention that his neighbour was given advance warning of the landlord’s visit so they could clean, but the Ombudsman cannot see that the neighbour was given warning about the specific nature of the visit, or see how the landlord could have handled its visits any differently. The landlord is obligated to treat other residents as fairly as the resident, and it would not be fair for the neighbour to experience increased contact or visits from the landlord unless the landlord was satisfied that there was basis for this.
19. The Ombudsman also notes the resident’s desire for landlord staff to take lie detector tests in respect to the issue. The landlord is entitled to rely on the professional opinions of its staff for the issues it considers, and there is no expectation by the Ombudsman for a landlord to use lie detector tests.
20. Overall, the Ombudsman cannot see any significant issues in the landlord’s response to the resident’s reports in the timeframe. It appropriately investigated the issue, and its conclusions were based on timely firsthand assessment, and the current evidence for it being caused by the resident’s neighbour in the flat below. The Ombudsman has seen no evidence to warrant further action by the landlord than has been taken in the timeframe of the complaint, including the resident’s stated outcomes such as helping the neighbour clean their property, rehousing them or buying back the resident’s property. This leads the Ombudsman to find no maladministration in the landlord’s handling of the resident’s reports of odours.
21. The Ombudsman notes that the landlord declined to raise complaints in January and February 2023, as these were considered to be neighbour dispute. This was not reasonable for the February 2023 complaint where the resident expressed dissatisfaction with a lack of a written update to the early February 2023 staff visit, and to his attempts to contact staff about this. The landlord should have accepted this complaint as it involved dissatisfaction with staff handling. This did not result in any significant detriment as the resident was provided a further copy of the letter about the visit soon after, so the Ombudsman makes a recommendation about this.
22. The resident has also referred to issues with smells on an ongoing basis, and while the landlord did not observe any issues when it visited, it could have demonstrated that it was open to investigating any future reports about smells the resident made. The Ombudsman therefore makes a recommendation in respect to this.

Determination

23. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the handling of the resident’s reports of odours.

Orders and recommendations

24. The landlord is recommended to:
    1. consider any further reports it receives from the resident, consider appropriate action, and set out a position on this to the resident.
    2. review its system for any other reports about odours from residents at the block since March 2022, and consider any appropriate action.
    3. consider carrying out a door-knocking exercise to check if any other residents have experienced similar issues in their property or communal areas, and consider any appropriate action.
25. The landlord is recommended to review its complaint handling and ensure that it does not unreasonably decline a complaint where this relates to staff handling.