Anchor Hanover Group (202009169)

REPORT

COMPLAINT 202009169

Anchor Hanover Group

30 April 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 complained about the landlord’s:
1. response to his concern about insufficient compartmentalisation within the building to prevent transmission of smells and smoke into his property and communal areas.
2. handling of his associated complaint.

Background and summary of events

Since 2018 the resident has lived in a one bedroom first floor flat in a 1960s constructed block of six flats, which is owned and managed by the landlord.
It would appear that the resident’s concerns about compartmentalisation are long-standing and as a result of which the landlord sought advice in 2019 from its area surveyor.
The surveyor’s opinion centred on the resident’s concern – as it remains now – about a gap around a soil pipe in his bathroom being a potential source of ingress of sound, smells and smoke. It concluded the property complied with regulations at the time of its construction. It found the soil pipe could be further sealed but being in a bathroom was in a very low risk area for fire breakout, was contained in plywood offering very low flame spread and that there was an early warning detection system in place for the block. As a result it saw no grounds to conduct an intrusive survey and was doubtful the cost of the extra sealing would be money well spent. It would appear, however, that on the resident’s request the landlord did then further seal the pipe using expandable foam.
Since that time the landlord has informed the resident that with respect to his increasing concerns about a neighbour who smokes, that the neighbour is not in breach of tenancy conditions, and that any potential fire risk posed by his smoking would be addressed by its estate manager in the course of routine property checks.
The resident’s current complaint is about his ongoing concern about the smell of cigarette smoke permeating both the communal area and his flat which he considers is caused by the neighbour’s smoking, gaps around his front door and around the soil pipe in his bathroom.
Stage 1 complaint: It was following an email exchange with the resident about his concerns with the neighbour’s cigarette smoke permeating the communal area and his flat that the landlord decided to treat his concerns as a formal complaint. The resident had asked for action to mitigate what he considered to be the fire and health risks associated with this and wanted a smoking ban implemented. By this stage the landlord’s health and safety manager had already told the resident that the neighbour did not smoke in the communal area, only his flat, and that this was permitted. He also said the neighbour had refrained from smoking when asked. The manager explained it checked its residents’ doors as part of its fire risk assessment and that the fire doors were in good repair and complied with current standards. He said it was inevitable odours would escape when a front door was opened.
On 6 March 2020 the landlord confirmed it would respond to the resident’s further concerns under its complaints procedure. It summarised his complaint as being about passive smoke in the building and its smoking policy.
Stage 1 complaint response: Following a telephone conversation with the resident, on 11 March 2020 the landlord’s health and safety manager replied as follows:
1. Regarding the request to make the building a smoke free location it did not consider it reasonable or practical to apply a blanket ban as it would have to apply this equally to all its properties.
2. As a result of consulting the local authority it considered smoke related odour in communal areas to not be a statutory nuisance, with risk of harm to be minimal.
3. It agreed to investigate a replacement deodoriser for the communal area.
4. The neighbour did not smoke in the communal area.
5. The resident’s suggestion of further ventilation and door seals would not be actioned but it would review the issue should the odour become a statutory nuisance for the resident within his own property.
On 18 March 2020 the resident emailed the landlord and asked that it revise its tenancy conditions to enable enforcement action against the neighbour for smoking. Failing that, he asked that the neighbour’s door be fitted with airtight seals and the communal area fitted with an extractor fan. He also said he considered the lack of seal around the soil pipe into his loft constituted a fire risk. It is not clear what reply he received to this, but it is clear the landlord did not agree to the action.
Stage 2 complaint: On 27 May 2020 the resident escalated his complaint to the landlord’s Chief Executive, asking that the landlord alert the new tenant of the flat above the neighbour to the ‘dangers and health risks’ associated with the neighbour’s smoking. He followed this on 29 May 2020 with a report that residents of other blocks had experienced odours in their flats, particularly in shower rooms, which he put down to ineffective seals around soil pipes. He said although he had found the foam filler seal around his own soil pipe had significantly reduced odours into his flat and leaks to the flat below, he considered another potential odour source was a lack of seal around the soil pipe as it passed into the loft cavity.
On 1 June 2020 the landlord told the resident it would respond within 14 calendar days, and on 16 June 2020 further advised him that owing to the operational impact of Covid its response to his complaint would be delayed beyond its target 14 days. The resident did not accept this explanation and subsequently chased the response.
On 30 July 2020 two of the landlord’s building safety surveyors inspected the property/building and in summary reported to the landlord as follows:
1. It considered the nature of its inspection had disappointed the resident. It had attended to inspect for compartment breaches but the resident was focused on cigarette smoke emitting to the communal stairwell.
2. The resident was concerned the soil pipe vent was a possible vent for smoke and flame but it found this to be low risk as the bathroom was a wet area and the encasing plasterboard provided an element of containment.
3. All internal doors at the property had been removed.
4. No further action was required with respect to fire compartmentation.
5. The landing sash window was openable and fixed windows had trickle vents.
6. The front door was within the 4mm tolerance for the seals to meet fire safety standards.
7. The only recommendation would be for the glass panel of the communal front door to be replaced with plywood to enable a vent to be fitted.
Stage 2 complaint response: On 26 August 2020 the regional manager provided the landlord’s Stage 2 response. She summarised her findings:
1. Its surveyor had been briefed to inspect fire compartmentalisation in response to the resident’s concerns around fire safety, for which he had been provided with the resident’s emails of 27 and 29 May 2020, and 23 June 2020.
2. The surveyor found the void around the soil pipe to be low risk as was in a (wet) bathroom, encased in plasterboard which provided a15-30 minute barrier, and no further action was required for fire compartmentalisation
3. Regarding ventilation and air flow to remove stale air and cigarette smoke from the communal area, the surveyor found the landing sash window opened and the fixed windows had trickle vents.
4. The surveyor found the gaps around his front door did not hinder its operation as a fire door to stop the spread of smoke or flame.
5. The surveyor recommended replacing the communal entrance door lower glass panel with plywood and vent. [The resident subsequently declined this offer.]
6. With respect to his concern about health risks associated with inhalation of secondary cigarette smoke and action taken with respect to the neighbour the landlord reiterated its health and safety manager’s advice. He had investigated this concern and consulted the local authority and the conclusion reached was that smoke related odour in communal areas did not constitute an enforceable statutory nuisance as the area was used only for transiting.
7. The landlord advised the resident to reinstate the internal doors in his property as these would afford some level of protection in event of fire.
The resident replied the following day to dispute the surveyor’s findings. He was concerned the surveyor had failed to identify the pipe was surrounded by chipboard and not plasterboard. He considered its analysis, particularly in relation to the soil pipe void was wrongly focused on a fire risk assessment as opposed to his concern about smell, leaks and draughts as a result of a lack of compartmentalisation. He reiterated his concern of health risks associated with secondary smoke inhalation. In September 2020 the resident told the landlord he intended to commission his own survey of the property. The landlord said it had provided its final response but would be happy to review any findings of his survey.
In October 2020 the resident obtained his own survey. This focused on the gap around his front door and the void surrounding his soil pipe. The surveyor noted spray foam and reasonable tight–fitting plasterboard around the pipe but found a small gap could allow air, odours and liquid to pass through and that this constituted a lack of fire separation between the flats. He also found combustible fibreboard boxing around the pipes. He recommended the fitting of a fire resisting collar around the pipe and for the remaining void to be filled. He found the front door had a gap of 5mm through which light could be seen. He said it needed to be refitted and to be ensured was fire safe.
On 13 November 2020, having reviewed the findings of the resident’s survey the landlord explained to the resident that this did not give it cause to change its earlier findings. It said its surveyor had found the front door gap to be within acceptable limits; the door complied with regulations at the time of installation and it was not required to retrospectively change it if regulations changed. It confirmed its discussion about the gap with a fire service officer during a recent routine inspection and as a precautionary measure it would arrange a fire door survey in the near future and rectify any deficiencies identified. The landlord said it noted the fire officer had discussed with the resident the lack of internal doors in his property. It reiterated its view that these offered some protection in event of fire and that it had been unable to locate any record it had consented to their removal [as required under the terms of his tenancy]. It asked if no consent had been given that he reinstate them.

Assessment and findings

The resident’s complaint centres on his disagreement with the landlord as to what constitutes adequate compartmentalisation between the properties both for fire safety purposes but also for the purpose of preventing transmission of cigarette smoke and odours (and potential leaks through the soil pipe void). Both parties have relied on the opinion of suitably qualified professionals in determining their positions. The resident says there is a lack of compartmentalisation; the landlord says there is adequate compartmentalisation.
It is not the role of the Ombudsman to determine whether the property has compartmentalisation and/or if this is adequate. The role of the Ombudsman is to determine if, in responding to the resident’s concerns about this, the landlord complied with its relevant policies and procedures and whether its response was reasonable in all the circumstances of the case. This will include a consideration of how the landlord responded to the resident’s complaint about its handling of the matter.
The relevant policies and procedures here are the landlord’s fire safety policy; its obligations under the tenancy agreement; and its complaints policy.
Within its fire safety policy (November 2019) the landlord states it will meet all legal and statutory obligations by, amongst other measures, carrying out fire risk assessments and putting in place necessary fire prevention and protection measures.
When the resident raised his concern about a potential fire risk associated with the lack of compartmentalisation, focused mainly around the soil pipe in his bathroom, the evidence shows the landlord responded appropriately by undertaking two separate surveys (2019 and 2020) and seeking to fill the void with expandable foam. But irrespective of this its fire risk assessment with respect to the pipe and the door was that no further action was required with regard to compartmentalisation. The resident’s surveyor found differently and has recommended further work.
It is not for the Ombudsman to determine which of the surveyor’s findings is the more reliable, whether the gap around the door was within tolerance or to what extent fibreboard around the pipes increased the fire risk. It is clear the landlord had no repair obligation with respect to the pipe or door as they were not broken and there were no leaks; the resident’s concern was that these aspects of the property were not fire safety compliant. As the Ombudsman sees it, in commissioning its surveys from appropriately qualified professionals the landlord is entitled to rely on the opinion of those professionals in assuring itself that these items were fire safety compliant and that there was adequate compartmentalisation of the property for fire safety purposes.
Although reasonably relying on the opinion of its surveyors, the evidence does not indicate the landlord has ignored the resident’s continuing concerns. It undertook to review his surveyor’s findings and, although the resident is unhappy this did not result in the modifications recommended by his surveyor, the Ombudsman recognises that professional opinion can differ and that the landlord was entitled to rely on the professional opinion of its surveyors. Further to this, in agreeing to undertake a fire door survey as a precaution indicates to the Ombudsman that, despite not accepting the resident’s surveyor’s conclusion, the landlord remains appropriately open to addressing evidence of deficiencies with regard to fire safety within the building.
The resident considers the fact that he can smell smoke from a neighbour’s flat to be evidence of a lack of adequate compartmentalisation. However, the landlord has explained, reasonably in the Ombudsman’s view, that odours can penetrate other properties from the communal area when residents open their front doors. While that may not be a pleasant aspect of living in a block of flats, there is no evidence this has occurred as a result of failure by the landlord to comply with its obligations and assure itself of adequate compartmentalisation within the property.
The fact of the neighbour’s smoking, however, and his experience of smoke and cigarette odours is a cause of considerable and understandable upset for the resident. The Ombudsman has considered the landlord’s response to his concerns about this. The Ombudsman notes there is no prohibition in the conditions of tenancy on a resident smoking in their own property, provided they do so safely, although they are not to smoke in the communal area. There is no evidence of a breach of tenancy conditions – either of the neighbour posing a fire risk by smoking in his own property or of him smoking in the communal area that would justify the landlord taking enforcement action against the neighbour.
Nevertheless, the resident considers the fact that the neighbour is permitted to smoke in his own flat is a potential fire risk. As the Ombudsman sees it, the landlord is entitled to balance the risk of this with the rights of its residents and to look to mitigate any risks when it considers it reasonable to permit smoking. The conditions of tenancy prohibit a resident from causing a nuisance and this can include not using the property in such a way as to cause a fire. So were the landlord to find evidence of the neighbour’s smoking posing a fire risk it would be able to take appropriate action. The fact that it has not found evidence of this is not evidence it has failed in an obligation to the resident. The Ombudsman also notes the landlord advises residents in its tenancy handbook as to how to smoke safely within their own homes. This indicates to the Ombudsman that the landlord takes the potential risk of fire from smoking seriously and has taken reasonable steps to minimise that risk.
Beyond the issue of fire risk, the health risks associated with secondary cigarette smoke have also been appropriately considered by the landlord’s health and safety manager. That is because smoke could pose a statutory nuisance if it substantially impacted the resident’s enjoyment of his property or be likely to injure his health. (This does not apply to smells.) That being the case, it was appropriate that the landlord consult its local authority with regard to any potential statutory nuisance posed by cigarette smoke in the communal area. The resident disagrees with its consequent decision that this did not constitute a nuisance, but the Ombudsman finds it was a conclusion reasonably arrived at by the landlord.
With regard to smoke permeating the resident’s flat, the Ombudsman notes the landlord’s undertaking to review the matter if the resident considers he has evidence of cigarette smoke causing a statutory nuisance within his own property. That indicates the landlord remains appropriately open to the need to take steps if there is evidence of such an impact.
In terms of minimising any unpleasantness from the smell of cigarette smoke in the communal area, the Ombudsman considers the surveyors’ check that the area was adequately ventilated, together with the landlord agreeing to provide a deodoriser for the area were reasonable steps by the landlord to mitigate the unpleasantness of the smell.
A consideration of the steps the landlord has taken to address the resident’s concerns brings the Ombudsman to review the landlord’s handling of his complaint in relation to this. It was the landlord, not the resident, who chose to treat his ongoing concerns as a formal complaint. (The resident appears not to have initially considered it necessary, seeing it more as a dispute of technical issues than a complaint.) The Ombudsman considers it was appropriate for the landlord to seek to bring its email exchanges with the resident within its complaints process. The resident was clearly dissatisfied with the explanations he was being given and the exchanges had the potential to become unnecessarily protracted for all concerned.
A review of the landlord’s consequent complaint responses show it took the resident’s concerns seriously and sought to address the individual aspects of his complaint as they developed over time from a concern about fire safety and compartmentalisation to the potential health risks posed by secondary cigarette smoke. Indeed, the Ombudsman notes the resident’s complaints and email exchanges with the landlord have on occasion alternated in emphasis between a primary concern with fire safety to a concern with the health impact of secondary smoke. As a result the Ombudsman does not find, as the resident did, that the landlord’s responses were at times inappropriately focused on one issue over the other. And while the landlord’s responses did not result in the outcomes the resident was seeking, the Ombudsman considers its explanations were both comprehensive and reasonable.
That said, the Ombudsman does not consider the landlord’s response to have been sufficiently timely. Under the landlord’s complaints policy it undertakes to provide the outcome of its Stage 1 investigation with 14 calendar days and its Stage 2 review also within 14 calendar days. However, it took the landlord nearer three months to provide its Stage 2 review, which was considerably outside the 14 days envisaged in its complaints procedure.
The Ombudsman recognises the operational impact of Covid on the landlord’s ability to respond within its prescribed times and the time needed for it to obtain a surveyor’s opinion in order to inform its response. But nevertheless, for the resident to have to wait nearly three months for the landlord’s final response, and particularly the outcome of the surveyors’ inspection, was an understandable source of frustration for him. The impact of this service failure was not, in the Ombudsman’s view, adequately recognised by the landlord through its apology.
Finally, in finding the landlord took appropriate action to assure itself of the adequacy of the property’s compartmentalisation and to address the resident’s concerns with regard to cigarette smoke, the Ombudsman does not seek to minimise the resident’s experience of the smell of cigarette smoke in the building. The fact that he has found this deeply unpleasant is apparent from the evidence and the Ombudsman acknowledges and understands this.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in its response to the resident’s concern about insufficient compartmentalisation within the building.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in its handling of the resident’s complaint.

Reasons

The landlord took all reasonable steps, in accordance with its obligations under its fire safety policy and conditions of tenancy, to investigate and address where appropriate the resident’s concerns that the property and communal area were not sufficiently compartmentalised for fire, smells and smoke.
The landlord’s Stage 2 review response was substantially delayed and it failed in its response to fully recognise the frustration and inconvenience this caused the resident.

Order

With four weeks of the date of this determination the landlord is ordered to pay the resident £200 compensation for its delayed Stage 2 review response.

Recommendation

To write to the resident to explain its position regarding the need or otherwise for a seal around the soil pipe into the resident’s loft; and to explain the process by which it would consider a report of a statutory nuisance of cigarette smoke in the resident’s property.
To inform the resident of the timescale of its fire door survey and to provide him with details of the outcome.