MHS Homes Ltd (202203803)

REPORT

COMPLAINT 202203803

MHS Homes Ltd

3 August 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 resident complains about the landlord’s handling of reports of smoking within the block.

Background

2. The resident held an assured tenancy with the landlord, which is a housing association, from 10 January 2022 until 12 March 2023. The property was a ground floor flat within a block.
3. Between March and May 2022 the resident contacted the landlord on several occasions to report that he was unable to live in his property due to his neighbour who was smoking. The resident reported that his neighbours were smoking at all hours of the day and night and that the smoke was affecting his health and therefore he needed to be moved, possibly into sheltered accommodation or a rural area.
4. The landlord responded to the resident after each report and explained that he should seek medical attention if he was experiencing ill health and that it was unable to move him to another property.
5. On 2 June 2022 the resident raised a stage one complaint as he was unhappy with his neighbour’s frequent smoking. The resident explained that the fumes were strong and as a result his flat smelt very bad. The resident also said that the smoking was causing him to experience ill health.
6. The landlord provided a stage one response on 22 June 2022 where it said that although it had spoken with the neighbour, it was unable to pursue tenancy action as the neighbour was within their right to smoke within their own home. The landlord also explained that although the resident was on a trial tenancy and would not normally grant permission for a transfer until the tenancy was assured, it would review the situation, if needed. The landlord also signposted the resident to the environmental team who could review the case and determine the level of severity.
7. The resident escalated his complaint on 16 July 2022 as he remained dissatisfied with the landlord’s response. He sent a further three emails on 17 July 2022 stating that he had come out of hospital with respiratory issues and that his neighbours were continuing to smoke and wanted the landlord to move him from his property.
8. The landlord provided a stage two response on 21 July 2022 where it said that:
   1. It did not have the right to ask people to stop smoking in their home environment and that no tenancy breaches had been made.
   2. It acknowledged the medical evidence which had been provided and that his home environment had had an impact on his health.
   3. As the resident was on a trial tenancy until January 2023, it had made the decision to convert the tenancy to assured tenancy. This meant that the resident was able to bid on other properties and also apply for a mutual exchange.
9. On 28 April 2023, the resident confirmed to this Service that he remained unhappy with the landlord’s response and was seeking compensation as he said the landlord had ‘ruined his life’.

Assessment and findings

10. The Ombudsman’s role is to determine complaints by reference to what is fair in all the circumstances and decide if the landlord is responsible for maladministration or service failure.
11. When investigating a complaint, the Ombudsman applies its dispute resolution principles. These are high level good practice guidance developed  from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution:
    1. Be fair – treat people fairly and follow fair processes.
    2. put things right, and.
    3. learn from outcomes.
12. This service recognises that the concerns the resident has reported have affected and caused distress to him. In cases concerning other neighbour’s actions, it is the Ombudsman’s role to assess the appropriateness and adequacy of the landlord’s actions in responding to the resident’s issues and the fairness and reasonableness of its response to the formal complaint. This does not include establishing whether a party is responsible for ASB; the investigation is limited to the consideration of the actions of the landlord in the context of its relevant policies/procedures as well as what was fair in all the circumstances of the case.
13. It is clear from the evidence provided to this service, that the smoking from neighbouring properties caused much distress to the resident. The resident felt compelled to make several reports to the landlord, local authority and police about the problems from March 2022. The bulk of the problems reported in the resident’s emails to the landlord related to the neighbour smoking and the impact it had on the resident. It is also noted that the times at which the resident reported the smoking was at times during unsociable hours, such as 4am.
14. When a landlord receives such reports from residents, the Ombudsman would expect it to respond within a reasonable time and explain what action, if any, it was able to take. The communication should also be clear and manage a resident’s expectations.
15. When the resident first informed the landlord of his dissatisfaction of the neighbours smoking and how it was affecting his health, the landlord appropriately responded: It managed the resident’s expectations, explaining that the reports of smoking would not give it cause to rehouse either resident of the neighbours, and suggested that he seek medical attention. The resident continued to send multiple emails to the landlord in April 2022 and requested a move to an alternative property in a rural location or supported housing due to the neighbours smoking, which he claimed was affecting him living in his home. On each occasion the landlord responded within a reasonable time frame and explained its position, which included:
    1. It was unable to move the resident to another property due to his neighbour smoking and that he is not eligible for supported accommodation.
    2. That the resident should seek medical attention and obtain medical evidence that his home was affecting his health.
16. The evidence available shows that the resident continued to email the landlord in May 2022, regarding the neighbour smoking and that it was having an impact on his health. Records show that the landlord took appropriate steps to show that it was listening to the resident’s concerns and contacted an external mediation service to try and assist with rebuilding the relationship between the neighbour and the resident. The landlord also met with the resident in his home to discuss his concerns, which again shows that the landlord was taking appropriate steps to try and put things right for the resident, whilst also managing his expectations and explaining that it was unable to stop others from smoking.
17. The resident raised a stage one complaint on 2 June 2022, which the landlord appropriately investigated and provided a detailed response to his concerns. It was reasonable for the landlord to re-enforce that it was unable to pursue tenancy action against the neighbour for smoking. The landlord also appropriately informed the resident of his options regarding how to move property.
18. In July 2022, the resident escalated his complaint and also sent multiple emails to the landlord about the impact the smoke was having on him and his health. The resident also provided copies of medical letters regarding his request to move. It is clear from the landlord’s final response that it had applied the Ombudsman’s dispute resolution principles, as whilst it was unable to ask the neighbour to stop smoking, it was attempting to put things right by converting the resident’s starter tenancy to an assured tenancy with immediate effect. By doing this, the resident was able to access more options to move, such as a mutual exchange.
19. Furthermore, it is assumed that the landlord also provided the local authority with the medical evidence as this Service has seen a copy of the local authority’s medical assessment outcome. The assessment concluded that that criteria for a medical priority move had not been met. This decision was in line with the decision the landlord had also made.
20. It is clear that the resident has been distressed by the situation, and the Ombudsman empathises with the impact that the reported smoking has had on him, and his desire to be moved. However, there is no evidence of maladministration in the landlord’s handling of reports of smoking within the block which affected the resident’s health.

Determination

21. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of reports of smoking within the block which affected the resident’s health.

Recommendation

22. While it does not appear to be an issue that the resident has raised directly with the landlord, the resident has told this service that he thinks the smell of smoke in his property may be due to a defect, allowing smells from neighbouring properties to enter his. The landlord may wish to carry out a property inspection to satisfy itself if this is the case or not.