Derwent Housing Association Limited (202110835)

REPORT

COMPLAINT 202110835

Derwent Housing Association Limited

12 May 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 response to the residents reports of cigarette smoke from the flat above entering her property.

Background

2. The resident is a shared-ownership leaseholder of the property which is a flat within a block of similar properties. The landlord is the freeholder of the building. The resident’s neighbour lives in the flat above the resident.
3. The resident raised a complaint with the landlord in August 2021 related to cigarette smoke entering her property which she believed to be coming from her upstairs neighbour’s property. She said that she had been reporting this issue for a number of years and had previously approached the local authority’s Environmental Health department who had advised the resident to contact her landlord. The landlord had previously arranged for mediation between her and her neighbour which had been successful for a few months but the relationship had again broken down. She noted the impact the issue was having on her mental and physical health and expressed concern that there was a structural defect which was allowing the smoke from above into her property.
4. In response to the resident’s complaint, the landlord apologised for its failure to complete an inspection of the property. It noted that it had attempted to assist the resident by offering advice and mediation. It carried out an inspection of the property on 9 September 2021 and found no structural issues or vents which would be contributing to the smoke moving into the resident’s property. It noted the resident’s comments about replacing her ceilings and said that this would only be considered if repair issues were found. The landlord confirmed that the resident’s neighbour was permitted to smoke in their own property as frequently as they liked and advised that it had not experienced any overpowering smell of smoke when it had visited the upstairs property. it acknowledged that the resident wished to have an independent inspection completed and said it would consider any future reports from either and independent inspection or the Council’s Environmental Health. It also confirmed that it would inspect the property as quickly as possible if the property filled with smoke as the resident had suggested. The landlord offered the resident £50 compensation in recognition of its poor communication and the delay in completing an inspection of the property. 
5. The resident referred her complaint to this Service as she remained dissatisfied with the landlord’s response and did not feel that the landlord had fully investigated the issues she was experiencing, or understood the impact it had on her life. She wanted the landlord to take further action to prevent the smoke coming into her property.

Assessment and findings

6. The resident has explained to the landlord and to this Service how her health and well being have been affected by the smoke entering her home. It is beyond the remit of this Service to consider whether there is a link between the smoke and the resident’s mental and physical health. The resident therefore may wish to seek independent advice on making a personal injury claim if she considers that her health has been affected by any action or lack thereof by the landlord.
7. The resident’s lease states that the landlord is responsible for the structure of the building and the resident would be responsible for any repairs needed to the internal parts of the property. As such, in this case the landlord would be responsible for ensuring that there were no structural issues contributing to the smoke entering the resident’s property.
8. The landlord has confirmed that both the resident and her neighbour are shared ownership leaseholders in the building. There is no evidence to suggest that the neighbour had breached their lease agreement by smoking within their own home, and there are no general regulations or rules that would prevent them doing so. Given that the neighbour is fully entitled to smoke in their home, there were limited steps the landlord could take. A landlord would usually only be expected to take action in such circumstances if some form of structural or repair issue was allowing the smoke to enter the resident’s home, regardless of the impact on the resident.
9. In this case, the landlord inspected the resident’s home and found no apparent repair or structural issues causing the smoke ingress. The presence of smoke in the resident’s home is not, in an of itself, evidence of a structural fault. Because of that, and in the absence of any other such evidence, there was nothing further it could meaningfully be expected to do. It was, however, appropriate and reasonable for the landlord to remain open to possible future remedial action if any subsequent investigations or surveys arranged by the resident identified the need in regard to something the landlord is responsible for.

Determination

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