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Anchor Hanover Group (202225553)

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REPORT

COMPLAINT 202225553

Anchor Hanover Group

16 April 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 smoking near the property.

Background

  1. The resident is the assured tenant of the property, a flat in a complex (the complex) of approximately 30 units managed by the landlord. He has lived there since 2021.
  2. The landlord does not allow smoking in the common parts of the complex. Residents are permitted to smoke in their own properties including their gardens. In the summer of 2022, the resident reported that his neighbours smoked in their garden and the smoke was harming his health. He was concerned that passive smoking is a health hazard. In June 2022, the local manager told him that only the landlord’s senior management could change the policy. 
  3. The resident complained formally to the landlord in August 2022, stating that the current policy failed to protect the majority of residents and favoured an antisocial minority, and that the policy infringed his human rights. The landlord met with the resident to discuss his concerns before providing its stage 1 response on 23 August 2022. It said that it would not change its policy. It said it had reminded residents not to smoke in the common parts and offered to help him move him to another property.
  4. The resident asked to escalate his complaint to stage 2. He said the landlord had failed to take account of the views of non-smokers and the seriousness of the health risk. He said that smoking was antisocial behaviour (ASB) and should be banned entirely from the complex. He considered it unfair to ask him to move and, in any event, if he did, this might not solve the problem.
  5. In its stage 2 response of 25 November 2022, the landlord said it would not change the policy and repeated its offer of help with a move.
  6. The resident was not satisfied with this response and asked this Service to investigate. He said the landlord had failed to recognise the true dangers of passive smoking and the impact on him and that he wanted smoking banned in the complex.

Assessment and findings

Scope of the investigation

  1. The resident has said that the landlord’s policies and failure to ban smoking at the complex have had an impact, or could have a future impact, on his health.  However, this Service is unable to establish a causal link between reports of health issues caused, or potentially caused, to complainants by the actions or policies of landlords. The resident may wish to seek legal advice about this. Questions of medical risk cannot be decided by this Service.
  2. With respect to the resident’s assertions of human rights infringement, it is not for the Ombudsman to make a formal determination on whether a landlord has infringed a resident’s human rights. Such matters are better decided through the legal process. The resident may wish to seek legal advice on this point. This Service can consider whether a landlord has considered its responsibilities under human rights legislation or whether its actions have been demonstrably unfair.

landlord’s handling of the resident’s reports of smoking near his property

  1. The Health Act 2006 (the Act) s.2 restricted the right to smoke in many public places in England and Wales. It did so by creating “smoke-free premises” in which it is an offence to smoke or to fail to take reasonable steps to prevent people from smoking. Smoke-free premises include almost all premises which are enclosed or “substantially enclosed” and accessible to the public. They include places of work, public houses, cinemas and so forth.
  2. The Smoke-free (Exemptions and Vehicles) Regulations 2007 (the Regulations) set out premises which are exempted from being “smoke-free”. Regulation 3 says that private dwellings are exempt.
  3. The landlord’s smoking policy says, “smoking is permitted by residents within their own dwellings”. Its information sheet adds that they should minimise the spread of second-hand smoke into communal areas.
  4. In his stage 1 complaint, the resident said that knowledge of the dangers of passive smoking had increased and that the landlord should, therefore, expand the ban on smoking to private as well as public areas.
  5. The landlord’s policy complies with the provisions of the Act and the Regulations. The policy goes further and attempts to balance the conflicting interests of residents. It asks smokers to consider, even within their own homes, the health of others nearby.
  6. On receiving the resident’s complaint, the landlord approached the local council to see whether its policy complied with the relevant laws. The local authority’s environmental health department, which has responsibility for both ASB and environmental pollution said that it did not know of any powers which could prevent smokers from smoking in their own homes and stated that smoking was not ASB.
  7. Overall, the landlord considered the resident’s reports and complaints carefully. It considered his rights alongside those of the neighbours. It offered to move him as, having taken advice, it saw no way to grant his request for a change in policy. Its policy is proportionate and in line with its legal responsibilities.  There was, therefore, no maladministration in its actions or decisions. 

Determination

  1. In accordance with paragraph 52 of the Scheme, there was no maladministration in the landlord’s handling of the resident’s reports of smoking near the property.