Kingston upon Thames Council (202321048)
REPORT
COMPLAINT 202321048
Kingston upon Thames Council
26 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
- The complaint is about the landlord’s handling of:
- Strong cooking odours from the resident’s neighbour’s property.
- Smoking in the communal parts of the building.
Background
- The resident is a secure tenant of a 1-bedroom property in a block. The resident lives with her partner who lives with cancer, back, and shoulder pain.
- The resident’s partner acts as her representative. Throughout the rest of this report, the Ombudsman will refer to the parties as the resident.
- On 29 March 2022, the resident reported cooking smells coming from his neighbour’s flat. He said that they were cooking with Calor gas. The landlord told him that under its Antisocial Behaviour (ASB) policy this was not ASB. It investigated the allegation about the use of Calor gas and completed a Person Centred Fire Risk Assessment (PCFRA) on 8 April 2022. The PCFRA found that there was no fire risk or unsafe cooking practice within the resident’s neighbour’s property.
- The resident continued to report concerns around cooking and smoking smells. On some occasions these were in person to the landlord, and it said it could not smell anything. On one occasion it acknowledged a faint smell of cooking. The resident then raised a formal complaint about the issues on 19 September 2023.
- The landlord provided its stage 1 response on 5 October 2023. It told the resident it partially upheld her complaint as it continued to address her concerns but had not fully communicated its findings to her. The landlord:
- Told her about the findings of its PCFRA and explained that one of the questions asked specifically about unsafe cooking practices. This found there was no risk.
- Its member of staff had attended on 19 July 2023 following further reports of the cooking smell through her flat window. They did not evidence any smell during their visit.
- Following the visit, it asked for a surveyor to inspect her flat and her neighbours to find whether there is a problem with the ventilation/extractor fans in both properties. It would contact her for a suitable date and time for the inspection to take place.
- On 2 August 2023, her housing officer visited her neighbour in relation to the complaint about smoking in the communal corridor. They confirmed that they did not smoke in the communal corridor. There was currently no evidence to suggest that they smoked in the communal corridor.
- The resident contacted the Ombudsman on 5 October 2023 and explained her concerns. She explained the impact of the situation on the household, and said she had to keep her windows closed. She informed us of her partner’s diagnosis. She explained she wanted the landlord to address the complaint properly and take action against her neighbour.
- Following the Ombudsman’s intervention, the landlord provided the resident with a stage 2 response on 6 November 2023. It acknowledged that smoking in communal areas was a clear breach of tenancy conditions based on its no smoking and fire safety policies. It explained the actions it was taking to address her concerns. The landlord said that it agreed there was a lack of documented evidence that it interviewed or visited the alleged perpetrator in relation to the allegations. It said it would raise the importance of compliance with fire safety procedures and its no smoking policy to residents. It apologised about the poor handling and lack of documentation about its investigation.
Post complaint
- The landlord provided a second stage 2 response on 20 December 2023. It reiterated its findings around smoking in communal areas, and said it was working with her to investigate and act. It explained it had reviewed the actions taken and its stage 1 investigation. In response to the issues she raised, it explained the actions it had taken. These included raising the importance of compliance with fire safety procedures and it’s no smoking policy. It said it had also issued warning letters where there was evidence of smoking in communal locations.
- The resident told the Ombudsman on 3 January 2024 that she remained dissatisfied following the landlord’s final response. She said it had not fully addressed the issues in relation to the fire safety. The resident also clarified her partner’s tenancy status, and their health concerns. She said she felt the landlord was not doing anything to stop all the smoking in the communal parts that drifted into her property. The doctor had also told her partner that their breathing was worsening. As outcomes she wanted the landlord to:
- Address the smoking in their neighbours flat and communal parts. It was to take appropriate action to ensure the peace and enjoyment of her home.
- Listen, communicate and respond to complaints made in an effective manner.
- Move her partner to their own tenancy again away from the smoking to regain some good health.
Assessment and findings
Scope of investigation
- The resident told the Ombudsman on 25 November 2024 that her main concern was in relation to the air cleanliness in the building. She also raised several concerns including around the dates of completion of the landlord’s investigations. She reported she made several reports to the landlord orally but could not provide evidence to support these. The Ombudsman makes its determinations on an evidential basis. As such we will make any decisions in relation to the resident’s complaint using all the evidence available to us.
- Furthermore, there is no evidence that the resident raised these complaints with the landlord, or that they have exhausted the landlord’s complaint’s procedure in line with paragraph 42.a. of the Housing Ombudsman Scheme. As such the Ombudsman will not consider these issues within this investigation. Although the Ombudsman acknowledges the resident’s concerns in relation to the smoking and smells, these were not specifically about the cleanliness of the air. As such the landlord has not had the opportunity to investigate this issue specifically and respond.
- The resident has raised several complaints with the landlord about her neighbours. The resident has not raised these issues in her complaint to the Ombudsman. As such we will not consider them within this investigation report. The resident may wish to raise these issues with us if they remain within the 12-month timeframe provided under paragraph 42.b. of the Housing Ombudsman Scheme.
- The Ombudsman sympathises with the resident about the effects of the situation on their health. However, the Ombudsman is unable to consider this. The Ombudsman is unable to draw conclusions on the causation of, or liability for, any impact on health. The courts must decide on personal injury claims as they can consider medical evidence and make legally binding findings. However, the Ombudsman will consider the general distress and inconvenience the situation may have caused the resident.
- The resident has identified that she wants the landlord to move her partner to their own tenancy and away from the smoking to regain some good health. Asking that a landlord permanently move a resident is not within the powers of the Ombudsman. Such action would require a separate application to the landlord for it to assess.
Strong cooking odours from the resident’s neighbour’s property.
- The landlord told the resident the actions it took to address the resident’s concerns in relation to this issue. It explained that cooking smells did not amount to ASB according to its policy. It also arranged and completed a repair on 20 April 2022 to ensure that the ventilation systems in her kitchen and bathroom were functioning properly. It completed a PCFRA on 8 April 2022 which the resident disputes as she believes her neighbour was at work. Its evidence also shows that it completed a reviewed PCFRA checklist on her neighbour’s property on 15 November 2023 which showed no concerns.
- The landlord completed a joint inspection of both properties on 11 January 2024 and instructed a specialist to check the ventilation. These were all reasonable actions taken by the landlord to investigate the resident’s concerns. Based on this, the Ombudsman finds that there was no maladministration.
Smoking in the communal parts of the building.
- The resident said her upstairs neighbours smoked in the communal areas, and that the smoke travelled into their property. Following the resident’s reports, the landlord said it visited the upstairs neighbour. The occupier of the property admitted to smoking but only inside their property. As such the landlord had no evidence that they were smoking in the communal area.
- The Ombudsman does not dispute that cigarette smoke may well travel from the neighbour’s flat and communal areas into the resident’s flat via the windows, as she reported in her complaint. We also understand why the resident may be especially sensitive to the cigarette smoke and that this may well be distressing. However, without evidence of wrongdoing, the landlord is unable to act against the resident’s neighbour.
- Someone smoking in their own home is an everyday activity which would not form antisocial behaviour. As such, the landlord does not have any obligation, as part of its housing management function, to stop residents smoking in their homes. Despite the lack of obligation to do so, the landlord chose to visit the neighbour with a view to resolving the issues the resident was experiencing. It has also demonstrated that it acted by sending letters to the wider block around the concerns. These were reasonable actions for it to take.
- The resident told the Ombudsman that the landlord had not responded to his concerns around the smells. The evidence suggests that the landlord was acting around the concerns but had not communicated appropriately with the resident. It provided a response to his complaint on 5 October 2023 and acknowledged its poor communication in its stage 1 response.
- It said in its stage 2 response that smoking in the communal area was a tenancy breach. It however told the Ombudsman that it was not. This raises concerns with the landlord’s approach. The landlord also acknowledged in its stage 2 that its record keeping was poor as it had not appropriately documented its interviews with the alleged perpetrator. However, there is no evidence the failure to appropriately record its interviews caused any detriment to the resident. This is because the landlord still addressed the issue by sending letters to the occupants of the building. It offered the resident an apology. Having considered all the above, it has appropriately apologised for its communication failings, and there is no evidence that its poor record keeping led to a poor service provision to the resident. Based on this, the Ombudsman finds there was no maladministration in the landlord’s handling of the resident’s reports of smoking in the communal parts of the building.
Determination (decision)
- In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration with the landlord’s handling of:
- Strong cooking odours from the resident’s neighbour’s property.
- Smoking in the communal parts of the building.
Recommendation
- The landlord should clarify whether a breach of the Smoke-free (Exemptions and Vehicles) Regulations 2007, around smoking in communal areas amounts to a breach of tenancy.
- Consider helping the resident with approaching the environmental health team to see if they can complete an air purity test to assure her that there are no issues with the cleanliness of the air within the communal areas or his property.
- Explain the resident’s tenancy options to him in relation to a transfer from the property.
- Provide confirmation of its intentions with these recommendations to both the resident and Ombudsman.