Welwyn Hatfield Borough Council (202013840)

REPORT

COMPLAINT 202013840

Welwyn Hatfield Borough Council

29 June 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 complaint is about the landlord’s handling of the resident’s reports of Anti-Social Behaviour (ASB), namely, the use of cannabis by her neighbours.

Background and summary of events

Background

The resident has been a Secure Tenant, in respect of the property, since October 2016.
The property is an adapted four-bedroom end of terrace house.
The resident has confirmed that her daughter is vulnerable and requires use of a wheelchair.
The resident has complained about two sets of neighbours, at different properties. For the purpose of this report, they have been referred to as Neighbour A and Neighbour B.

Legal and policy framework

ASB policy

The landlord has provided this Service with a copy of its ASB policy. This sets out the landlord’s approach to managing ASB and explains that:
1. The landlord will contact the resident following reports of general ASB, likely to include behaviours such as drug use, within 5 working days.
2. The landlord will seek to take incremental, but proportionate action based on factors such as the seriousness; persistency; harm caused to the victim or community; vulnerability; whether the perpetrator is co-operating; and the effectiveness of previous action, if any.
3. Cases will be closed where there is no evidence to progress it and/or no further action can be reasonably taken.

Scope

Although raised in some of the resident’s correspondence, the Ombudsman has not commented on any matters relating to the resident’s fence or her dissatisfaction with the disability adaptations at her property. This is as matters concerning the disability adaptions have already been investigated by this Service under reference 201800845, and matters concerning the resident’s fence are being considered under reference 202016527.
What’s more, while the resident has asserted that she had been reporting the use of cannabis for several years, and without any appropriate action taken by the landlord, this investigation will only consider matters which occurred from November 2019 onwards. This is as the Ombudsman cannot see that there was any communication with the landlord, or indication of the resident’s dissatisfaction with its service in 2019, until November.
The Ombudsman can see that the landlord took steps to investigate the alleged ASB in December 2018 and with no further communication/reports, closed the resident’s case in February 2019. In the Ombudsman’s opinion, any subsequent dissatisfaction with this should have been raised within a reasonable time – which would have been within six months of the decision to close the case being made.
As per paragraph 39(e) of the Housing Ombudsman Scheme, the Ombudsman will not consider complaints which, in the Ombudsman’s opinion, were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within six months of the matter arising.
Finally, the resident has suggested that as a result of the landlord’s failure to take action to address the cannabis use, the health of her children has been affected. While this may be the case, it is beyond the expertise of this service to reasonably determine a causal link between the landlord’s actions (or lack of) and the deterioration of the resident’s children’s health. The Ombudsman has therefore made no comments in relation to this. Should the resident wish to pursue this matter, legal advice will need to be sought.

Summary of events

On 6 November 2019 the resident wrote to the landlord. She reported the smell of cannabis emanating from Neighbour A’s property and asserted that the landlord had allowed this behaviour to continue for three years without reprimand.
The landlord replied on 8 November 2019. It explained that it would contact Neighbour A, but reminded the resident that the Neighbour A had previously been written to and visited in relation to this matter. At this time, both the police and its staff were unable to witness the smell of cannabis emanating from the property, and this restricted the type of action that could be taken.
The landlord advised that a Community Protection Notice Warning (CPNW) could be served, followed by a Community Protection Notice (CPN), however breach of the notice would need to be proved if any further enforcement action was to be taken. The resident was advised that this course of action would be followed if the warnings were ignored.
The Ombudsman can see that the landlord issued its warning letter to Neighbour A on the same day.
On 25 November 2019 the resident suggested that her family had again been subject to the smell of cannabis over the weekend. She asserted that this was not just from Neighbour A, but Neighbour B too.
On 27 November 2019 the landlord advised the resident to continue to make reports of the use of cannabis to both the police and itself. This would enable it to attend the area to investigate her reports.
On 27 January 2020 the landlord wrote to the resident. It explained that following the resident’s previous report, it had spoken to both neighbours who denied use of cannabis at their properties. It noted that it had not received any reports since this time and had been unable to witness the smell of cannabis upon visiting previously. It explained the case would therefore be closed.
On 21 July 2020 the resident wrote to the landlord. She questioned what the landlord planned to do about neighbour A as:
1. Her daughter could smell cannabis on a daily basis and had become physically sick from the “pungent smell”.
2. Her family had been housed in between two drug users, but the issue mainly occurred with neighbour A as the smell swept through her daughter’s window.
3. It was impossible for the landlord or the police to witness this unless they lived at the address. She stated that the landlord had not come and spoken to her children about the issue.
4. The landlord needed to speak with her children, daughter’s carer and another resident who was happy to discuss the drug situation on the street. She stated that her children should not be exposed to this and emphasized that this needed to be registered as a formal complaint.
On 28 July 2020 the landlord wrote to the resident with its stage one response. It stated:
1. On 5 November 2018 the resident expressed dissatisfaction that nothing had been done to stop Neighbour A from smoking cannabis. She was advised that her case had been closed due to a lack of contact. The resident reported that Neighbour A was still smoking cannabis but was now doing so in the house and not the garden, making it more difficult to detect. The resident was advised to call the landlord when this was smelt (during working hours) and a visit would be made. She was also advised to contact the police to report the matter.
2. Upon contacting the ASB Officer, a visit was undertaken to witness the cannabis smell. At this time however, no cannabis could be smelt despite walking around the perimeter.
3. Following continued reports, the ASB officer visited Neighbour A along with the NO on 14 December 2018. Neighbour A denied the allegations and no evidence of cannabis use could be seen in the property. With no further reports, the case was closed in February 2019.
4. The resident contacted it again in November 2019 to advise that cannabis could be smelt. A further letter was sent to Neighbour A to advise that reports were again being received of cannabis emanating from the property. This was again denied by Neighbour A however, and as Neighbour A had recently been drug tested, documents were offered to prove that there had been no drug use. It was advised by Neighbour A that people did, however, stand in the service road behind the garden smoking cannabis.

The landlord explained that as no evidence had been found, no enforcement action could be taken. It reiterated however that it would visit to witness the smell following any future reports. The resident was again advised to contact the police and was informed that they would be asked to patrol the area.

On 12 August 2020 the resident responded to the landlord’s stage one response. She stated:
1. She had been complaining for nearly four years about her family’s exposure to drugs.
2. Due to her caring responsibilities, work, and study, she was unable to report as frequently as the landlord would like. The problem had not gone away, however. She acknowledged that the landlord had visited to witness the smell, however highlighted that this was an impractical task as the smell dispersed by the time the landlord attended. She also did not believe it was practical to call the police as they did not see this as a priority.
3. She had asked the landlord to speak with her children, daughter’s carer, and neighbour, but the landlord had not.
4. She was aware of the circumstances surrounding neighbour A’s drug tests however the use had not ceased permanently. This had only stopped for a short period of time.
5. Other residents had also raised concerns regarding the behaviour and use of drugs. The resident stated that Neighbour A and B often smoked together and there had been many reports prior to her moving in, and since, from other residents. Another neighbour had asked her to raise this matter with the landlord too.
6. She was disgusted that she had been moved into a property in the middle of two known drug users.

The resident advised that she was not in a position to move as the property was heavily adapted for her daughter’s needs and so her family was forced to endure the issues. She requested that the landlord escalate the matter to stage two.

On 15 September 2020 the landlord provided the resident with its final response. The landlord reiterated several of the points made in its stage one response and asserted that while it had agreed to undertake unannounced visits where reports were made, the resident also needed to call 101, particularly outside of working hours, in order for the police to attend. The landlord explained that it jointly investigated reports of drug use and in many cases, relied on police investigations on weekends and evenings.
The landlord reminded the resident that any action taken needed to be proportionate and supported by evidence. With cannabis use, enforcement action could not be taken where one person’s word was denied by another and no evidence existed to corroborate the allegation. The neighbour survey had not supported the resident’s reports and no complaints had been made at the time the resident moved in. The landlord added that properties were let on a needs and eligibility basis. It could not preclude a property being let on the basis of allegations. The landlord explained that the ASB Officer would contact the resident in the following week to discuss how her case could be moved forward.
Displeased with the landlord’s response, the resident referred her complaint to this Service on 9 February 2021. The Ombudsman notes that several reports of ASB were still being made to the landlord during this time.

Assessment and findings

The Ombudsman has considered the landlord’s approach to the resident’s reports of cannabis use by her neighbours, and although the resident remained dissatisfied following the landlord’s final response, the Ombudsman has been unable to identify a failure in service.
Following reports of inappropriate neighbour activity, the Ombudsman would expect a landlord to investigate any allegations made, and to attempt to accrue evidence, before taking proportionate and suitable action. As the landlord’s ASB policy explains, what is proportionate in the circumstance can be based on a series of factors such as the seriousness of the behaviour, the harm caused, or the frequency of the activity (amongst other things).
Due to the limited reports made by the resident, it appears that the landlord was unable to determine or corroborate the frequency of the activity. It was therefore appropriate, and in line with the ASB policy, that the landlord took incremental steps while encouraging the resident to continue to make reports to both itself and the police to assist with the evidence gathering process.
The Ombudsman notes that the landlord issued Neighbour A with a warning letter in November 2019 following the resident’s reports of ongoing cannabis use. While it might have been equally appropriate to provide Neighbour B with a warning letter too, the Ombudsman is content that the landlord confronted both neighbours with the allegations (as it confirmed in January 2020) and cannot see that any further reports were made until July 2020, when the resident raised her stage one complaint.
As a result of the lack of contact, it was also reasonable that the landlord closed the resident’s ASB case in January 2020. As explained within the landlord’s ASB policy, cases are generally closed where the landlord is unable to obtain evidence to progress it.
While the resident raised in her stage one response that her daughter was impacted by the smell of cannabis on a daily basis, the suggested frequency of this issue was not reflected in reports to the landlord. The Ombudsman has seen no evidence of cannabis activity between January – July 2020 being reported. It was therefore not unreasonable that no further action was taken against the resident’s neighbours.
The Ombudsman notes that the resident also expressed dissatisfaction that she had been housed in-between two alleged drug users. In response to this, it was reasonable for the landlord to explain that its allocation of housing was based on need and eligibility, rather than the alleged behaviours of neighbouring tenants.
In respect of the landlord’s approach, the landlord emphasized within much of its correspondence that it had been unable to witness the cannabis smell on the occasions it had visited. While the Ombudsman accepts this, the Ombudsman also appreciates that witnessing the smell would have been difficult (as raised by the resident) as the smell of cannabis could have dispersed by the time the landlord arrived at the property. Still, the Ombudsman has not considered this to be an unreasonable approach. The Ombudsman is additionally content that the landlord advised the resident that the police would also be asked to patrol the area. This would have created opportunities to witness the behaviour and was also appropriate in encouraging multi-agency partnership to act on the issue.
The Ombudsman notes the resident’s dissatisfaction that the landlord did not speak with her children, daughter’s carer, or recommended neighbour to verify her reports. The Ombudsman agrees that speaking with the resident’s recommended neighbour may have offered some insight and credibility to the reported activity. In the Ombudsman’s view, however, as there were limited reports made to the landlord, this approach may have been premature and the landlord’s lack of action here was mitigated by its attempt to witness the matter itself. What’s more, in relation to the resident’s children, it was reasonable for the landlord to conclude that their reports would have reflected the resident’s assertions. It was therefore unnecessary to speak with her children in order to progress the investigation.
The Ombudsman appreciates the resident’s explanation that due to her work, caring and study responsibilities, she was unable to report the ASB as frequently as the landlord would have liked. In the absence of these reports, however, the landlord was limited in the steps it could reasonably take. What’s more as the neighbours denied the activity (offering proof on one occasion in the form of a drug test), the landlord was unable to favour the resident’s account over that of the neighbours. It was appropriate that the landlord explained this within its final response.
Finally, while the resident did not wish to contact the police as she did not believe her report would be prioritised, it was appropriate for the landlord to recommend this. This is as although the landlord had a responsibility to ensure that its tenants were not involved in criminal activities, and to protect surrounding residents, the use / handling of drugs was also a criminal matter and therefore properly fell within the jurisdiction of the police.
As the landlord explained in its final response, it often relied on police investigations or jointly investigated reports of drug use to accumulate evidence and to determine the appropriate course of action. It was therefore fair that the landlord continued to advise the resident to make contact with both itself and the police.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in respect of the landlord’s handling of the resident’s reports of ASB, namely, the use of cannabis by her neighbours.

Reasons

The Ombudsman has arrived at the above determination as in the Ombudsman’s opinion, the landlord responded fairly to the resident’s reports of cannabis use by her neighbours. Due to the sporadic nature of the resident’s reports and the limited evidence available, the Ombudsman accepts that the landlord was limited in the enforcement tools that it could employ, but notes that it still acted in accordance with its ASB policy. The Ombudsman is content that the landlord highlighted the importance of accumulating evidence and encouraged the resident to make reports to both itself and the police (explaining the police’s role in progressing the investigation). This was appropriate. It was also reasonable for the landlord to agree to visit the vicinity, where reports had been made, to witness the use of cannabis and engaged the police patrolling too. Adding to this, the landlord did take up the allegations with Neighbour A and Neighbour B via face-to-face visits and warnings. In the absence of proof to corroborate the resident’s accounts, and with minimal reports being made (despite the suggestion that there was everyday use), this service is satisfied that the landlord’s approach was proportionate at this time.