London Borough of Ealing (202014662)

REPORT

COMPLAINT 202014662

Ealing Council

20 January 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

The resident’s complaint is about the landlord’s handling of his complaints of Anti Social Behaviour (“ASB”) by neighbours and the impact of the neighbours smoking.

Background and summary of events

Complaint scope

The resident provided a further update to this service on 28 March 2022. He advised that he had recently received a written warning letter from the landlord, the police and the Safer Partnership. This appears to be a reference to a Community Protection Written Warning issued to the resident on 8 March 2022. This set out that the landlord was reasonably satisfied that he was responsible for unreasonable conduct including playing loud music, allowing a member of the household to verbally abuse neighbours and making malicious calls to emergency services
In his communication to the his service, the resident set out issues he had with the letter, including about the noise decibel levels and who decided that malicious reports had been made. He set out ongoing issues he had with his neighbours, including playing loud music and ongoing concerns about smoking and the impact this was having on his household.
The Ombudsman clarifies that they are not able to consider whether the landlord acted reasonably with respect to the warning letter as they are not able to consider events that occurred after the landlord’s final response to the complaint. This is because the landlord has not had an opportunity to consider and respond on this complaint ground.

Summary of events

The resident and his family live in a two bedroom ground floor maisonette. The resident has a secure tenancy with the landlord.
The Ombudsman notes that throughout the period of the complaint there has been extensive communications between the parties, including numerous comprehensive submissions by the resident. Whilst not specifically referred to below, the Ombudsman confirms that these have been reviewed and considered as part of the investigation.
The landlord issued a stage one complaint response to the resident on 16 March 2021. It set out the resident’s complaint as being about:
1. His neighbours smoking within their home and the odour being transferred to his property;
2. The alleged use of counterfeit cigarettes by his neighbours;
3. Direct threats of violence made by his neighbours to him and his family;
4. A request for an environmental health assessment;
5. His neighbours disposing of used cigarettes from their window.
The landlord set out that it was limited in its power to prevent a resident from engaging in lawful activity in their home. It stated that concerns about the supply of counterfeit goods should be investigated by the appropriate authorities – which was not the landlord. It set out that the resident’s complaints had been investigated and noted that the neighbour had made counter allegations of ASB by the resident. It set out that it had specifically requested that the neighbour not engage in behaviour that might be considered threatening towards the resident. It set out that it was not the appropriate entity to undertake an Environmental Health assessment. Whilst it did have powers regarding statutory nuisance – which can include smoke – cigarette smoke is generally not actionable as a statutory nuisance. It would take further steps to investigate the disposal of cigarettes and take action if appropriate. It offered to facilitate mediation with the neighbour.
The resident was not satisfied with the landlord’s response and on 16 April 2021 the landlord issued a stage two complaint response. It set out its understanding that the resident’s complaint was that:
1. he would like the landlord to collect evidence regarding the neighbours’ use of counterfeit cigarettes;
2. he felt that the landlord had not addressed repeated threats of violence and intimidating behaviour by his neighbour;
3. he wanted sight of the landlord’s correspondence with his neighbour;
4. he was concerned about the use of illicit substances by his neighbour;
5. he was being disturbed by amplified music from his neighbour’s property.
The landlord stated its position was that:
1. It was not in a position to collect used cigarettes and it was not able to investigate the possible use of counterfeit cigarettes. It advised the resident that it had been in contact to discuss the inappropriate disposal of items including cigarettes into the communal space.
2. It confirmed its view that threatening behaviour by a neighbour would be unacceptable, criminal and may constitute a breach of tenancy. An investigation by the Safer Communities team concluded that it was not able to realistically pursue the allegation further. However, it had given the neighbour clear advice about the implications of ASB. It noted that the neighbour had themselves made allegations of ASB by the resident and stated that it had advised the neighbour to also report allegations.
3. It advised the resident that it was not able to release correspondence sent to the neighbour due to data protection issues.
4. It observed that consuming certain controlled drugs was a criminal offence and noted that it was important that the police be informed. It set out the ways in which the resident could report the matter.
5. It noted that the resident had not contacted the noise and nuisance team, which had a responsive service (within one hour).
6. It noted that the resident had declined the offer of mediation.
The resident responded stating that he was not “seeking revenge”. He stated that he was wanting to exercise his human right to live safely and in a healthy environment. He reiterated his concerns that the neighbour was smoking and using drugs and this was exposing him and his family to toxins. He emphasised the detrimental impact this was having on his family, including being unable to sleep in bedrooms. He noted that “Pollution control has told us … there is nothing they can do”. The resident requested that the complaint be escalated to stage three.
The landlord provided a stage three complaint response to the resident on 28 May 2021. The landlord summarised the resident’s complaint as being that:
1. The resident would like the landlord to review its decision following its investigation of smoke coming from the neighbour’s property;
2. The resident feels that the landlord is not demonstrating a property duty of care regarding ASB by the neighbour;
3. The resident would like the council to amend its policy to allow for statutory powers to include investigation and enforcement regarding smoke related odour from one premise to another.
The landlord stated that it did not have legislative powers to enforce and prohibit domestic smoking within residential premises. Smokefree Regulations prohibit smoking tobacco and shisha pipes in enclosed public spaces and communal areas. The resident’s complaint is about the personal use of cigarettes and shisha within the neighbour’s premises. The landlord has no legal powers over this. It further notes that there is no prohibition on smoking in the tenancy agreement between the landlord and its secure tenants. It notes that where there is evidence of illegal drug use the landlord make take steps for breach of tenancy conditions, but the landlord does not have the right to enter and search a resident. Instances of this should be reported to the police.
The response noted that under section 79 of the Environmental Protection Act 1990, smoke can amount to a statutory nuisance. However, its position remains that the odours and smells at the neighbours property are unlikely to be deemed to be an actionable statutory nuisance. Smoking within one’s own home is considered to be a “reasonable use” and the landlord would not have the power to require someone not to smoke in their own home. It noted that any concerns about the smoking of cannabis, which is illegal, should be reported to the police.
The landlord went on to state, regarding the resident’s complaint that it had not exercised a proper duty of care, that historical concerns had been addressed with a warning and words of advice to the neighbour. There had not been any recent reports of the neighbour threatening the resident. It advised the resident to report any new threats to the police.
The landlord set out its conclusion that it was satisfied that its approach to “noise nuisance” had been well considered, however it was not an appropriate course of action. It stated that officers would visit the property to try and resolve the issue from a building repairs perspective, if that was appropriate.
After the stage three complaint the landlord engaged in further correspondence with the resident to explore whether new or additional issues were being raised that had not been dealt with. In its letter of 10 June 2021 the landlord noted that it had carried out a proactive visit and had not found any structural concerns.
The resident contacted the police on 1 August 2021 advising it that he had been threatened by his neighbour. The resident subsequently met with police on 6 August 2021 to discuss the matter. The police determined that it unable to take action but stated that an update had been provided to the Safer Neighbourhoods Team.
On 1 November 2021 the council advised the resident that the issue did not meet the threshold for a Community Trigger.

Assessment and findings

The crux of the resident’s complaint is that the landlord has failed to take adequate steps to stop ASB by the neighbour. One aspect of the resident’s complaint is about the impact of the neighbour’s smoking. Whilst related, the Ombudsman has considered this as a separate issue as smoking does not, in itself, necessarily fall within the category of ASB.

Anti Social Behaviour

ASB case management is a crucial aspect of a landlord’s service delivery. Effective use of an ASB procedure enables the landlord to identify appropriate steps to resolve potential areas of conflict, improve landlord/tenant relationships and improve the experience of tenants residing in their homes. ASB cases are also often the most challenging for a landlord as, in practice, options available to a landlord or chosen by a landlord to resolve a case may not include a resident’s preferred outcome, and it can become difficult to manage expectations.
This Service understands the resident’s situation and recognises that the concerns he has reported have affected and caused distress to him and his family. In cases relating to ASB, it is not the Ombudsman’s role to determine whether ASB occurred or who is responsible. It is also not within the Ombudsman’s authority or expertise to decide on matters such as tenancy breach in the same way as the courts, nor does it decide on what correct courses of action were based on hindsight and later events. However, the Ombudsman can assess how a landlord has dealt with reports it has received in the timeframe of a complaint, and assess whether the landlord has followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case.
In considering the landlord’s handling of the matter in this case, it is important to clearly note that the Ombudsman starts from the position that it is not the role of the landlord to investigate and determine whether the resident’s neighbour has engaged in criminal conduct. Rather, the landlord’s obligation is to take appropriate action where there are allegations, or findings, of criminal activity.
The background to this complaint is one of allegations of ASB by the resident and counter allegations by his neighbour. It is relevant for the Ombudsman to acknowledge at the outset that ASB cases involving a number of parties with allegations and counter allegations of the extent presented in this case can be amongst the most difficult and intractable for a landlord to resolve. That difficulty is not the fault of any party, but it is important that the Ombudsman’s assessment of the landlord’s actions recognises this fact.
The Ombudsman acknowledges the resident’s view that the landlord has not taken adequate steps to investigate the matter. The evidence indicates that the landlord has taken a number of steps in response to the resident’s complaint. These steps include:
1. Attending the property at different times to assess the impact of the alleged ASB and smoke odour;
2. Communicating with the neighbour about their obligations to not engage in ASB and to not communicate with the resident in an inappropriate manner;
3. Referring the resident to the appropriate authorities who have the powers to undertake the investigations and actions the resident was seeking, including the police;
4. Considering the actions, or lack of action, of relevant authorities such as the police and taking this into account in determining it was not appropriate to take action against the neighbour;
5. Offering to facilitate mediation; and
6. Offering to explore alternative solutions, such as building repair works.
There has been police involvement in the matter. It appears that the police have communicated with the neighbour about their obligations regarding ASB, however the police have not taken action against the neighbour. The evidence also indicates that the police have communicated with the resident about his obligations regarding ASB, following reports made to the police about the resident’s behaviour.
In the circumstances, and noting that it has not been established that there has been criminal activity by the neighbour, the Ombudsman is satisfied that the landlord has taken reasonable steps to investigate and resolve the matter. It has also communicated in a reasonable manner with the resident, taking into account the volume of the resident’s communications with the landlord.
The Ombudsman therefore finds that there has not been a service failing by the landlord with respect to its handling of the resident’s complaint of ASB by neighbours.

Smoking

One of the resident’s primary points of complaint is that the neighbour smokes in their property. He complains that the odour of this permeates his property and causes inconvenience and health problems for him and his family.
The landlord’s position is that, as the properties are residential, smokefree and environmental protection legislation does not apply. Smoking within a residential property is considered to be a reasonable activity subject to a consideration of any nuisance legislation. In this case, it does not consider the threshold of a statutory nuisance to have been reached.
The Ombudsman starts from the position that the default position is that the resident’s neighbour is entitled to smoke legal substances in their domestic property. It does not appear that there is a clause in the tenancy agreement with the landlord prohibiting smoking and therefore the landlord has no right to take action pursuant to the terms of the tenancy agreement. Whilst it is theoretically possible for smoking to have such an impact on neighbouring properties as to constitute a statutory nuisance, the threshold hold for this is high. Whilst the resident may of course not smoke illegal substances in their property – it is not for the landlord to investigate and determine criminal activity.
In this case the landlord has visited the property on a number of occasions when the resident said that the smell of smoke could be detected. On all these visits the landlord found that there was no evidence of an unpleasant odour. The landlord also investigated whether there was disrepair to the property which may be allowing smoke to permeate the resident’s property but found that there was none. The landlord signposted the resident to appropriate authorities to complain to regarding criminal activity. If criminal activity had been found, it may be appropriate for the landlord to take action. However, it does not appear that there has been any such finding.
The Ombudsman acknowledges the resident’s discomfort regarding smoking. However, the Ombudsman does not consider that there has been a failing by the landlord. The landlord has investigated the matter and found that the situation does not meet the threshold for a statutory nuisance. This is a reasonable conclusion in the circumstances. There has been no breach of the terms of the tenancy agreement. There has been no established criminal activity regarding smoking. The neighbour is entitled to engage in the lawful activity of smoking within the confines of their residential property.
The Ombudsman finds that there has not been a service failing by the landlord with respect to its handling of his complaints about the impact of the neighbours smoking.

Determination (decision)

In accordance with section 54 of the Housing Ombudsman Scheme, the Ombudsman finds that there has been no maladministration by the landlord with respect to it handling of the resident’s complaints of Anti Social Behaviour by neighbours and the impact of the neighbours smoking.

Reasons

The landlord has taken a number of steps in response to the resident’s complaint about ASB by the neighbour. In the circumstances, and noting that it has not been established that there has been criminal activity by the neighbour, the Ombudsman is satisfied that the landlord has taken reasonable steps to investigate and resolve the matter.
The landlord has investigated the resident’s complaints about the impact of the neighbour’s smoking. It has found that the situation does not meet the threshold for a statutory nuisance. There has been no breach of the tenancy agreement terms. There has been no established criminal activity regarding smoking. The neighbour is entitled to engage in the lawful activity of smoking within the confines of their residential property

Recommendations.

As part of this investigation, the Ombudsman reviewed the information provided to the landlord’s residents on its website, and noted that the information contained and links provided were out of date, in particular the page on the Respect Agenda. Whilst this did not impact on how this particular case was managed, the Ombudsman recommends that the landlord carries out a review and update of this information.