Yorkshire Housing Limited (202215862)

REPORT

COMPLAINT 202215862

Yorkshire Housing Limited

4 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 anti-social behaviour.

Background

2. The resident held a joint assured shorthold tenancy with his wife from 8 July 2020. The property was a two-bedroom flat. The resident informed this Service on 3 August 2023 that they were no longer living at the property.
3. The reports of anti-social behaviour relate to the resident’s neighbour who will be referred to as “Tenant A” within this report. The tenancy agreement for Tenant A has not been provided for this investigation. However, it has been assumed that the tenancy terms will be the same as those for the resident.
4. The resident made reports from 27 June 2022 to September 2022 that since Tenant A moved into the property, there was the smell of cannabis. The resident informed the landlord that he did not have a good understanding of drugs, so could not be sure that it was cannabis that he smelt. He advised that the smell could possibly be heroin or the burning of incense sticks. The resident advised that the smell made his wife feel dizzy and caused headaches. Also, due to the smell they were unable to open their windows.
5. On 7 November 2022, the resident complained to the landlord that it had failed to act following his reports regarding the smell of drugs from Tenant A’s property and drug addicts were living next door. Though the landlord had visited Tenant A’s property, it had not taken his reports seriously. The resident expressed that his preferred outcome was for the landlord to stop the smell entering his property as he wanted to feel safe.
6. The landlord acknowledged the complaint on 11 November 2022 and informed the resident that it would respond within 10 working days.
7. The landlord provided the complaint response on 23 November 2022. A summary of the findings were:
   1. The resident did not provide an incident diary though he was advised in July 2022 to keep one.
   2. Interviews were carried out with Tenant A who denied the allegations and after interviewing witnesses, it had not received any evidence to support the resident’s allegations.
   3. The resident made another report about the cannabis in August 2022.
   4. An incident diary was received on 15 September 2022. Visits were carried out on 28 September 2022 and 2 November 2022 and it did not find any evidence of cannabis usage.
   5. It had reviewed ring doorbell footage and there was insufficient evidence to conclude that a drug transaction was taking place.
   6. It concluded that it did not have evidence of cannabis use by Tenant A or his partner. Tenant A had denied the allegations and the reported times of the incidents by the resident were when Tenant A and his partner were not at home. It had not received any other reports about the smell of cannabis from other residents.
8. The resident remained dissatisfied with the landlord’s complaint response and escalated his complaint on 29 December 2022.
9. The landlord acknowledged the escalated complaint on 3 January 2023 and informed the resident that it would respond within 20 working days.
10. The landlord’s Head of Service contacted the resident on 12 January 2023 to establish the most convenient time to speak with him regarding the complaint.
11. On 16 January 2023, the Head of Service spoke with the resident. The resident advised that he had been affected by the smell of cannabis since June 2022. The resident was asked to describe the smell and from his account, the landlord advised the description did not match the smell of cannabis. The resident was also informed that if Tenant A or his partner was burning heroin, it was unlikely that the resident would smell this through the walls of his property. In response to the landlord’s question about whether any of the resident’s visitors had smelt the cannabis, the resident advised that his family did not live nearby, therefore they had not visited. The resident advised that the smell of the cannabis caused him to cough and also advised of his and his wife’s medical conditions – diabetes and depression.
12. During the conversation on 16 January 2023, the resident was provided with information on how to obtain alternative housing, including a mutual exchange. The resident repeated that his preferred outcome was for Tenant A and/or his partner to stop smoking cannabis. Before the call ended, the landlord agreed to carry out another visit to Tenant A’s property.
13. The landlord provided its final complaint response on 20 January 2023. It confirmed that it had not received evidence of drug use by Tenant A or his partner. Also, the allegations had been denied by Tenant A. It had contacted environmental health who advised that there was insufficient information to take action and it had found that neither Tenant A or his partner were “known to the police” as the resident had stated.
14. The complaint response also advised that it had carried out a further visit to Tenant A’s property and it did not identify any strong smells. It confirmed that it had no grounds to take formal action and the anti-social behaviour case had been closed. However, if the resident could provide evidence of the cannabis use, it would carry out a further investigation.
15. The resident remained dissatisfied and escalated the complaint to this Service.

Assessment and findings

16. It is appreciated that the resident and his wife were upset and distressed by the landlord’s handling of the reports of cannabis use. The resident’s feelings are understood and it is appreciated that the impact of anti-social behaviour can be severe.
17. Nevertheless, the Ombudsman’s role is to consider how the landlord addressed the resident’s concerns and to determine whether the landlord’s approach was appropriate and proportionate to the issues reported and the evidence available at the time.
18. The resident has stated that the smell of cannabis had an adverse impact on his health and that of his wife. While this Service is an alternative to the courts, it is unable to establish legal liability or whether a landlord’s actions or lack of action have had a detrimental impact on a resident’s health. Nor can it calculate or award damages. The Ombudsman is therefore unable to consider the personal injury aspects of the resident’s complaint. These matters are likely better suited to consideration by a court or via a personal injury claim.
19. Looking at the facts of the case and the landlord’s actions in response to the resident’s reports, its actions regarding the smell of cannabis were on the whole appropriate and proportionate.
20. The resident alleged that Tenant A who lived next door was smoking cannabis and possibly drug dealing. In such cases, the landlord would need strong evidence to show that Tenant A was breaching the terms of his tenancy before it is able to take enforcement action.
21. The available evidence shows that the landlord took appropriate steps to investigate this issue during late 2022. It carried out announced and unannounced visits to Tenant A’s property. It spoke to Tenant A and his partner and it was satisfied that there was no evidence of drug use at the property at the time of its visits.
22. The landlord was also satisfied with the explanation provided by Tenant A and his partner about their work commitments meaning that it was unlikely that they were at home at the times stated on the incident diaries (completed by the resident). It also spoke with other residents and third parties to establish whether anyone else had noticed the alleged cannabis smell at the property. Furthermore, it reviewed the diary incident sheets and ring camera footage. These actions by the landlord were all appropriate, reasonable and demonstrated that the landlord had taken the resident’s concerns seriously.
23. The landlord’s records show that it responded reasonably to the reports of the smell of cannabis and explained to the resident that it had been unable to corroborate his reports. Given the lack of clear evidence despite the investigations it undertook, it was reasonable for the landlord to conclude that it could not confirm that Tenant A had used or dealt cannabis.
24. It is noted that the resident remained dissatisfied with the landlord’s response to his reports of cannabis use by Tenant A. However, the evidence shows that the landlord was unable to gather evidence to support the resident’s assertion. This limited the action that the landlord could take.
25. The evidence shows that the resident reported the smell of cannabis from Tenant A property on 27 June 2022. In accordance with its anti-social behaviour procedure, within 5 working days it discussed with the resident the anti-social behaviour report. It also wrote to Tenant A to advise of its intention to visit on 7 July 2022 to discuss the resident’s report.
26. The landlord visited Tenant A on 7 July 2022. After the interview with the resident and the inspection of the property, the landlord concluded that there was no further action to be taken. This was reasonable as Tenant A had denied the allegations, explained that his work contract prohibited drug use and the landlord did not see any evidence of cannabis use in the property.
27. The landlord wrote to the resident on 22 July 2022 advising that the anti-social behaviour case was being closed as it had not received any evidence to support their allegations. This was appropriate.
28. Around 3 weeks later, the resident made a further that they could smell cannabis from Tenant A and or his partner. The landlord spoke to the resident on 18 August 2022 to establish the times of day that the incident occurred and whether the resident had actually witnessed Tenant A or his partner smoking cannabis. The landlord acted appropriately by reviewing the incident diary provided by the resident from 7 July 2022 to 17 August 2022. However, from what can be seen, the landlord did not take any action following its review of the incident diary. This was a shortcoming albeit it was unlikely that it would have led to a different outcome.
29. The resident made another report on 8 September 2022 that Tenant A was using incense within his property and the smell was making him ill. While the resident may have disliked the smell of the burning of the incense, the use of incense is not forbidden under the terms of the tenancy.
30. The landlord spoke to the resident on 15 September 2022 and agreed to carry out a further visit to Tenant A. The landlord spoke with the Tenant A’s partner who maintained that they did not use cannabis. Also, the landlord was informed that the property was empty during the day while she and Tenant A were at work.
31. The landlord sent the resident anti-social behaviour closure letters on 28 September 2022 and 15 November 2022 which repeated that following its visit to Tenant A, it had no evidence that cannabis was being used. As the resident had indicated that they wished to move from the property, the landlord appropriately provided information on ways that they could explore doing so, including through mutual exchange.
32. Despite its efforts, the landlord was evidently unable to obtain independent witnesses to support the resident’s allegations of cannabis use or drug dealing by Tenant A or his partner. Therefore, it was reasonable that it did not commence tenancy action against Tenant A.
33. It is noted that the resident stated that he was not sure what the actual smell was that he was complaining about. It was appropriate that the landlord requested that the resident describe the smell and when he did so, the resident’s description of the smell ranged from cannabis, heroin or from the burning of incense sticks.
34. The landlord’s records show that it obtained advice from environmental health and the police regarding the resident’s reports. The advice received from its partners did not form part of its submission to this Service. Therefore, it is not possible to confirm the specific details of that advice. it is important that complete records are provided to this Service for investigation so that we can confirm that the landlord took appropriate actions and followed its policies and procedures. A recommendation is made about this later in the report.
35. The landlord’s anti-social behaviour policy states that informal tools are available such as the use of mediation. It is noted that this was offered and declined by the resident which demonstrated that the landlord considered the case in line with its policy.
36. Ultimately, the landlord acknowledged the resident’s concerns and demonstrated that it investigated these appropriately. The landlord’s decision not to take enforcement action against Tenant A was reasonable as it did not have the necessary evidence to do so despite its investigations and liaison with other agencies.

Determination

37. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s reports of anti-social behaviour.

Recommendations

38. It is recommended that the landlord reviews its record keeping practices to ensure that it keeps a record of all correspondence acquired during the anti-social behaviour investigation.