Birmingham City Council (202123995)

REPORT

COMPLAINT 202123995

Birmingham City Council

22 May 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

1. The complaint is about the landlord’s handling of the resident’s reports of anti-social behaviour (ASB).
2. This Service has also considered the landlord’s complaint handling.

Background

3. The resident is a secure tenant of the landlord, living in a flat.
4. On 7 May 2021, the resident reported that her neighbour was smoking cannabis in his property, and the smell was entering her property. The landlord contacted her to discuss the reported issues on 17 May 2021 and she confirmed the situation had improved. She then reported recurrences of the smell on 4 June 2021 and 8 July 2021.
5. The resident raised a complaint on 30 July 2021 as she was dissatisfied with the landlord’s handling of her reports of the smell of cannabis. She wanted the landlord to visit the property to assess the smell and queried why the landlord was unable to.
6. In the landlord’s final response, it stated that it had taken sufficient actions to investigate the resident’s reports of ASB, as it had visited both properties to assess the smell and had contacted other residents in the block to establish whether they had experienced the issue.  It had not found evidence of the smell of cannabis and noted it had only identified a “light musky damp” smell in the resident’s boiler cupboard. It had closed the ASB case, as any action following the investigation had to be proportionate.
7. In the resident’s complaint to this Service, she felt the landlord had dismissed her concerns and had not considered all the evidence she had provided. She was dissatisfied with the way the landlord had conducted the property visits and she wanted it to visit while her neighbour was smoking cannabis. She also advised that the smell had impacted her health and sleep.

Assessment and findings

Scope of investigation

8. The resident has raised concerns regarding the health implications of the reported ASB issues. The Ombudsman does not doubt the resident’s comments about her health. However, it is beyond the remit of our service to determine whether the smell of cannabis impacted the resident’s health issues. This investigation has considered whether the landlord’s response to the resident’s concerns about the reported ASB was in line with its legal and policy obligations and industry best practice and whether the response was fair and reasonable under the circumstances.
9. The resident has also raised concerns regarding the landlord’s handling of her reports of a leak in the communal area. In the interest of fairness, the scope of this investigation is limited to the issues raised during the resident’s formal complaint. This is because the landlord needs to be given a fair opportunity to investigate and respond to any reported dissatisfaction with its actions prior to the involvement of this Service. Any new issues that have not been subject to a formal complaint can be addressed directly with the landlord and progressed as a new formal complaint if required.

ASB

10. It is important to note that it is outside the Ombudsman’s role to establish whether the ASB reported was occurring or not. Rather, our role is to determine whether the landlord’s response to the resident’s reports of ASB was in line with its legal and policy obligations and whether its response was fair in all the circumstances of the case. As such, the Ombudsman is not able to confirm whether the resident’s neighbour was smoking cannabis in the property, but consideration will be given to how the landlord handled the resident’s reports.
11. The resident initially reported ASB on 7 May 2021. The landlord’s ASB records show that it had booked a visit for it to attend, but there is no evidence that it was subsequently completed. It is noted that the landlord was limited in the actions it could take at the time due to COVID-19 lockdown restrictions, but this should have been clearly communicated with the resident. In its stage one complaint response, the landlord stated that it had not discussed a property visit with the resident, which is contrary to its records, so the landlord should have identified and apologised for any miscommunication.
12. In line with the landlord’s ASB policy, following a report of drug abuse, it should contact the resident within five working days. The landlord contacted the resident on 17 May 2021 to discuss her report, which was slightly outside of its response timeframe. However, the resident advised that the reported issues had stopped, so it was unlikely the delay had a detrimental impact. It was reasonable that the landlord used its discretion to keep the ASB case open, at the resident’s request, in order to monitor the issues.
13. The resident reported a recurrence of the cannabis smell on 8 July 2021. The landlord acted appropriately as it advised the resident to keep a diary of any further incidents, and it contacted the neighbour regarding the reports. There is no evidence that the resident provided the diary sheets to the landlord. As the landlord had provided the correct instructions for the required next steps in the investigation, the resident would be expected to be forthcoming with the information to enable it to proceed.
14. It was appropriate that the landlord took steps to investigate the reported smell as it visited the resident’s property on 20 August 2021 and 25 August 2021, and the neighbour’s property on 2 September 2021. The landlord was unable to identify the smell of cannabis in either property during the visits, but it noted a “‘light musky damp” smell in the resident’s boiler cupboard.
15. The resident raised concerns to this Service regarding the validity of the landlord’s findings, as she said the landlord’s visits were brief, and the smell varied in potency throughout the day. The landlord noted the visits lasted ten minutes, and it visited on multiple occasions, so it is deemed that it spent a sufficient amount of time at the property to adequately assess whether there was a smell present.
16. In relation to the resident’s concerns about the differing levels of potency of the smell throughout the day, it is positive to note the landlord had reattended the property on 20 August 2021 following its initial visit earlier in the day, as the resident had reported a recurrence of the smell. This demonstrates that the landlord had considered the resident’s feedback and took steps to ensure its investigation was representative of her experience, but it was still unable to identify the smell of cannabis in the property. However, it is noted that the resident advised the landlord on the 25 August 2021 that the smell was more potent at night and it failed to address her concerns. As a result, it did not take reasonable steps to manage the resident’s expectations regarding the actions it could take, which caused her to be disappointed with the its investigation.
17. It is noted that there was a slight delay in the landlord visiting the neighbour’s property, but the evidence provided demonstrates that it took reasonable steps to arrange the visit. The resident raised concerns to this Service that the landlord advised her neighbour of the appointment, which meant he had the opportunity to ventilate the property and remove the smell. While it is understood that this may have caused frustration to the resident, the landlord would be obliged to inform the neighbour of its attendance prior to the visit in order to access his property.
18. The landlord also took reasonable steps to obtain evidence from other residents that may have been affected by the smell of cannabis, as it sent a survey to neighbouring properties to complete. It is noted that one other resident confirmed the smell of cannabis, but only outside of the block, not in their property. It was therefore somewhat inappropriate that the landlord advised the resident in its stage two response that two neighbours had confirmed there was no smell of cannabis present. While the additional evidence would not necessarily be considered conclusive to support the resident’s ASB reports, the landlord could have taken further steps to address the issue.
19. The resident presented further evidence to the landlord regarding additional witnesses to the smell and she advised this Service she was dissatisfied the evidence was not considered. The landlord would not necessarily be obliged to pursue the evidence, as the parties did not have a contractual relationship with the landlord and were not directly impacted by the issue. In this case, as the landlord had taken sufficient steps to obtain evidence using other methods, it would not be necessary for it to consider the additional statements. However, it would have been helpful for the landlord to have managed the resident’s expectations regarding the evidence it would consider.
20. The landlord liaised with the appropriate support agencies, including the police and the neighbour’s support worker, in order to investigate the resident’s reports. Further details of the information regarding this correspondence cannot be included in the report due to data protection restrictions. However, the Ombudsman is satisfied that the landlord obtained sufficient evidence to determine the neighbour was not smoking cannabis in the property.
21. Landlords are expected to follow an evidenced based approach to ASB, to ensure their services are fair and an efficient use of resources. Therefore, it was reasonable for the landlord to require evidence of the reported smell of cannabis in order for it to proceed with any legal or tenancy action. As there was not sufficient evidence to confirm that the neighbour was smoking cannabis in the property, the landlord was limited in the actions it could take.
22. It was appropriate that the landlord explained to the resident the reasons for closing the case and advised that its actions must be proportionate and consider any mitigating factors. It was also reasonable that it had signposted the resident to support services. The landlord noted that it had not offered mediation as it had not identified ASB. Mediation can be a useful tool even when ASB has not been identified, as it can help to resolve disputes between residents. It is therefore recommended that the landlord reviews its approach to mediation for future cases.
23. Overall, the landlord took reasonable steps to investigate the resident’s reports and ultimately it was unable to identify the smell of cannabis. The landlord was therefore unable to take action against the resident’s neighbour as it did not have sufficient evidence that he was engaging in ASB. Although this report has highlighted instances where the landlord’s handling of the case could be improved, it is determined the issues do not amount to service failure as it did not impact the outcome of the case.

Complaint handling

24. In line with the landlord’s complaint policy, it should respond to stage one complaints within 15 working days and stage two complaints within 20 working days. It also states it will always provide the contact details for the relevant Ombudsman within its stage two response.
25. The resident raised a complaint on 30 July 2021 and the landlord issued its stage one response on 4 August 2021, thus in line with its response timeframe. The landlord issued a further response, labelled as a complaint, on 10 September 2021. However, the landlord has advised this Service that the resident did not escalate the complaint, so this was not its final response. Regardless, it is clear that the letter could have been considered as a final response by the resident, particularly as the complaint policy does not outline any further stages. The correspondence did not explain how the resident could escalate the complaint either with the landlord or this service, so it likely caused confusion to the resident.
26. The resident contacted this Service on 31 January 2022 as she was dissatisfied with the landlord’s response, and she did not know how to escalate the complaint. This Service subsequently advised the landlord to send a final response on 31 January 2022 and 4 March 2022, and it was then issued by the landlord on 18 March 2022, which was an unreasonable delay. The landlord’s failure to act in line with its complaint handling policy meant additional time and effort was necessitated from the resident in order to receive a final response. Furthermore, the resident’s referral rights for independent review by this Service were significantly delayed. As a result, there was service failure in the landlord’s handling of the complaint and compensation has been awarded below.

Determination

27. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its handling of the complaint about the resident’s reports of ASB.
28. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in the way it handled the complaint.

Orders and recommendations

Orders

29. The landlord is ordered to pay the resident £50 compensation due to its complaint handling failings.
30. Proof of this payment should be sent to this Service within four weeks of the date of this report.

Recommendations

31. The landlord should review its staff training requirements regarding complaint handling to ensure that it refers residents to this Service in its final response.