bpha Limited (202002074)

REPORT

COMPLAINT 202002074

bpha Limited

2 February 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 response of reports of smells coming into the property from a neighbouring property.

Background and summary of events

The resident is an tenant of the landlord, at the property, having commenced on a starter tenancy on 19 April 2010.
The landlord’s ASB policy sets out the approach the landlord will take in responding to reports of ASB, this includes discussing the issues with both parties and working with partner agencies.
The landlord has a two-stage complaints process, whereby a complainant may request escalation of their complaint to stage two ‘appeal’ where they remain dissatisfied with the outcome at stage one.
On 23 March 2020 the resident telephoned the landlord to notify it that her neighbour was smoking cannabis in the property, which was coming into her home and affecting her. The landlord advised that the smoking of cannabis was a criminal activity that should be reported to the police and also advised that she should contact Environmental Health if she felt it was affecting her. The resident referred to other residents in the block smoking outside and asked the landlord if it could write to the block to advise them that they should not do this, which the landlord said it could not do. The landlord suggested the resident write a “friendly note” to the neighbour and post it through his door.
On 31 March 2020 the resident contacted the police about her neighbour smoking cannabis and was advised that they were unable to gain entry into the neighbour’s property or to arrest him for this. The police also contacted the landlord to explain this.
On 3 April 2020 the resident made a complaint to the landlord about its handling of her report of her neighbour smoking cannabis; she felt that the landlord had given incorrect advice in referring her to Environmental Health and the Police and in suggesting she write a note to him, stating that the other agencies were unable to help and writing a letter would only sour relations further. She reiterated that the cannabis smoke entering her property, was causing her health problems.

In response, the landlord telephoned the resident to discuss the issue. It agreed to telephone her weekly thereafter to help her feel supported. The landlord also made a safeguarding referral for the resident because it was concerned about some of the contents of her communications and her wellbeing and it suggested help and support agencies she could contact.
On 6 April 2020 the landlord wrote the resident, acknowledging her complaint and said it would contact her by 8 April 2020 to discuss timeframes in which it would provide a response.
In a telephone call on 7 April 2020, the landlord explained that people are allowed to smoke in their properties, albeit not drugs. It explained that it would write to residents at the block regarding cannabis use and said that it had spoken with the police about the issue. The landlord said it had also spoken with the neighbour concerned, who denied smoking cannabis but that it would ask repairs to look at the ventilation system and to check that the soil stacks were sealed between the floors, post-lockdown, with regards to the smells coming into the resident’s property. It found that it had acted in accordance with its policies and guidance in dealing with the issue.
The following day, on 8 April 2020 the landlord sent its stage one response to the complaint. The complaint was not upheld, with the landlord finding that it had taken the matter seriously and undertaken a number of steps in seeking to address the issue, reiterating the steps it had explained it had taken. It also advised the resident on her housing options.
Between 9-12 April 2020, the police visited block and on an unknown date the landlord also attended the block and no cannabis could be smelt.
The resident continued to contact the landlord about the issue and on 9 April 2020, emailed it stating that the cannabis was being smoked at unsociable hours which is why it could not be smelt. The landlord responded on the same day, apologising that the resident continued to feel that it was not taking her concerns seriously and assured her it was, repeating the actions it had taken. The resident asked the landlord to attend “now”, to which it explained that it was not possible due to resourcing issues.
On 12 April 2020 the police and the landlord carried out a joint visit to the block and posted a letter though the neighbour’s door. On the same date the resident reported that the neighbour had been aggressive towards her.
On 15 April 2020, the landlord telephoned the resident, as agreed and it was discussed that the calls were going well. During the call, the resident advised that the cannabis use had stopped for a week and then started up again.
On 17 April 2020 the landlord discussed the issues with the resident on the telephone at length. During the call the resident expressed that she was dissatisfied with the lack of action she felt the landlord had taken and was concerned about bumping into her neighbour in the street as he knew it was her who had made the complaint and had already accused her of harassment. She said she had spoken with the police who had visited her and the police said they had not heard from the landlord. She expressed that she was suffering and on medication and options for moving were discussed.
Three days later, on 20 April 2020, a further call was had between the landlord and resident where a potential move was discussed.
On 23 April 2020 the resident contacted the landlord to state that the police had sent a warning to the resident. The landlord responded that it could take action based on this letter but would also write to him. The resident stated she did not want to move property herself as this was her home. She also requested extractor fans which the landlord said it would arrange an inspection to assess the need for these after lockdown.
Around 27 April 2020 the resident advised that when the neighbour was alone things seemed to be OK; there was more of a problem when there were visitors. In response the landlord considered what, if any, steps it could take given the fact that the country was in national lockdown and there was information that the neighbour was having visitors.
On 28 April 2020 the resident emailed the landlord stating that the neighbour had been smoking cannabis and that this was the first time since 20 April 2020. The landlord responded stating it would report the matter to the police.
Between 29 April and 4 May 2020, the resident contacted the landlord expressing concerns about her health from breathing in the smoke and having researched extractor fans, was concerned that they would not work.
On 6 May 2020 the resident contacted the landlord stating she had not heard from it regarding the weekly phone call and had not heard about it convening a meeting with the maintenance team to discuss the smells seeping into her property, which it had said it would do. The landlord responded stating that it had agreed it would contact her on a particular day, which it would do and that the maintenance team would need to visit the property. It said this would be explained to her when they spoke.
On 14 May 2020, in a telephone conversation between the landlord and resident, the resident reiterated that the smell of cannabis was affecting her health. During the call, the resident also asked about her moving options.
There continued to be phone discussions between the landlord and resident, including on 18 and 21 May 2020, where the resident also referred to the neighbour banging doors. The landlord advised that nobody else had reported issues with smells but reassured her that it was continuing to liaise with the police about the situation.
The landlord remained in contact with the police throughout the duration of this case and the police patrolled the area again, including on 19 May 2020. On the same date the landlord spoke to the neighbour again, who denied the issues.
Contact between the landlord and resident continued with the resident expressing her dissatisfaction that the landlord had not called her on time and as agreed. On 28 May 2020 the resident emailed the landlord stating her dissatisfaction with the way in which it was handling her complaint, in particular, with her housing officer who she said “gets upset” when the resident asks questions, makes “false promises” and took the resident’s decision to seek advice from the Housing Ombudsman as “a threat”. The resident also made reference to the falsification of entries on her ASB file, having been provided with the information following making a Subject Access Request.
On 29 May 2020, the landlord responded, apologising for what seemed to be a difficult situation with the housing officer and for any upset and frustration caused. It confirmed that the resident had every right to seek independent advice and said it would speak with the member of staff involved and asked the resident to let it know if the situation reoccurs.
Around 1 June 2020 the surveyor telephoned the resident to discuss inspecting the property. During the call the surveyor was obliged to ask the resident generic questions regarding COVID-19 symptoms, as a health and safety mechanism. The resident answered yes to some of the questions, which meant that the surveyor could not attend. The resident also stated that she did not want anyone to attend the property as it was too small. The surveyor suggested that the resident take photographs of any areas that she believed to be a problem instead and to send them in so that the landlord could look at them.
On 3 June 2020, the landlord wrote to the resident setting out its position in respect of the complaint. It explained the steps it had taken as follows:
1. Made a safeguarding referral; the landlord apologised that the resident felt the landlord had no right to do this but explained that it was concerned following some of what she had said in her correspondence to it and its duty of care required it to do this;
2. It had made weekly calls to her to help the resident feel supported;
3. Contacted residents at the block about smoking cannabis (no responses or enquires following this had been received);
4. Liaised with the police about the issue;
5. Offered a surveyor to attend and inspect the property, although this could not go ahead due to the resident reporting COVID-19 symptoms, and;
6. Explained housing options.
The landlord noted there were no other reports of issues and that no further action could be taken.
On 4 June 2020 the resident sent an email to the landlord attaching photographs.
On 17 June 2020 the landlord contacted the resident to discuss the issues. The police had confirmed that it could not enter the neighbour’s property without a warrant, despite the resident stating that she could still smell weed. The landlord said it would talk to its legal team to ask advice on dealing with the situation. The resident continued to voice he dissatisfaction with the individual dealing with the issue and wanted to be assigned another member of staff. On the same day, the landlord liaised with the police further about the situation, as it was considering applying for an injunction.
On an unknown date in July 2020, in a discussion between the landlord and resident about an inspection of the property for any gaps, the resident reiterated that she did not feel a visit would be helpful as her home was too small, but suggested the landlord visit her neighbour’s property. In response, the landlord contacted the neighbour in order to arrange a visit.
On 7 July 2020 the resident emailed the landlord asking at what stage her complaint was. In her email she continued to express her dissatisfaction with the landlord’s response to her reports of cannabis smoking. She did not believe a full and thorough investigation had been undertaken into the issues and was further disappointed that the landlord had not responded to some of her emails.
The following day the landlord responded and expressed condolences for the resident’s recent loss, which she had also talked about in her email to it. The landlord said it would respond to her fully the following week.
On 14 July 2020 the landlord wrote to the resident to update her on her complaint. It explained that it required to carry out an inspection in order to ascertain whether the issue of smells seeping into her home was due to the property design.
The landlord asked for details of the other individual who could support the allegations of ASB – something the resident had mentioned – explaining that it could not take action, including the ultimate action of eviction, without additional evidence. The landlord also provided some information regarding a managed move as the resident had expressed a wish to move.
On 20 July 2020, the resident sent a further email requesting at what stage her complaint was at and whether its response had been a “final response”. The resident continued to site her dissatisfaction and disappointment with the landlord.
Later that day the landlord responded, advising that the complaint was at stage one of the complaints process and that it could be escalated to its stage two ‘appeal’ phase where an independent panel would consider the case. It offered to arrange a telephone conference for this to take place or alternatively, offered to wait until restrictions had eased, to enable a face-to-face panel meeting.
On 21 and 24 July 2020, the resident again reported a smell of cannabis, as well as banging on the walls and shouting. In respect of the cannabis smell, the resident asked if the caretaker could come and visit to witness it.
The landlord responded, advising that it had an independent witness that the tenant was not at home at the time of the reported cannabis smell. It asked if it could do anything to further support the resident as it recognised that she was under a lot of stress and grieving. It also said it would ask Environmental Health about the provision of noise recording equipment, as there was evidence of the neighbour banging the resident’s door and shouting her name.
On 4 August 2020 the complaint was heard by an appeal panel and on 14 August 2020, the landlord sent its stage two outcome letter, in which it made the following findings:
1. The landlord noted that it had offered to inspect the property in order to identify gaps and that the resident had not been happy for this to take place, citing that her flat was too small and preferring the neighbouring flat to be inspected and sealed instead. The landlord said it would contact the neighbour in order to access the property and assess whether there was a problem there that could be resolved. It explained that it may still need to insect the resident’s flat, however;
2. It apologised that the resident felt that it had taken an inconsistent approach but explained the actions it had taken which included visiting the block prior to the COVID-19 lockdown, at which it found no evidence of cannabis being smoked. The police had also visited on a number of occasions and had confirmed a smell of cannabis;
3. It had discussed the issues with the neighbour and explained his tenancy obligations. It recognised that the relationship between the resident and her neighbour had irretrievably broken down and that there had been counter allegations. It said it had asked the neighbour not to contact the resident and explained that it was working towards a longer-term solution but could not guarantee a timeframe, and;
4. It apologised that the resident felt it had misinterpreted a request to move property and said it would not bring this up again. It provided her with information regarding the Right to Buy, however, which she had requested.

Post complaint

On an unknown date, the landlord attended and sealed the gaps that were identified as possibly allowing smells to seep through. On a further unknown date, the resident’s neighbour left the property.

Assessment and findings

In cases of ASB or odour transference, as is predominantly the case here, it is not the role of the Ombudsman to determine whether the ASB or issue/s occurred, but instead to assess how the landlord responded to the issues it was notified of and whether its responses were in accordance with its policies, procedures and best practice and appropriate and reasonable in all of the circumstances.
Having been notified of the issue of smoking cannabis which was purported to have been seeping into the resident’s property, the landlord was required to investigate and where appropriate, to take action and the landlord is entitled to a reasonable period of time within which to do this. In this case, the issue was reported on 23 March 2020 and a formal complaint made on 3 April 2020, less than two weeks later and the complaint was made following only the one, initial report of the issue. Notifying the landlord of ASB or otherwise does not constitute a complaint; a complaint is something separate which follows dissatisfaction at, usually, the landlord’s action or inaction.
At the point of making the complaint, the resident had not sufficiently allowed the landlord to address and resolve her concerns, which meant that the complaint and ASB case ran alongside each other concurrently which is an unusual and difficult position; it is difficult because in assessing the landlord’s action or inaction, this only related to one report at that time, with its further and future responses yet to unfold.
Nevertheless, the landlord was able to assess how it responded to the one reported incident and it found that it had responded appropriately, not upholding the complaint in its stage one response. The landlord’s stage one response, however, followed the landlord taking additional actions to those it initially took, indicating a recognition that it had not done enough to put things right. The landlord missed the opportunity to acknowledge this in its complaint response and this lack of acknowledgement perhaps fuelled further dissatisfaction from the resident and the sense that it was not taking her concerns seriously.
The landlord’s suggestion that the resident post a friendly note through the neighbour’s door, whilst undoubtedly well-intentioned, was misguided. Whilst it is often best in the case of neighbour disputes that the individuals are able to discuss and amicably resolve the issues themselves – which is ordinarily achieved through face-to-face discussion and not note-writing – this was not an appropriate way forward in this case, due to the nature of the reported incident and the tenant in question.
The landlord’s reference to reporting the issue to the police and Environmental Health in its first response further gave the impression – albeit not necessary the intention – to pass responsibility elsewhere and not to seek to resolve the issue itself.
Whilst it is the case that the landlord could not ask all of its tenants to stop smoking in their homes – residents are entitled to do so – or outside the block, it was entitled to write a letter regarding the smoking of cannabis and it rightly recognised this following receipt of the complaint and referred to as an action it would take in its stage one response.
Responding to a complaint is an opportunity for the landlord to demonstrate that it has heard and understood the issues raised and provides a chance for it to put things right and to set out steps it has taken or will take to do so. The actions the landlord took were appropriate and reasonable. This is because the landlord acted in accordance with its ASB policy in speaking to the individual concerned about the allegation and of liaising with other agencies, in this case, the police, as well as making the safeguarding referral following its concern about the wellbeing of the resident and seeking to find her support.
The action of writing to the block further demonstrated that the landlord had taken the matter seriously. The offer of inspection and filling in of any gaps was appropriate because it provided a tangible pathway to identifying and resolving an issue, should there be one with the building. This inspection had to take place after the lockdown restrictions had eased because at that time, only emergency repairs were permitted by landlords and so it was right that this was put on hold for a future date.
In carrying out any inspections or repair after the lifting of restrictions, the landlord was obliged to ask questions of the resident about COVID-19 symptoms and she answered that she did have a cough. To ensure the health and safety of its staff, it was not able to attend in this instance.
There was a reasonable expectation on the resident to behave reasonably in working with the landlord to resolve the complaint and her assertion that her property was too small to be inspected was not helpful and could be seen to obstruct the process. The Ombudsman notes that gaps identified in the property have now been filled although it is unclear whether these were gaps in the resident’s home or her neighbours.
Where a complaint of ASB is made, the alleged perpetrator should be provided with an opportunity to respond and where relevant, to change their behaviour and put things right, which the landlord enabled in this case. However, in the face of denial of the allegation and limited evidence, the landlord was restricted in what further action it could take.
The other actions the landlord took over time, including inspecting the block, liaising with the police, seeking advice on how to proceed, keeping in regular phone contact with the resident, reminding the neighbour of his tenancy obligations, asking the neighbour not to contact the resident and discussing moving options with the resident were all appropriate and reasonable responses to the situation and proportionate to the issue being reported. Although the resident felt that the landlord was misinterpreting her request for action in that she was not seeking her neighbour to be evicted but instead, the cannabis smoking to be stopped and/or the smell stopped from entering her home, the landlord took all reasonable non-legal steps to remedy this.
The resident had requested information regarding housing options and the landlord responded to this. It was also reasonable that it provided information regarding moving home, given the upset, frustration and uncomfortableness the resident stated she was feeling and the impact she said the smell was having on her health. This Service has not seen evidence of the landlord offering this information in order to encourage her to move out, as the resident felt was the case. The landlord later apologised that the resident had felt like this, which demonstrated a reasonable and measured response to what was a difficult and protracted situation.

Determination

In accordance with paragraph 54 of the Scheme, there was no maladministration by the landlord in respect of the complaint.

Reasons

There was no maladministration insofar as the complaint about the landlord’s handling of reports of the smell of cannabis seeping into the property, had been made following only one report and was not indicative of a chain of events or inaction on the part of the landlord.
Whilst the landlord missed an opportunity to do more initially, it immediately recognised this and put this right, undertaking a number of actions over a significant period of time. The landlord’s actions and approach is indicative of it taking the issue seriously and seeking to satisfactorily resolve it for the resident.