East Riding of Yorkshire Council (202211160)

REPORT

COMPLAINT 202211160

East Riding of Yorkshire Council

22 August 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 complaint is about:
1. The landlord’s response to the resident’s reports of anti social behaviour.
2. The landlord’s decision to place the resident in a particular band under its allocations policy.
3. The landlord’s handling of the complaint.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
The Ombudsman may not consider complaints which, in the Ombudsman’s opinion, fall properly within the jurisdiction of another Ombudsman, regulator or complaint handling body.
The resident had been on the landlord’s housing register since April 2021. In June 2022 the resident reported antisocial behaviour to the landlord. As part of his complaint, he felt that the impact of cannabis fumes on his health should be taken into account with regards to his position and band on the waiting list.
Under the terms of the Memorandum of Understanding between the Local Government and Social Care Ombudsman and the Housing Ombudsman complaints about assessment or management of a local authority’s choice based letting service are matters for the Local Government and Social Care Ombudsman.
After carefully considering all the evidence, in accordance with paragraph 42(k) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
1. The landlord’s decision to place the resident in a particular band under its allocations policy.
The remaining complaint about the landlord’s response to the resident’s reports of anti social behaviour and the associated complaint handling is assessed below.

Background and summary of events

Background

The resident is a secure tenant of the landlord which is a local authority. The resident’s tenancy commenced in July 2013. The property is a 1 bedroom ground floor flat. The landlord has no recorded vulnerabilities for the resident. However, the resident has provided evidence to the landlord and this service to show his vulnerabilities included a history of PTSD, asthma, mental health and other medical conditions. Since the complaint was brought to this service the resident has terminated his tenancy with the landlord and moved to a new address.
The landlord’s anti social behaviour policy says:
1. Anti-social behaviour is taken to refer to patterns of behaviour including:
  1. Violence or threats of violence against people and property.
  2. Intimidation and harassment.
  3. Criminal damage to property.
  4. Noisy and rowdy behaviour.
  5. Aggressive and threatening language and behaviour.
  6. Fouling of public areas.
  7. Using accommodation to sell drugs or for other unlawful purposes.
  8. Hate incidents, dealt with in accordance with the Hate Incident Policy
  9. Other conduct likely to cause harassment, alarm or distress to neighbours including acts which could be regarded as causing nuisance or annoyance.
2. That on receipt of a complaint of antisocial behaviour an investigation will be initiated within 3 working days. This may include liaising with the police or other agencies where appropriate.
3. Officers will seek to complete their investigations within 10 working days, though in some cases this make take significantly longer.
4. If following the investigation, the officer is satisfied that the complaint is justified, a plan of action will be agreed with the complainant. This may involve keeping a diary of future incidents, contacting the police regarding any criminal activity or providing statements.
5. The person responsible for the alleged behaviour will be interviewed subject to the complainant giving their approval. If there is strong supporting evidence a warning as to future conduct may be given.
6. The policy also states that it supports vulnerable people, reducing inequalities, supporting in times of need, preventing from harm and improving quality of life.
The landlord operates a 2 stage complaints policy:
1. Stage 1 complaints are investigated within 10 working days.
2. Stage 2 complaints are responded to within 10 working days but may be extended to 20 working days.
3. If the complaint is not resolved through the landlord’s 2 stage complaints procedure the resident can contact a designated person who can help find a solution. The designated person can be an MP, local councillor or the complaint can be referred to the tenant complaints panel.

Summary of events

On 17 June 2022 the landlord’s records showed an email from a member of parliament (MP) to the landlord. It said that the MP had been contacted by its constituent regarding the smell of cannabis from a neighbouring flat. He was concerned about how his attempts to resolve the problem had been dealt with so far. Both properties were rented through the landlord. It said:
1. A new neighbour had moved into the flat above approximately 3 weeks prior. Since then, the resident had explained that at night he would often have the strong smell of cannabis in his flat, which was originating from the flat above. He had described the impact this was having on his breathing and said this was causing him chest pain. The MP said it understood that the resident had started using inhalers again because of this.
2. The resident said he had discussed the issue with his new neighbour’s mother, who he went to school with, and who lived nearby, rather than reporting this to the landlord. The resident said he thought this was the right thing to do in any neighbour dispute, to try and resolve it amicably between themselves before contacting the landlord.
3. However, as a result of discussing the issue with the neighbour’s mother, the resident had described how he had received a call from the landlord’s officer, with the neighbour’s mother alleging that he had harassed her, which he disputed. The MP understood that when the resident had spoken with the housing officer, she had warned him not to speak with the neighbour or his mother again, which he said he had no intention of doing.
4. That the resident said that he felt he was being mistreated by the landlord on this occasion. This was due to noise complaints of dogs barking that he had raised with the landlord before, with regard to the previous neighbour.
5. The resident did not wish to raise a complaint specifically about his new neighbour, as he did not know if it was his neighbour or someone that was visiting who smoked cannabis. He also did not want to cause further repercussions.
6. The MP said it would be grateful if the landlord could look into the resident’s concerns.
On 7 July 2022 the landlord responded to the MP:
1. The landlord said that it took reports of antisocial behaviour seriously and would undertake an investigation. This would normally mean that a housing officer would make contact with the neighbour with regard to the alleged issues raised and remind them of their tenancy obligations. This included the neighbour being responsible for both themselves and their visitors. If the resident wished the landlord to investigate this matter formally, he would need to contact the housing officer.
2. It reassured the MP that the resident’s confidentiality would be respected and that the landlord would not mention the resident’s name. However, it was not unusual for individuals to assume who may have made contact regarding a complaint.
3. If the problem persisted then it would ask the resident to complete diary sheets. These would be used and referred to if legal action was required.
4. It assured the MP that the fact that housing officers had previously been involved with the resident, with regard to complaints made by him, this had no bearing on the current situation. Contact would only be made with the resident if he raised issues about a neighbour or the neighbour did the same about him.
5. The landlord was concerned that he had suggested to the MP that he was being mistreated. The landlord had contacted the resident on 13 June 2022 as it had received allegations that the resident was harassing and intimidating his neighbour. The purpose of the contact was to discuss the matter with him.
6. All complaints were dealt with at the time that they were made because, as mentioned previously, it had a duty to investigate all complaints of anti-social behaviour.
On 4 August 2022 the landlord wrote again to the MP. It said:
1. It confirmed that the area housing team had received a letter from the resident’s GP, which suggested that the resident had had difficulty with controlling his asthma, and that this was as a result of his neighbour continually smoking cannabis.
2. Since the last contact, the housing officer had attempted to speak with the resident regarding the concerns that he has raised about the alleged smoking from his neighbour. The officer had attempted to make contact on several occasions, but to date the resident had not returned any calls or responded to the message left for him.
3. The officer had also spoken with the neighbour, alleged to be the cause of the problem, and he had denied the allegations. The neighbour had also advised that he did not smoke. Therefore, the landlord currently had no supporting evidence to take any further action.
4. If the resident could provide further information, it would review the matter again.
On 11 August 2022 the resident raised a complaint with the landlord. He said that he wanted to complain about a telephone call from the head of housing made 7 weeks previously. The email sent did not specify what the complaint was about.
On 16 August 2022 the MP wrote again to the landlord. It said that the resident had provided diary sheets for 2 weeks. He had reiterated the impact of the constant smell of cannabis on his breathing. He hoped that the supporting information would allow the landlord to review the matter again and take further action. The resident provided diary sheets to the landlord from 22 August 2022 to 5 September 2022. All entries on the diary sheets said, “smell of weed from upstairs”.
On 24 August 2022 the landlord wrote again to the MP. It said:
1. It understood that the resident was requesting to move to alternative ground floor accommodation. It confirmed that it had received a letter from the resident’s GP and the contents had been noted and acted upon.
2. The GP suggested that the resident could have difficulty with controlling his asthma, and that this was because of the neighbour continually smoking cannabis. In previous correspondence it explained that it had contacted his neighbour, and not only did they categorically deny the allegation, but also confirmed that they did not smoke.
3. It confirmed that diary sheets had been received, and that these were to be reviewed with the assistance of colleagues in the anti-social behaviour team, and if necessary, the local neighbourhood policing team to determine whether or not there was a breach of tenancy.
4. Therefore, the landlord would address any issues of anti-social behaviour, and this would not have any impact on the banding awarded to the resident.
5. It would continue to do whatever it could to resolve any breach of tenancy if it determined there was one, however it was unable to insist that neighbours exist in harmony with each other.
On 25 August 2022 the MP wrote to the landlord. It said that it had shared the landlord’s response with the resident. He had been back in touch to reiterate his ongoing concerns about the matter. The MP did not believe that there was anything further that the landlord could add but said that the resident had asked for the MP to relay his dissatisfaction with the response. The resident had repeated the ongoing impact on his health.
The landlord responded to the stage 1 complaint on 30 August 2022. It said:
1. It had investigated the matter and had discussed the resident’s complaint with him.
2. It apologised if the resident felt that the matter had not been dealt with to his satisfaction. It expected all of its officers to be responsive and communicate in an effective way.
3. It was aware that during the conversation the resident had advised that he wanted to move as:
  1. The smoking from the neighbour was affecting his health.
  2. He wanted to be closer to his father who had health concerns.
4. The landlord explained that it was aware of the concerns raised about the neighbour and that it had investigated the matter previously. The neighbour had denied the allegations of smoking. The resident had advised that the issue was ongoing and that he had completed diary sheets and would return these. The landlord confirmed that it would review the diary sheets and then take the appropriate action. The landlord stressed that it took all reports of anti social behaviour seriously and would investigate all complaints thoroughly.
5. It also discussed the resident’s request to move to be closer to his father so that he could assist him. The landlord asked if the resident had considered moving via mutual exchange. The resident said he had considered this but no one was willing to exchange with him.
6. The landlord stressed that it wanted to find a resolution to the matter including addressing the reports of anti social behaviour and looking to see whether there was assistance it could provide to be nearer his father. It noted that he was willing to accept a first floor flat and said it would update its records.
7. It asked the resident to contact it again if he wished to discuss the matters further.
The resident emailed the landlord on 7 September 2022 regarding his complaint requesting to escalate it to stage 2 of the landlord’s complaint process.
The landlord responded at stage 2 on 21 September 2022:
1. It confirmed that it had reinvestigated the issues raised by the resident and the additional comments he had made.
2. It said that it had discussed the option of seeking a mutual exchange and this option remained open to the resident. It said it could arrange for a housing management officer to visit and explain this in more detail and go through the options.
3. In relation to the complaint that was made about the resident’s neighbour, and that the neighbour was smoking in the communal area, the landlord confirmed that it had recently reviewed the matter including the nuisance diary sheets that the resident had submitted.
4. The landlord had approached the neighbour regarding the allegations, and the neighbour had denied smoking in the communal area. It was unable to substantiate the resident’s allegations which made it difficult for the landlord to take any further action regarding the matter.
5. It re-assured the resident that it was dealing with the issues and concerns that he had raised and taking them seriously.
6. It trusted that this answered the resident’s complaint and said that if he remained dissatisfied, he could escalate his complaint to the resident’s panel or this Service.
On 21 September 2022 the resident responded to the landlord. He said that he would be happy to attend the council offices to see what his options were for moving. He felt that the council had backtracked and said it had recommended the move because it was not going to resolve the upstairs neighbour issues with smoking weed. This was affecting his PTSD.
On 21 September 2022 the resident contacted this Service. He said that he had received a final response from the landlord which did not address his neighbours smoking cannabis in the flat above. He said he could not afford to move to private accommodation and he had a GP letter to say his neighbour smoking cannabis was making his chest bad.
On 22 September 2022 the resident wrote to the landlord to say that he wanted his complaint to be handled by the tenant panel. He wanted the meeting to be arranged privately. He said he had severe fibromyalgia, spondylosis, PTSD and asthma which he was seeing a specialist for on 7 October 2022. He said his upstairs neighbour was still smoking cannabis in his living room which was affecting his asthma and he was still completing diary sheets.
On 30 October 2022 the resident wrote to the Service. He said that he had been unwell with his chest for a second time in 4 months and this was now affecting his mental health and PTSD.
On 1 November 2022 the landlord’s records showed that the complaint had been sent to the tenant panel. The chair had stated that the panel could not look at it as this Service was involved. The landlord said that this had been checked and there was nothing currently with this Service in relation to the resident. This had been relayed to the chair and the landlord was waiting for a response.
On 28 November 2022 the resident terminated his tenancy with the landlord. On 8 December 2022 the landlord confirmed that the resident’s tenancy would terminate on 26 December 2022. On 6 January 2023 the resident wrote to this Service to advise that he had been rehoused in a newbuild flat. He remained dissatisfied with the landlord and how things had turned out. He said It had cost him a lot of money to move with no help with the costs and he had to borrow money from his father to move due to the noise and cannabis smoking.
On 30 June 2023 the resident confirmed that he wanted this Service to investigate his complaint. He said he felt that he was forced to leave due to the neighbour’s cannabis smoking and the landlord doing nothing about this.
The landlord’s response of 21 September 2022 was its final response to the resident’s complaint, confirming that his complaint had exhausted the landlord’s internal complaints process.

Assessment and findings

In reaching a decision about the resident’s complaint we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case.

The landlord’s response to the resident’s reports of antisocial behaviour

It is evident that the situation caused distress to the resident. He advised this service that he felt forced to move due to the cannabis smells and impact on his health. This Service’s role is not to decide if the actions of the neighbour amounted to anti social behaviour, but rather, whether the landlord dealt with the resident’s reports about this appropriately and reasonably.
There was no evidence provided to suggest that the resident had previously made reports to the landlord about cannabis smells prior to the new neighbour moving in, three weeks earlier, suggesting that something had changed.
The resident initially tried to resolve the issue with the neighbour himself by speaking with his neighbour’s mother, however this did not provide the desired outcome. Following the MP’s contact with the landlord, on the resident’s behalf on 17 June 2022, the landlord responded on 7 July 2022 and said it would conduct an investigation.
On 4 August 2022 the landlord said it had tried several times to speak with the resident but that he had not responded to its messages. The landlord said it had spoken with the neighbour who had denied the allegations and also said that he did not smoke. Whilst it was reasonable for the landlord to discuss the allegations with the neighbour it would have been good practice to have discussed this with the resident prior to doing so as outlined in its policy.
The landlord confirmed that diary sheets had been received and that these would be reviewed with the assistance of its antisocial behaviour team and if necessary, the local policing team. The resident provided diary sheets between 22 August 2022 and 5 September 2022 and continued to keep a diary record. All entries on the diary sheets said, “smell of weed from upstairs neighbour and his friends”. No evidence was provided to this Service to suggest that the landlord had contacted the local policing team or investigated further.
It would have been appropriate for the landlord to advise the resident to report any instances of drug use to the police. Drug use is a criminal offence and the police are best placed to investigate reports of criminal activity. There was no evidence to suggest that the landlord had advised the resident as such.
The landlord said that in relation to the complaint that was made about the resident’s neighbour, and smoking in the communal area, that it had reviewed the matter, including the completed diary sheets. The landlord had approached the neighbour again regarding the allegations, and the neighbour had denied smoking in the communal area. The landlord said it was unable to substantiate the resident’s allegations which made it difficult for the landlord to take any further action regarding the matter. However, there was no evidence to suggest:
1. That the landlord’s officers had attempted to visit the resident in his home to try and verify the smells.
2. That the landlord has visited the neighbour in his home, carried out a tenancy check or property inspection to try and verify any smells of cannabis.
3. Attempted to speak to other neighbours who may have been experiencing similar issues.
4. That the landlord had contacted the resident to explain why the diary sheets may not have been sufficient in order for it to take action.
The landlord’s records showed no vulnerabilities for the resident. However, the resident had repeatedly told the landlord that his asthma was affected by the fumes from the cannabis and how this was impacting his health. He also told the landlord that he had PTSD and other health conditions which were being exacerbated by the situation. There was no evidence to suggest that the landlord had considered the resident’s vulnerabilities, health concerns or any detriment to the resident.
The landlord’s investigation appears to have been limited and unsuited to the matter complained of. Speaking to the resident, neighbour and requesting diary sheets was inadequate unless the neighbour was prepared to admit to the allegations. It did not go far enough to fully investigate the matter.
The resident lives in a semi-detached house which consists of a ground floor flat and a first floor flat. It would have been good practice for the landlord to conduct a home visit that would have enabled it to better identify the source of the smell and either implicate or exonerate the neighbour. The landlord could also have engaged a professional witness to attend the property and make observations that would better enable it to resolve the matter.
The landlord also did not consider early intervention tools such offering mediation between the resident and his neighbour.
In summary, whilst the landlord’s decision not to take formal action against the neighbour was reasonable there were further steps the landlord could have taken when responding to the resident’s reports. There was a lack of advice given by the landlord on referring suspected criminal activity to the police. There is also no evidence that the landlord considered the resident’s vulnerabilities or detriment to him during the investigation. This amounts to maladministration.

Complaint handling

The landlord responded at stage 1 of its complaints process on 30 August 2022. This was 13 working days after the resident’s complaint of 11 August 2022 and 3 working days outside of its complaints process.
On 22 September 2022 the resident asked the landlord to take his complaint to the tenant panel. The landlord’s records of 1 November 2022 said that the chair had stated it could not look at the case as this Service was involved. The record said that this had been checked and that there was nothing with this Service in relation to the resident at the time. This had been relayed to the chair of the panel and the landlord was waiting for a response. There was no evidence provided to demonstrate whether the panel had accepted the resident’s request and reviewed the complaint or whether the resident had been advised that the panel could not look into the matter.
It would have been good practice for the landlord to have written to the resident to confirm the outcome of his request for his complaint to go to the tenant panel or explain the reasons why his complaint was unable to be heard by the panel.
The involvement of this Service is no reason for the landlord not to exhaust its complaints procedure. This is something that this Service encourages as well as mediation between the landlord and the resident.
The landlord’s complaint response was an explanation of the action it had taken that had already failed to resolve the matter and offered no effective advice or resolution to the problem.
There was therefore maladministration in the landlord’s handling of the complaint in line with its policy.

Determination (decision)

In accordance with Paragraph 42(k) of the Housing Ombudsman Scheme, the landlord’s decision to place the resident in a particular band of its allocations policy, is outside of the Ombudsman’s jurisdiction.
In accordance with paragraph 52 of the Scheme, there was maladministration in respect of the landlord’s handling of the resident’s reports of antisocial behaviour.
In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of the resident’s complaint.

Reasons

Whilst the landlord investigated the resident’s reports of antisocial behaviour by approaching the neighbour who denied the allegations, it did not go far enough to investigate or find a resolution to the matter. It failed to provide any further advice or direct the resident to the police. It failed to recognise the resident’s vulnerabilities and health conditions and the impact this was having on him.
The landlord failed to feed back to the resident on the reasons why his complaint was unable to progress to the tenant panel and there was a minor delay in its stage 1 response.

Orders and recommendations

Orders

Within 4 weeks of this determination the landlord is ordered to pay compensation in the amount of £500 to the resident.
1. £200 for distress and inconvenience for failing to recognise the resident’s vulnerabilities, health conditions and the impact the situation had on him.
2. £200 for failing to fully investigate, provide explanations, advice and guidance to the resident in relation to his reports of anti social behaviour.
3. £100 for failure in its complaint handling.
The landlord should review its antisocial behaviour policy to reflect different ways to deal with different matters in recognition that the approach to noise nuisance will not suffice in response to smells of drugs and also to include home visits and professional witnesses. This should also include how it manages vulnerable residents and health conditions in relation to anti social behaviour.
The landlord should, within 4 weeks of this determination confirm to this Service that the orders above have been complied with.