Midland Heart Limited (202204167)

REPORT

COMPLAINT 202204167

Midland Heart Limited

28 April 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

This complaint is about the way the landlord handled the resident’s reports of drug- and tobacco-related antisocial behaviour and harassment.

Background

The resident is an assured tenant of the landlord. The tenancy started on 23 December 2020 and the resident moved into the property on 31 January 2021. The property is a one-bed flat. The landlord is aware that the resident is vulnerable and lives with a number of physical and mental health issues.

Policies and Procedures

The landlord’s antisocial behaviour policy lists drug use as an example of antisocial behaviour. The policy says that when antisocial behaviour is reported, the landlord will:
1. carry out an initial risk assessment to assess the priority of the case;
2. initially provide advice and assistance to help resolve the behaviour without direct intervention from the landlord;
3. gather evidence to ensure appropriate action is taken;
4. take enforcement action where early intervention steps such as advisory letters, formal warnings, mediation or restorative justice practices are not successful or appropriate.
The policy says the landlord will close an antisocial behaviour case when the issues have been resolved, when all available action has been taken, when it cannot take any further action without the complainant providing further evidence, or when no evidence exists to prove the incidents occurred.

Summary of events

The resident says she moved into the property on 31 January 2021. On 17 March 2021, the resident reported the smell of tobacco and marijuana in the communal areas of the building and in her flat to the landlord. She said it was a constant disturbance throughout February 2021. She said she had approached the neighbour in question who told her he smoked for pain management.
On 24 March 2021, the landlord discussed the report with the resident. She said there was a smell of marijuana from her neighbour’s flat, though she had not smelled it since her initial report. She said she had reported it to Crimestoppers who told her to report it to the landlord, and she had not reported it to the police. She said the scheme manager at the building had said they could not smell the marijuana. The landlord explained it could not take any further action without evidence. It agreed an action plan with the resident and sent diary sheets for the resident to complete and return by 8 April 2021.
On 1 April 2021, the landlord called the resident and asked her to return the diary sheets by 12 April 2021 rather than 8 April 2021, as the case handler was on leave. The resident confirmed there had been no changes and she would report any issues to the police as and when they happened.
On 11 April 2021, the resident emailed the landlord to set out a detailed background to the issue. She said the police told her they would send someone within five working days but they had not done so.
On 14 April 2021, the landlord called the resident. The resident told the landlord that the smell of cannabis was still filtering into her flat. She said she had completed the diary sheets, which were all reports of the smell of cannabis from a specific flat. The landlord referred the resident to her GP regarding her related health concerns, and asked her to send it the diary sheets. It told the resident it would send an advisory letter to her neighbour. The landlord sent the neighbour an advisory letter that day.
The resident said the landlord sent her a letter in June 2021 which confirmed it was closing the case.
The landlord said that on 11 October 2021, the resident requested help with the investigation into the smell of cannabis in her flat. On 13 October 2021, the landlord wrote to the resident to arrange a home visit.
On 18, 21 and 25 October 2021, the landlord’s mobile caretaker carried out random patrols of the building. There were two separate patrols on 21 October 2021. The reports state that no smell of cannabis identified on any of the patrols.
On 28 October 2021, the landlord visited the resident at home. The landlord’s notes of the visit say:
1. It explained it was aware the resident was reporting the smell of cannabis, but there was not enough evidence to show it was from the neighbour the resident suspected.
2. It told the resident that neither it nor the patrol team had witnessed the reported smell, and only the police can confirm what the substance is, if there is one.
3. It asked the resident if she would consider a restorative justice process with the neighbour. The resident declined. She said she had previously spoken to the neighbour about the smell and believed he was too clever to admit what he was doing.
4. It explained that the only way it could take further action would be if the landlord or mobile caretaker could identify the smell as coming from the neighbour’s flat. It said it could only do so if it knew specific days or times the neighbour used cannabis.
On 28 October 2021, the landlord emailed the resident to summarise what had been discussed during the home visit. It explained the difficulty in proving who was responsible for the cannabis smell without supporting evidence from the police and provided an up to date action plan.
The mobile caretaker team carried out a random patrol on 31 October 2021. They spoke to the resident who said there was sometimes a smell of cannabis in her toilet and bathroom, but always at different times. The patrol team went into the resident’s flat to investigate. Their report says they did not notice any smell of cannabis, but they did notice a chemical smell.
On 1 November 2021,the resident reported the smell of cannabis to the mobile caretaker. The patrol team attended the resident’s property. She invited them in and told them that the smell of cannabis was in her bathroom. The patrol team’s report says they could not smell any drug-related smells in the resident’s bathroom.
On 3 November 2021, the patrol team carried out a random patrol at the property. Their records say there were no signs of cannabis or any other drugs.
On 4 November 2021, the resident reported the smell of cannabis to the mobile caretaker. The patrol team arrived and spoke to the resident. The resident invited the patrol team into her home to investigate. The patrol team investigated and reported that they could not smell any kind of smoke. The resident told them that the smell had been intense but had gone by the time they arrived. The patrol team carried out a second patrol on that day and found no signs of cannabis or other drugs.
On 7 November 2021, the resident reported the smell of cannabis to the mobile caretaker. The patrol team arrived and investigated. The report says they could smell cannabis smoke in the bathroom on that occasion. They then visited the neighbour the resident believed was the source of the smoke. The records show they found no smell from any cannabis use in that neighbour’s flat. They spoke to another resident in an adjacent flat who told them that neighbour does not smoke. They tried to visit the flat above the resident’s flat but nobody answered the door. The resident reported the smell again a few hours later. The patrol team attended and could smell cannabis in the toilet area, but could not tell which flat it was coming from. They advised the resident to contact them every time she smelled cannabis.
On 8 November 2021, the mobile caretaker carried out another random patrol. The patrol team found no signs of or smells from any drug-related activity.
On 11 November 2021, the resident called the landlord to discuss the case. The landlord said the patrol team had only witnessed a cannabis smell on one occasion and their investigation showed the cannabis smell was not coming from the neighbour the resident believed it was. The landlord told the resident that there were only limited steps it could take without proof of the source of the cannabis smell. It agreed it would send new passwords out so the resident could continue reporting any smell of cannabis to the mobile caretaker.
From 11-21 November 2021, the mobile caretaker carried out nine patrols of the building. Eight were random patrols during which the patrol team found no evidence of cannabis use. One patrol on 15 November 2021 was in response to a report from the resident. In that instance, the patrol team reported that they could smell cannabis lingering in the air, but could not smell it on any other floors. The patrol team recorded that there was a ‘slight’ smell of cannabis in the resident’s bathroom, which faded straight away. They recorded that the resident said she could still smell the cannabis, but the patrol team could no longer smell it at that stage.
On 24 November 2021, the resident emailed the landlord. She said the neighbour was using another type of drug, was clever with the timing of his drug use, and was aiming his drug and tobacco use at the resident.
On 26 November 2021, the landlord spoke to the resident. It asked if the repair for a hole near the toilet where the resident believed some of the cannabis smell was coming from had been completed. The resident confirmed it had. The landlord then explained that the mobile caretaker had been to the downstairs neighbour’s flat and found no evidence of drug use there. The resident told the landlord she was the victim and was being harassed by the neighbour. The landlord explained that without evidence it was limited in the action it could take. The landlord’s notes say the resident indicated she did not want to move from her property unless the landlord refunded around £2,000 she had spent on it.
On 27 November 2021, the mobile caretaker carried out a random patrol and found no evidence of drug use.
On 28 November 2021, the resident emailed the landlord. She said the landlord was willing to accept someone was smoking marijuana but unwilling to resolve the issue. She said the patrol team identified the smell of cannabis on 31 October 2021 and on 6, 7 and 15 November 2021. She said either it was changing the results of the reports or the issue was not seen as important enough to log correctly. She asked that the patrol team do not go to her neighbour’s flat unannounced in case it caused issues for her. She requested six months of access to the patrol team as she felt their presence made a difference.
On 29 November 2021 and 2 December 2021, the mobile caretaker carried out patrols of the building. They found no evidence of any smells of cannabis or drug-related activities.
On 3 December 2021, the landlord emailed the resident. It said the patrol logs showed a cannabis smell on two occasions and a chemical smell on another. It said it had no records of a patrol on 6 November 2021. The landlord carried out a review of the case on the same day and renewed the resident’s access to the mobile caretaker for a further four weeks.
The mobile caretaker carried out ten patrols between 4 and 14 December 2021. On nine occasions, there were no signs or smells of either cannabis or other drug-related activities. On 11 December 2021, the patrol identified a strong smell of cannabis coming from one of the flats in the building and investigated the property in question. They reminded the occupier that smoking cannabis was a breach of their tenancy agreement. It was not the neighbour the resident believes was responsible for the cannabis smell in her property.
On 15 December 2021, the resident emailed the landlord and advised there had been no issues with a marijuana smell for the prior two weeks. She asked for a form to record the details of the patrols herself. The landlord suggested that the resident keep her own record, photograph it, and send it to the landlord on a fortnightly basis.
The mobile caretaker carried out 18 random patrols between 16 December 2021 and 3 January 2022. The patrol team said there was no smell or sign of cannabis or other drug-related activity during any of those patrols.
On 3 January 2022, the resident emailed the landlord. She said the neighbour was harassing her and outsmarting the landlord. She said she had reported the smell of marijuana at 7pm but no patrol came as the password had expired. She said it did not matter if the smell was witnessed twice or 50 times, it proved the smell was there.
On 4 January 2022, the landlord emailed the resident a new password for the mobile caretaker. It told her it had asked for a senior manager to review the case to try and resolve the issue.
On 5 and 6 January 2022, the mobile caretaker carried out patrols. The patrol team recorded that there was no drug smell and nothing else was witnessed.
On 7 January 2022, the resident emailed the landlord. She said she appreciated the patrols but the problem was specific to her flat rather than in the communal areas. She said she had completed diaries, had meetings with the landlord and reported the smell to the mobile caretaker, but the issue was ongoing. She said the culprit was caught recently but continued breaching their tenancy agreement, and she should not have to keep living that way.
On 8 and 9 January 2022, the mobile caretaker carried out foot patrols. There was no smell of cannabis recorded on 8 January 2022. On 9 January 2022, they responded to a call from the resident and recorded a “slight” smell of cannabis in the bathroom.
On 10 January 2022, the resident emailed the landlord to report that drugs or tobacco were being pumped into her flat through the bathroom every evening.
On 11 January 2022, the mobile caretaker carried out two patrols. The first was a random patrol in which the patrol team identified no signs of cannabis use. The second was in response to the resident’s report of the smell of cannabis. The patrol team arrived at the building a few minutes after the report and spoke to the resident. The resident invited the patrol team in to smell the cannabis she had reported. The patrol team went into the bathroom and reported there was no smell of cannabis. Their record says the resident told them the culprit had now stopped smoking cannabis, and this was most likely when they saw the patrol team arrive.
The mobile caretaker carried out a random patrol on 12 January 2022 and reported there was no smell of cannabis or signs of any drug-related activity. On 13 January 2022, the resident reported the smell of cannabis. The patrol team arrived and the resident invited them in to witness the cannabis smell. They recorded that they had detected no smell of cannabis.
On 14 January 2022, the landlord and resident discussed the case. The resident said the problems were ongoing, and that she had proved the issue but had no resolution from the landlord. The landlord said it wanted to arrange a home visit to discuss the issue as there had been a large number of patrols but only eight reports from the resident. It said it had issued a warning to the neighbour found smoking cannabis recently, and told the resident it was not the neighbour she believed was the cause of the issue. The resident replied the same day to tell the landlord the smell of cannabis would have faded by the time the patrol team arrived. She also said she had been told the culprit was caught in December and it was who she believed it was, but that no action was taken.
On 15 January 2022, the mobile caretaker carried out two random patrols. The patrol team reported there was no smell of cannabis on either occasion.
On 17 January 2022, the resident reported the smell of cannabis. The patrol team arrived and investigated the flat the resident suspected, but found no smell of cannabis there. The resident invited the patrol team in to witness the cannabis smell in her flat. The patrol team recorded that they detected no smell of cannabis, and the resident said the neighbour was using a wet towel on their doorframe to avoid spreading the smell.
On 18 January 2022, the mobile caretaker carried out a random patrol and monitored the flat the resident suspected was behind the cannabis smell. The patrol recorded there was no evidence of a cannabis smell from that flat.
On 19 January 2022, the landlord carried out a home visit at the resident’s property. It also reviewed the case. It wrote to the resident and reiterated the difficulty of taking action without direct evidence. It encouraged the resident to report every instance of the cannabis smell to the mobile caretaker as she had indicated there were many times she had not reported it. The landlord then provided an up to date action plan. The resident told the landlord who it was she believed was supplying drugs in the property, and gave the landlord the person’s license plate number. The landlord passed that information on to the police. The mobile caretaker carried out a random patrol that evening. The patrol team monitored the neighbour’s flat and recorded that there was no smell of cannabis. They spoke to the resident who told them she had smelled it from 8pm that evening but it was not strong enough for her to call the patrol team. The patrol team encouraged the resident to always report the smell of cannabis.
On 21 January 2022, the landlord emailed the resident. It said if it could discern a pattern to the cannabis smell, it could arrange for professional witnessing. It encouraged the resident to report every instance of the cannabis smell to the mobile caretaker to help identify a pattern, as professional witnessing could only be carried out for a limited period.
On 21 and 23 January 2022, the mobile caretaker carried out two random patrols. On each occasion they recorded there was no smell of cannabis or other drug-related activity in the building.
On 23 January 2022, the resident emailed the landlord. She said there was no pattern as the neighbour did not smoke every day, and it was always at different times. She said she had been putting up with the issues since February 2021, the landlord had closed the previous case in June 2021 despite ongoing issues, and it was avoiding taking action. She asked the landlord to record a complaint.
On 25 January 2022, the mobile caretaker carried out a random patrol. It said there was no smell of cannabis in the building.
On 28 January 2022, the landlord carried out a review of the case and decided to allow a further two weeks’ access to the patrol team. The resident reported the smell of cannabis at 7pm that evening. The patrol attended shortly after the report and said they could not smell any cannabis in the resident’s property.
On 1 February 2022, the landlord reviewed the case and emailed the resident. It said:
1. When the resident reported the issue at the start of 2021, there were two full investigations which found no evidence to support the resident’s allegations.
2. It had covered a hole in the bathroom as the resident thought the cannabis smell was coming from that area.
3. It carried out a third investigation which identified a slight smell of cannabis in the resident’s flat on three occasions in November 2021 and once in January 2022. It identified no smell of cannabis anywhere else in the building.
4. A random patrol identified the smell of cannabis in a communal area and in a flat (not the flat the resident was reporting). Action was taken and no further issues were identified at that flat.
5. It was unable to take any enforcement action until it could identify who was causing the cannabis smell.
6. The resident had asked for a member of the landlord’s staff to be on site 24 hours a day, 7 days a week to witness the smell, but this is not a service the landlord provided as part of sheltered accommodation. The costs involved would not be reasonable or proportionate.
7. Detailed records of times and dates were needed to assess whether professional witnessing was needed. It reminded the resident to contact the patrol team every time she smelled drugs.
On 3 February 2022, the mobile caretaker carried out a random patrol of the building. The patrol team recorded that there was no cannabis smell in the block.
On 8 February 2022, the resident emailed the landlord. She asked for the patrols to increase as the smell was ongoing. She said the neighbour was using small puffs to push the smell of cannabis into her flat to avoid getting caught.
On 10 February 2022, the resident emailed the landlord again. She said she had chosen not to report the smell of cannabis to the patrol team as it was small amounts so the smell would be gone before they arrived.
On 11 February 2022, the landlord told the resident it would be closing the case regarding the alleged perpetrator’s use of cannabis. It said:
1. During the home visit on 19 January 2022, the resident reported smelling drugs four to five times a week and agreed to contact the out of hours patrol team every time she smelled drugs. Since that meeting, she had not reported any incidents to the patrol team.
2. When the resident first complained of the smell of cannabis in early 2021, the landlord carried out two investigations. No evidence was found which supported the resident’s allegations of a cannabis smell being pushed into her property. The landlord had also covered the hole near the toilet as the resident originally said that was where the smell was coming from.
3. On 11 October 2021, the resident requested “external help” which resulted in a third investigation being carried out. A “slight” smell of cannabis was identified on four occasions across 60 visits, but no smell of cannabis was found anywhere else in the building.
4. The landlord visited the neighbour in question and inspected their property for evidence of the smell or use of drugs, or any holes in the wall. No evidence was found.
5. It was unable to take any enforcement action until it could identify who was causing the smell.
6. For the landlord to consider further investigation or enforcement action, it needed further evidence in the form of reports from third party witnesses, complaints from other residents or direct evidence of someone else using drugs. In the absence of further evidence it had closed the case.
On 14 February 2022, the landlord issued its stage one response to the complaint. It said:
1. It had spoken to three staff members involved in the case.
2. The resident had mentioned the smell of tobacco at her sign-up appointment on 23 December 2020 and again in January 2021. In March 2021, the resident reported the smell of cannabis and told the landlord that a neighbour had admitted to smoking for pain relief, but said he would stop. Random checks were carried out and no evidence of cannabis use by that neighbour had been found.
3. The resident told the landlord’s staff that she had since tried to befriend the neighbour, and there were no visible holes in his walls. When the resident reported the smell of cannabis again, the landlord sent a letter out to all residents.
4. When it received further reports of cannabis use it arranged for security patrols in the building. The security patrol logs show a cannabis smell in the resident’s bathroom in November 2021, but it was not found anywhere else in the building. The patrol team attended many other times and did not smell cannabis.
5. The reports show the cannabis smell happened at a range of times and dates.
6. Three investigations were carried out, with over 100 visits. There was a cannabis smell on one occasion in that time, so the case had been closed due to lack of evidence.
On 18 February 2022, the resident asked the landlord to escalate the complaint as the issue was not resolved.
On 14 March 2022, the landlord issued its stage two response. It said:
1. The resident had complained about the smell of drugs, and said a neighbour was blowing drugs and tobacco smoke through her wall.
2. The landlord’s staff went to the resident’s flat on many occasions, interviewed regular cleaners, and had spoken to other residents. It had also instructed the patrol team to attend so it could decide what action could be taken.
3. It had asked the resident to report each and every time she smelled drugs, but she had not done so.
4. A full investigation had been carried out on three separate occasions. These did not produce enough evidence to uphold the allegations about the neighbour.
On 30 May 2022, the resident referred her complaint to the Ombudsman as she remained dissatisfied with the landlord’s response.

Assessment and findings

Scope of the investigation

From reviewing the information provided by both parties it is evident that the resident had reported ongoing issues relating to the smell of cannabis in her property since March 2021, shortly after she moved into the property. The Ombudsman also notes the resident’s comments that the issues continued after the landlord’s response to the complaint.
Paragraph 42(a) of the Housing Ombudsman Scheme (the Scheme) says the Ombudsman will not investigate complaints which have not yet exhausted the landlord’s internal complaints process. This means the Ombudsman cannot look into the way the landlord handled any new reports of the smell of cannabis in the property after the landlord issued its complaint response, or how it responded to any further evidence provided by the resident after that date. The way the landlord handled any new reports or evidence after that date, including its decision not to move the resident to another property in the building, is a separate complaint which would need to go through the landlord’s internal complaints process before the Ombudsman could consider it.
Paragraph 42(c) of the Scheme says the Ombudsman will not investigate complaints which were not brought to the attention of the landlord as a formal complaint within a reasonable time frame (usually six months). The resident made her complaint on 23 January 2022. While the Ombudsman appreciates that the resident made complaints about antisocial behaviour before that point, a report of antisocial behaviour is not the same as a complaint about the landlord. The Ombudsman has not seen evidence of a complaint about the landlord – rather than a complaint about antisocial behaviour – being made before 23 January 2022. As such, while the landlord’s previous actions may be referred to in this report for context, the Ombudsman will be focusing its investigation on the landlord’s actions from 11 October 2021, as that is when the landlord’s most recent investigation into the reported antisocial behaviour started.

Reports of antisocial behaviour and harassment

The resident said there had been ongoing issues with the smell of tobacco, cannabis and other drugs in her property from the time she moved in. She believes the smell was coming from a specific neighbour’s flat, and that the neighbour had been using a tool to push the smell from his drug use through the party wall and into her flat. She believes this was intentional, and that the neighbour was harassing her. The landlord said it carried out multiple investigations and that none of those investigations led to evidence which supported the resident’s allegations.
It is not the Ombudsman’s role to decide whether incidents reported by a resident amount to antisocial behaviour or harassment. It is also not the Ombudsman’s role to determine whether the reported behaviour was taking place as alleged. The Ombudsman’s role in these types of complaints is to consider the evidence available to determine whether the landlord acted reasonably in the circumstances of the case.
In its initial investigation, the landlord carried out a risk assessment, asked the resident to complete diary sheets and report cannabis smells to the police, agreed an action plan, and issued an advisory letter to the neighbour. It is common ground that the landlord closed the case in June 2021. The landlord said this was due to a lack of evidence in support of the resident’s allegations.
The resident requested further action regarding the smell of cannabis on 11 October 2021. The landlord responded by arranging a home visit at the resident’s flat to discuss the issue. It also instructed its mobile caretaker to carry out random patrols, and gave the resident a password to use to report any smell of cannabis in the building to the mobile caretaker. As the use of tobacco is not a form of antisocial behaviour under its policy, it was reasonable for the landlord to focus on the use of drugs when investigating the reports.
When visiting the resident at home, the landlord explained that there was no evidence to show the smell of cannabis came from the neighbour the resident suspected. It also explained that there were limits to the action it could take without evidence linking the cannabis use to a specific person. It offered to arrange a restorative justice process for the resident and neighbour, which the resident declined. Since the previous case was closed because of a lack of supporting evidence, it was reasonable for the landlord to try to both gather evidence and manage the resident’s expectations as to the steps it could take. This was also in line with its antisocial behaviour policy.
The landlord has provided the Ombudsman with evidence of 72 patrols of the building taking place between 18 October 2021 and 10 February 2022. Of the 72 patrols, 62 were random and ten were in response to a report from the resident. There was also one occasion when the resident called to report the smell of cannabis but was unable to do so as the password for the patrols had expired over the new year period. Including that occasion, the resident reported the smell of cannabis or other drugs on 11 occasions in just under four months.
Of the 11 occasions the resident reported the smell of cannabis, the patrol team could smell the reported cannabis on four occasions. They could not smell any cannabis on the other occasions. While the password had expired when the resident reported the smell of cannabis on 3 January 2022, a random patrol went ahead that evening. The patrol team identified no smell of cannabis in the building during that patrol.
Of the 62 random patrols, the patrol team said there was no smell of cannabis or other drugs on 60 occasions. They reported a chemical smell from the resident’s bathroom on one occasion, and a strong smell of cannabis in the corridor on one occasion. They were able to trace the cannabis to a specific flat on the latter occasion. The source of the cannabis smell was not the neighbour the resident suspected, and there was no sign of cannabis use in that flat during any subsequent patrols. The patrol team could not identify the source of the smell on any other occasion. However, after inspecting the flat of the neighbour the resident had reported and speaking to other residents in the building on 7 November 2021, the mobile caretaker determined that the neighbour suspected by the resident was not the source of the cannabis smell identified in her bathroom.
The landlord used the tools available to it to try to gather evidence. Both the landlord and the mobile caretaker encouraged the resident to report every smell of cannabis in her flat so that the patrol team could attend and gather more evidence. It managed expectations by explaining to the resident why the evidence provided was not sufficient for it to take action, and what it needed evidence of to allow it to take action. It provided the resident with action plans to try to resolve the issue, provided evidence to the police when appropriate, and reviewed the case on multiple occasions. It considered the resident’s request for a staff member to be present around the clock to witness the smell, but assessed the cost and concluded the cost would be prohibitive. It explained that to the resident. All of these were reasonable steps and in line with the landlord’s antisocial behaviour policy.
When the landlord assessed the available evidence, it concluded that there was insufficient evidence of the culprit to allow it to take any enforcement action. It explained this to the resident and appropriately closed the case.
When closing the case, the landlord said the resident had not reported any cannabis smell to the patrol team since the home visit on 19 January 2022, and that no smell of cannabis had been identified anywhere else in the building. This was not correct. As set out above, the patrol logs show that a cannabis smell was identified at another flat on 11 December 2021, and the resident reported a smell of cannabis on 28 January 2022. However, the Ombudsman does not consider this would have materially changed the outcome had those occasions been taken into account, as neither of those patrols led to any evidence against the neighbour the resident reported, and there was no evidence of cannabis use by the resident of the other flat after 11 December 2021.
The Ombudsman appreciates how strongly the resident feels that the neighbour in question was responsible for the cannabis smell, and does not dispute that there may well have been a regular smell of cannabis which was causing her distress. However, the landlord can only take action based on the evidence available to it.
The evidence available to the landlord was that the patrol team witnessed a smell of cannabis in the building on four occasions and a chemical smell in the resident’s bathroom on one occasion. This was over a period of just under four months. On one occasion, the smell could be linked back to the occupier of a specific flat, which was not the flat the resident had reported. The landlord had no evidence of any further cannabis use by the occupant of that flat after that patrol, and there was no evidence to link the other occasions to any particular flat. There was also no supporting evidence from the police that the landlord could rely on.
The Ombudsman does not consider that the landlord acted unreasonably in deciding to close the case rather than pursuing enforcement action against the neighbour the resident had reported as the source of the cannabis smell. This is because there was no evidence to base any enforcement action on. The patrol team had also concluded, after investigating that flat, that the neighbour in question was not the source of the cannabis smell. The landlord’s antisocial behaviour policy says it will close a case when it cannot take any further action without the complainant providing further evidence, or when no evidence exists to prove the incidents occurred. As there was no evidence linking an ongoing smell of cannabis to any particular resident in the building, and the resident had declined the use of the restorative justice process, it was reasonable for the landlord to conclude there was no further action available to it without further evidence from the resident. As such, it acted in line with its antisocial behaviour policy when it closed the case on 11 February 2022.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there has been no maladministration by the landlord with regard to its handling of the resident’s reports of antisocial behaviour and harassment.

Reasons

The landlord investigated the resident’s reports in line with its antisocial behaviour policy. It took reasonable steps to gather evidence, and attempted to manage the resident’s expectations regarding the steps it could or could not take. When it concluded there was insufficient evidence for it to take enforcement action, it explained this to the resident and closed the case. Based on the evidence available to the landlord, this was reasonable and in line with its antisocial behaviour policy.

Recommendations

It is recommended that the landlord consider whether there are any building features or defects which could be allowing the cannabis smell to permeate the resident’s flat.
If it has not already done so, it is recommended that the landlord update the resident on the outcome of any further reports of antisocial behaviour she made after the stage two response to this complaint.