Orwell Housing Association Limited (202112944)

REPORT

COMPLAINT 202112944

Orwell Housing Association Limited

22 December 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 handling of the resident’s reports of antisocial behaviour (ASB).
2. The landlord’s handling of the resident’s complaint.

Background

The resident is an assured tenant. He lives in a second floor flat and shares a communal landing with one other resident. The resident has autism and attention deficit hyperactivity disorder (ADHD).
The landlord’s ASB policy says it will investigate all forms of ASB and take appropriate action to resolve identified problems. Drug use is included in its definition of ASB and residents are told to report such issues to the police. The policy also says the landlord will:
1. Give clear guidance and advice to complainants on what is deemed ASB, manage expectations and be honest about the likely outcome of a case.
2. Ensure complainants and alleged perpetrators are treated fairly.
3. Remain impartial throughout the investigation and act on the evidence provided to decide whether an allegation is a genuine case of ASB.

ASB cases are opened 14 days after initial complaints are made and a risk assessment is undertaken. Cases are assessed as being low, medium or high risk. Complainants are sent diary sheets and advised their case will be reviewed within a 21-day period. Perpetrators are also contacted and issued a first warning letter, where appropriate. If ASB reports continue, complainants are advised on what action will be taken. This is confirmed in writing. Where there is insufficient evidence to take formal action, cases are reviewed every two months until either the ASB is resolved or there is sufficient evidence to take the next step.
The landlord had a 3-stage complaint policy when the resident made his initial complaint. This included a referral to the complaints panel comprising of 2 board members and a resident. The landlord introduced a new complaints policy in September 2020 and adopted this Service’s definition of a complaint. The policy says the landlord will:
1. Respond to stage 1 complaints within 10 calendar days.
2. Respond to stage 2 complaints within 20 calendar days.
3. Give an explanation if it cannot reply by the deadline date and tell the resident when they can expect to receive a response. Residents can ask for their complaint to be escalated if timescales are not met.
The resident told the landlord on a number of occasions that his neighbour was smoking cannabis in their flat and lighting wax melts to mask the smell. He said the smell of cannabis and wax melts seeped out onto the communal landing and the landlord did nothing to resolve the problem. The resident told the landlord the smell caused ‘’sensory overload,’’ affected his sleep and led to emotional distress. He also said the landlord treated him less favourably and he was subject to disability discrimination.
The resident asked the landlord to escalate his complaint on 12 December 2019. He said he raised the complaint several weeks earlier and it had not been logged. The landlord responded the following day and advised the resident that any reported incidents would need to be witnessed before formal action could be considered and that he should contact his housing officer when incidents occurred. Arrangements would then be made for them to visit.
The landlord met the resident on 6 December 2019 to discuss his reports that his neighbour was using cannabis and the undesired effects the smell was having on him. It confirmed it needed evidence of the incidents and told the resident he should contact his housing officer, who would take reasonable steps to visit and witness the smell.
The landlord contacted the resident on 16 December 2019. The resident responded the same day. He said the landlord had done nothing about his complaint about his neighbours. He also said the landlord had not kept him updated at any point during the complaint. The landlord told the resident it would respond to his email the following day and agreed to write to all the residents in the block to advise them it would take legal action against anyone found to be smoking cannabis.
The landlord visited the resident’s neighbour in January 2020. His neighbour admitted her visitors smoked cannabis in the flat and she used candles to mask the smell. The landlord said it would consider serving a notice of seeking possession should further reports be received. The outcome of the visit was confirmed in writing and the resident was updated.
The resident contacted the landlord in January 2020 and February 2020. He said the landlord had not responded to his request to escalate his complaint to stage 3 of the landlord’s complaints policy. The landlord responded on 14 February 2020. It said:
1. A member of staff had previously smelt cannabis in the communal area.
2. It planned to send a letter to all residents in the block asking them to refrain from smoking cannabis, but this did not happen. Instead, a member of staff attempted to identify the source of the smell.
3. It could have dealt with the issue much earlier and did not respond fully to the emails he sent in December 2019.
4. The resident’s complaint was still at stage 2 of the complaints process and it was happy to meet with him to resolve his complaint.
The landlord met with the resident in February 2020 to discuss his reports of cannabis and his complaint about the delays in contacting his neighbour and the level of communication. The resident confirmed on 3 March 2020 that he did not wish to progress his complaint any further. The landlord offered him £50 compensation for the poor level of service provided. This offer was accepted by the resident.
The resident made further reports of cannabis use between April 2020 and August 2020. He also told the police.
The resident contacted the landlord on 14 August 2020 and said it should be taking action against his neighbour. He also said he was unhappy because the landlord had threatened to evict him for swearing. He asked for a different housing officer and said the landlord should have offered him an advocate, rather than just suggest he got one himself.

The landlord responded on 21 August 2020. It said:
1. It had not threatened to evict the resident but would formally write to him if he was abusive towards staff.
2. The resident’s request for a new housing officer was reasonable, but it could not necessarily provide one given the size of the team.
3. It would arrange for someone to talk to the resident about advocacy services that may be able to help.
4. It recognised the resident wanted to make a formal complaint, but it was not appropriate to escalate his complaint to its complaints panel. This was because it was trying to resolve the matter. It also noted it was in the process of reviewing its complaints policy and there may no longer be a complaints panel. His complaint could be referred to a designated person after it had been to a director, which it said was the level his complaint was at.
The resident asked the landlord on 20 September 2020 to confirm what it was doing to resolve the issues he raised. The landlord told the resident on 23 October 2020 that it proposed to “draw a line in the sand’’ regarding the matters he had raised. He was also told to report any further incidents to his housing officer.
The resident’s legal representative contacted the landlord on 12 November 2020. It said the landlord had failed to act on the resident’s complaint and this was causing him distress. It also said it would escalate his original complaint to this Service if the landlord failed to resolve the matter.
The landlord responded on 8 December 2020. It said a member of staff had smelt cannabis but could not confirm where the smell was coming from. It also said:
1. It had advised the resident to report any further issues to his housing officer, who subject to her availability, would visit to witness the occurrence. Unfortunately, she was not able to attend on a few occasions.
2. It visited the resident’s neighbour and she admitted her visitors smoked cannabis and she burnt wax melts to disguise the smell.
3. The burning of wax melts was not a tenancy breach and there was little it could do, other than advise the neighbour of the irritation caused by the smell.
4. It had made adjustments to the neighbour’s letter box to reduce the transfer of odours into the communal landing.
5. It had met with the resident to review his complaint and the matter had been satisfactorily resolved.
6. It had spoken to the resident and his neighbour about a possible move. Neither party wanted to do this.
7. It would continue to investigate reports of cannabis use and take appropriate action.
The resident made further reports of cannabis smells in June and July 2021. The landlord provided the resident with an update on 7 July 2021. It said a member of staff had visited the block on 2 June 2021 and could not detect the smell of cannabis. Further reports of cannabis were made on 7 and 19 July 2021. The landlord confirmed on 27 July 2021 that staff were not available to visit and apologised for this. The landlord did attend on 11 August 2021 following reports and the member of staff noted they could smell cannabis a little bit.
The resident’s legal representative contacted the landlord on 9 August 2021. They said the landlord failed to act on his reports and was treating him less favourably than his neighbour. They also said they submitted a formal complaint on behalf of the resident on 12 November 2020. It received a response on 8 December 2020, but the landlord’s reluctance to investigate the matter meant it had to escalate the complaint to this Service.
The landlord met with the resident and his legal representative on 19 August 2021. The resident said the smell of cannabis and wax melts was making his ‘‘life unbearable.’’ It caused headaches and affected his sleep. He also said no one attended when he reported the smell and staff were rude. He declined the offer to move home. The landlord confirmed that it had listened to the telephone calls and identified some learning in relation to how the call was ended. It said further staff training had been undertaken. It also said it would arrange for the housing officer to contact him once a week.
The housing records show the landlord interviewed 2 members of staff that were in the block at the time the resident reported cannabis smoke in August 2021. One member of staff said they could smell cannabis but did not know where it was coming from.
The landlord spoke to the resident’s neighbour on 14 September 2021. She denied smoking cannabis and said the smell could be coming from outside. She also said she did not feel listened to and believed she was not treated fairly. The resident was provided with an update on 15 September 2021.
The resident’s legal representative contacted the landlord again on 20 October 2021. They said they considered the landlord’s response of 23 October 2020 to be its final response. They also asked the landlord to reopen the resident’s complaint. The landlord shared a copy of a communication plan it had developed for the resident on 1 November 2021. It said regular contact was no longer required and the communication plan provided clear parameters and was necessary as staff found the resident’s behaviour and expectations challenging at times.
The resident’s legal representative asked the landlord for a copy of its final complaint response on 3 November 2021. The landlord issued this on 21 July 2022 and said his neighbour was reminded of her tenancy obligations and it could not take action against them for using wax melts. It also said:
1. It was unable to send staff on some occasions due to availability and it could not always facilitate an immediate response. When they did attend, the smell was either not detected or the exact location could not be specified.
2. The resident’s wish for his neighbour to be evicted was disproportionate.
3. The resident’s complaint was brought to a close in February 2020 with his agreement. £50 compensation was awarded in acknowledgement that it should have spoken to his neighbour earlier and for poor communication.
4. The resident was offered alternative accommodation on a number of occasions. The offer was declined.
5. Adjustments were made to the neighbour’s letter box to minimise the smell of wax melts.
6. His neighbour moved out in October 2021.
The landlord said it was satisfied it had responded in a timely and proportionate manner. It also said it was not possible to take legal action due to the lack of evidence of any tenancy breaches. The landlord acknowledged there were failings with its complaints handling as it had not provided a letter marked stage 2 complaint until now. It apologised for this and said it had reviewed its complaint procedure to ensure all complaints were logged. It offered the resident £250 compensation for the distress and inconvenience caused. It also identified learning from the complaint.
The resident’s complaint was accepted by this Service on 16 September 2022. He said his landlord had not investigated his reports of cannabis smells. This was despite his neighbour admitting her visitors smoked cannabis in her flat and the landlord’s staff smelling it on the communal landing. He also said his landlord failed to make reasonable adjustments and he suffered ‘’sensory overload.’’ This led to emotional distress.

Assessment and findings

Scope of the investigation

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 resident’s complaint that he was treated less favourably and he was subject to disability discrimination, is outside the jurisdiction of this Service. Whilst this Service does not question the resident’s assessment of the events, we cannot make determinations on such matters. It would be more appropriate for the courts to deal with such issues. Nevertheless, we have looked at whether the landlord responded fairly and appropriately to the allegations.

The landlord’s handling of the resident’s reports of antisocial behaviour (ASB).

It is not the Ombudsman’s role to establish whether the reported ASB occurred, but to determine whether the landlord responded in accordance with its relevant policies and procedures and if its actions were fair in all the circumstances.
The landlord met the resident on 6 December 2019 to discuss his reports that his neighbour was using cannabis and the undesired effects the smell was having on him. It confirmed it needed evidence of the incidents and told the resident he should contact his housing officer, who would take reasonable steps to visit and witness the smell. It was appropriate for the landlord to do this and was in accordance with its ASB policy. It did not, however, complete a risk assessment, advise the resident to complete diary sheets or tell him to contact the police. It says it will do this in its ASB policy. This was a missed opportunity to gather evidence and gain an understanding of the nature and extent of the problem. It also meant the landlord did not use the early intervention tools available to it, including mediation and referrals to other agencies.
The landlord confirmed the outcome of the meeting in writing on 13 December 2019. It also advised the resident over the phone on the same day that it could not visit him straight away following reports of drug use. This was because of staffing levels. This was reasonable. However, it did not advise the resident to contact the police. This was a missed opportunity as the police are best placed to deal with incidents involving criminality.
The landlord visited the block on 18 December 2019. The member of staff could not smell wax melts but detected a faint smell of cannabis. This was reasonable. Gathering evidence is critical to resolving ASB cases and demonstrates the landlord was being fair and impartial in its approach.
The housing records show the landlord visited the resident’s neighbour on 10 January 2020 to discuss the reports of cannabis use. It would have been appropriate for the landlord to have done this earlier in accordance with its ASB policy. Early intervention can stop ASB issues from escalating and helps build trust with complainants. The resident’s neighbour admitted their visitors smoked cannabis in the flat but said they did not do it themselves.
The neighbour was told this was a breach of their tenancy agreement and that a notice seeking possession would be served if further reports were received. The landlord gave a verbal warning and advised the neighbour of her tenancy obligations. This was appropriate. The outcome of the conversation was confirmed in writing on 13 January 2020 and the resident updated on 16 January 2020. This was in accordance with the landlord’s ASB policy.
The landlord provided the resident with an update on 14 February 2020. It said it had identified the source of the cannabis smell and acknowledged that it could have dealt with the matter earlier. This was appropriate.
The resident made further reports of cannabis and wax melt smells in February 2020. The landlord confirmed that it would investigate the complaints about the use of cannabis, but it could do nothing about the smell of wax melts. This was appropriate. It also suggested the resident speak to his neighbour. This was in accordance with its ASB policy.
A member of staff also visited the block and noticed a faint smelt of cannabis outside his neighbour’s flat. It would have been appropriate for the landlord to have followed this up.
The landlord met the resident on 28 February 2020. The landlord acknowledged it should have approached his neighbour earlier or written to all of the residents living in the block asking them to refrain from smoking cannabis. This was appropriate. The resident later confirmed that he did not want to escalate his complaint any further.
The resident made further reports of cannabis and wax melt smells between April 2020 and July 2020. The landlord said it would investigate the reports of cannabis use but the resident told them not to do so. The resident was reminded to complete diary sheets and told to report the incidents to the police. It was reasonable for the landlord not to use its ASB policy to investigate the smell of wax melts. It was appropriate for the landlord to liaise with the police to try and resolve the issues.
The landlord advised the resident on 21 August 2020 that it was not proposing to evict him for swearing at staff and it could not necessarily accommodate his request for a new housing officer given the size of the team. This was reasonable. This demonstrated it recognised his vulnerabilities and wanted to work with him to address his concerns.
The landlord contacted the resident on 23 October 2020 and offered to support him to find an advocate. This was reasonable. It said it wanted to work with him but proposed to ‘’draw a line in the sand’’ regarding the matters he raised. It would have been appropriate for the landlord to have closed the case at this point given no reports of cannabis use had been reported for several months. The landlord’s ASB policy says cases will be closed after 21 days if there are no further reports or insufficient evidence to prove ASB. The landlord said the resident should continue to report incidents to his housing officer. This was appropriate.
The resident’s legal representative contacted the landlord on 12 November 2020. The landlord responded on 8 December 2020. It was reasonable for the landlord to say that burning wax melts was not a tenancy breach and that the neighbour had been advised on their tenancy obligations. It was also reasonable for it to note that an apology had been given for the failure to handle his complaint effectively. It was appropriate for the landlord to confirm the complaint was resolved with the agreement of the resident in February 2020.
The landlord met the resident and his legal representative on 19 August 2021 to discuss his complaint and the reports of cannabis and wax melt smells. It was reasonable for the landlord to offer the resident a move and a dedicated phone time slot to speak to a member of staff. This demonstrated the landlord wanted to work with the tenant and was happy to make reasonable adjustments to meet his needs.
The housing records show the landlord interviewed 2 members of staff that were in the block on 10 and 11 August 2021. It was reasonable for the landlord to do this and demonstrated it took the resident’s reports seriously.
In summary, the landlord did not initially follow its ASB procedure when the resident first reported his neighbour was smoking cannabis. It did not respond in a timely manner, carry out a risk assessment or use early intervention tools to try and resolve the problem. It did, however, acknowledge these mistakes and apologised. It also arranged for a member of staff to visit the block and gave his neighbour a verbal warning. It made alterations to her letter box, offered him a move to alternative accommodation and arranged for its staff to receive specialist training on autism. The resident accepted £50 compensation for the poor level of service provided.
In determining whether there has been service failure or maladministration, we consider both the events that initially prompted the complaint and the landlord’s response to those events. The extent to which the landlord has recognised any shortcomings and the appropriateness of any steps taken to offer redress are as relevant as the original mistake or service failure. In this case, the landlord acknowledged it made mistakes and made an offer of compensation that reasonably reflects what the Ombudsman would have ordered for the service failings present and the distress and inconvenience these will have caused.

The landlord’s handling of the resident’s complaint

The resident said he made a complaint in November 2019, but the landlord has not provided a copy of the complaint to this Service. The landlord has since confirmed the complaint was dealt with by the housing officer. This was not in accordance with the landlord’s complaints policy that was in place at the time. This said stage 1 complaints would be handled by either a team leader or another manager. It also led to confusion as the resident believed his complaint would be treated as a formal complaint.
The landlord did not provide a copy of the complaint response to this Service so it has not been possible to assess whether it addressed his concerns, acted fairly and put things right for the resident.
The landlord met the resident on 6 December 2019 to discuss his complaint. This was reasonable.
The housing records show the landlord treated the resident’s complaint as an ASB case rather than a formal complaint. It is evident the resident made it clear to the landlord on several occasions that he was unhappy with the landlord’s handling of his ASB reports. When receiving a complaint about ASB, it is important that the landlord distinguish whether the resident is complaining about the ASB itself or the landlord’s handling of the ASB case. The danger of not recognising the difference can lead to a delay of formally investigating the matter as a complaint, as was seen in the handling of this case.
The resident asked the landlord to escalate his complaint on 12 December 2019. He said he raised a formal complaint several weeks earlier and it had not been logged. He also said the landlord had failed to follow its complaints policy.
The landlord contacted the resident on 16 December 2019. It did not acknowledge his request to escalate the complaint or tell him when he could expect to receive a response. This was not appropriate.
The landlord contacted the resident again on 20 December 2019. There was no evidence this was the landlord’s stage 1 complaint response, although the landlord has since told this Service it was. This was not appropriate or in accordance with the landlord’s complaints policy. It also led to confusion.
The resident responded the same day and asked the landlord to confirm his complaint had been escalated to stage 3 of the landlord’s complaints policy. He asked again on 21 and 28 January 2020. It would have been appropriate for the landlord to have responded to these requests and clarified what stage the complaint was at and when the resident could expect to receive a response.
The landlord contacted the resident on 5 February 2020 and asked him if he would be happy to meet to discuss his complaint and how the landlord’s staff made him feel. This was reasonable. It would have been appropriate at this point for the landlord to have also confirmed its position regarding the stage the complaint was at.
The landlord contacted the resident on 14 February 2020. The landlord apologised for failing to respond to the emails the resident sent in December 2019. This was appropriate. It also confirmed the resident’s complaint was still at stage 2 of the landlord’s complaints policy and it was happy to meet with him to resolve his complaint. It would have been reasonable for the landlord to have confirmed at this point when it would provide its response to the resident’s complaint.
The landlord met with the resident on 28 February 2020. The resident advised the landlord on 3 March 2020 that he did not want to progress his complaint any further. It would have been appropriate for the landlord to have confirmed in writing that the complaint was resolved to avoid any further confusion.
The resident contacted the landlord on 14 August 2020 and said he was unhappy because the landlord had threatened to evict him for swearing. He also asked for a different housing officer and said the landlord should have offered him an advocate. It would have been appropriate for the landlord to have opened a new complaint at this point given the issues the resident raised were new concerns.
The landlord told the resident on 23 October 2020 that it ‘’proposed to draw a line in the sand’’ regarding the matters he raised. This was not appropriate given the resident had raised new concerns and he had not received a formal complaint response from the landlord.
The resident’s legal representative contacted the landlord on 12 November 2020. The landlord responded on 8 December 2020 and confirmed the complaint was resolved in February 2020 with the resident’s agreement. This was not appropriate given the resident had raised new concerns and had not received a formal complaint response from the landlord.
The landlord met with the resident and his legal representative on 19 August 2021. It confirmed the resident had exhausted the landlord’s complaints process. This was not appropriate given the landlord had not formally responded to the resident’s complaint.
The landlord sent its final complaint response on 21 July 2022. It was appropriate for the landlord to offer an apology for delays in providing a stage 2 complaint response and offered the resident £250 compensation for the distress and inconvenience caused. The level of compensation offered was reasonable. This is because the landlord took steps to address the mistakes it initially made and subsequently responded in accordance with its ASB policy. It also reflects what the Ombudsman would have ordered for the service failures present and the distress and inconvenience these will have caused. The landlord has not provided this Service with evidence as to whether this offer was accepted by the resident.
In summary, the landlord’s handing of the resident’s complaint was not in accordance with either its new or previous complaints policy. It did, however, identify learning from the complaint and offered £250 compensation for the distress and inconvenience caused.
In this case, although there were multiple failures with the landlord’s response to the resident’s complaint, it acknowledged these and made an offer of compensation that reasonably reflects what the Ombudsman would have ordered for the service failings and the distress and inconvenience these will have caused to the resident.

Determination

In accordance with paragraph 53 (c) of the Housing Ombudsman Scheme, there was reasonable redress by the landlord in relation to its handling of the resident’s reports of ASB.
In accordance with paragraph 53 (c) of the Housing Ombudsman Scheme, there was reasonable redress by the landlord in relation to its handling of the resident’s complaint.

Recommendations

The landlord pays the £250 compensation previously offered to the resident, if this has not already been paid.