Southern Housing Group Limited (202015874)

REPORT

COMPLAINT 202015874

Southern Housing Group Limited

14 December 2021

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s response to the resident’s reports of ASB, in particular with regards to the use of cannabis by other residents on the block.

Background and summary of events

The resident has an assured tenancy with the landlord for a two-bedroom flat in a block of 10 properties.

Policies, procedures, and agreements

Tenancy agreement:

This sets out the obligations on the landlord and the tenant. It includes an obligation on the tenant not to cause, or let anyone else who lives in, or visits the property, to cause a nuisance to anyone living in the locality of the property.

ASB Policy:

This defines ASB as conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises. It gives examples of ASB as including substance misuse or drug dealing.
The policy sets out how the landlord will deal with ASB. The key points being:
1. We risk assess all reported ASB incidents to determine their severity.
2. We will work in partnership with other agencies and organisations to ensure the best outcome for the victim. This can include arranging or participating in multi-agency meetings to resolve complex cases; participating in local Community Safety Partnership meetings; and developing strong working relationships with the local Police.
3. Where reports are assessed as high risk the complainant will be contacted within 1 working day to discuss an action plan. Complainants reporting medium risk or low risk will be contacted within 2 working days.
4. Complainants will have an assigned case handler who has responsibility to keep in regular contact with them.
The policy states that an ASB case will be closed if there is insufficient evidence to take action.
The policy sets out the landlord’s service standards for dealing with ASB which includes agreeing an action plan and contacting the customer every two weeks (or other agreed frequency).

ASB Tools & Powers procedure document:

This states that there is no prescribed route for dealing with ASB and each case should be considered depending on its own facts. All available tools and remedies should be considered, and any action taken should be reasonable and proportionate to the situation.
The tools available to the landlord include, verbal and written warnings and letters to all residents on a block (where the identity of the perpetrator in unknown). Other options include Acceptable Behaviour Agreements and Mediation as well as formal legal action in the form of injunctions and possession.
This policy states that where an alleged perpetrator denies ASB, if there is insufficient corroborative evidence, the landlord should monitor and try to gather further evidence. Each case will be different and how a long a case should be monitored will depend on the particular facts of a case. However, the policy stressed that the landlord should be pro-active in monitoring the case and keep on engaging with the parties.

Compensation policy:

This states that the landlord will make a payment when there is evidence that there has been a service failure that it is responsible for. The policy states that service failures include: ‘Not following policies and procedures’.
In terms of compensation for service failure, it states that in recognition of poor service, or failure to follow policy/procedure, or act in a reasonable manner, a goodwill payment up to £25 can be made. For multiple service failures a payment of between £25 – £50 can be made.

Scope of investigation

The resident has said that this issue has been ongoing for several years and she has been raising this with the landlord between 2016-2019. However, there is no evidence that any formal complaints raised by the resident had either exhausted the landlord’s complaint process and/or that any such complaint was referred to the Ombudsman during that time.
The Ombudsman understands that this present complaint was logged in August 2020. This investigation report will therefore consider events from July 2019 onwards on the basis of what the Ombudsman considers to be a reasonable period in light of the provisions of the Housing Ombudsman Scheme and considering the available evidence. It should be noted however that all of the evidence provided by both parties has been considered.
As such, whilst this report may reference some historical events for the purposes of context, the scope of this investigation will be limited to consideration of the landlord’s handling of the reports from July 2019 onwards up until the final complaint response on 8 March 2021.

Summary of events

On 8 July 2019 the resident reported a smell of cannabis around her property and raised her concerns about drug use on the block; she also said that she had reported this to Police. Further similar reports were raised over the next few weeks alleging a neighbour (‘Tenant A’) was responsible for the smell.
The landlords records show a case update on 24 July 2019. This stated that whilst the resident had made allegations, Tenant A had been spoken to and denied any drug use. The Police had also visited and no further action was being taken at this time. The note states that the landlord would need evidence (possibly from the Police) to determine where the smell was coming from, and without such evidence, and in the absence of any criminal action, it could not do much more.
The landlord wrote to the resident and explained its current position, that without a ‘high level of evidence’ that Tenant A was responsible, it could take further action for any potential tenancy breach.
The landlord took the approach that use of cannabis was not ASB, and it was a criminal offence and therefore a Police matter. As such, it expected the Police to take the lead on any action. It did however send out a letter to all the residents on the block about the tenancy consequences of drug use.
The landlord said that it had carried out visits to the block but it had not evidenced the smell of cannabis from any one particular property. It said it would continue to monitor the situation.
The resident remained unhappy and maintained that drug use was ASB and the landlord needed to tackle the drug problem on the block. Further similar reports were sent in by the resident in August and September, which were acknowledged and added to the case file. However, there is no evidence that the landlord responded to each and every report.
The internal correspondence in October 2019 between the landlord and the Police showed that the Police had made further enquiries with Tenant A and they had ‘firmly denied’ the allegations and had said it was other tenants but did not specifically identify whom. The Police agreed to keep trying to patrol and keeping eyes and ears open, and it would do a flyer drop, but without any definitive or corroborated evidence it could not take any action. The landlord and Police agreed to continue to work together on this.
The landlord wrote to the resident in October 2019 to update her of the present position with regards to the ASB reports and its contact with the Police. Following unannounced visits to the block it had not been able to identify Tenant A as the perpetrator and the Police too found no evidence of drug use at the property.
On 9 October 2019 the ‘Community Warden’ on the estate emailed the landlord to say that he had been contacted by the resident about cannabis smell. ‘…[resident] has just reported again about the smell from [alleged perpetrator property] so I popped down to witness, it absolutely stunk of weed’. There is no evidence of the landlord’s immediate response to this email.
The internal emails around this time showed that the landlord maintained that it did not have enough evidence that the perpetrator was Tenant A. The records note that the Police visited the resident on 18 October 2019 and reiterated this.
An internal case review note at this time shows that the senior officer was in agreement with the actions taken so far given the lack of evidence to establish the perpetrator. The records also show that the resident was visited by the landlord on 12 December 2019 to discuss the ASB issue. It was discussed that whilst the resident believed the perpetrator to be Tenant A, the landlord and the Police did not have sufficient evidence to corroborate this. The case was then closed due to a lack of evidence.
The resident continued to send in similar reports between January and April 2020 and her own diary notes of dates when the smell occurred. These were logged by the landlord but there is no evidence of its specific response to these reports.
The landlord has said that it re-opened the case for investigation in May 2020 and told the resident it would be liaising with the Police about the recent incidents and to establish if the Police was taking any further action.
On 16 July 2020 the landlord visited the block with a PCSO and at this time another tenant made counter allegations about the resident constantly watching her and her family and accusing them of drug dealing. The follow up call between the landlord and the Police confirmed that there was insufficient evidence and it was not possible to simply take the resident’s word that Tenant A was the perpetrator. It was also noted that other tenants had not identified Tenant A as the perpetrator.
There was ongoing correspondence in July 2020 between the resident and the landlord reiterating that despite unannounced visits with the Police, it had not been able to identify which flat the smell was coming from. The landlord explained that it needed to identify a tenant in order to take tenancy enforcement action against them. There was also some confusion at this time with the landlord making reference to a different tenant potentially being the perpetrator.
The resident logged a formal complaint on 26 August 2020 and said that she was unhappy with the landlord’s handling of the smell issue so far and for its lack of communication and action; and for not following its ASB policy.
The complaint was acknowledged on 1 September 2020. The complaint investigations show that the last visit to the block to check for evidence of drugs was on 4 September. A detailed statement was also provided by the investigating officer explaining what actions had been taken so far, and why it had not been able to take action against the alleged perpetrator. It explained that the alleged perpetrator was pregnant and had two small children and she counter alleged that the resident was harassing her. The officer accepted that someone on the block was smoking drugs inside their flat, but there was no definitive evidence that the smell was emanating from Tenant A’s property. The property had been visited on several occasions over the year and no smell or evidence of drug use was found. The Police had witnessed the smell of drugs outside the block but could not establish where it had come from.
With regards to the Community Warden having witnessed the smell, he was able to confirm the smell just outside the communal front door but could not confirm exactly which flat may have been responsible. The officer accepted that not all of the resident’s emails had been responded to, but this was because there was no new evidence to consider to link it to Tenant A (or any other tenant).
There was a delay in issuing the complaint response and the landlord informed the resident of this and said it was due to unexpected staff absence. The landlord issued its complaint response on 2 October 2020:
1. It apologised for the delay in responding to complaint.
2. It confirmed that it had made unannounced visits to the block with the Police and no evidence of drug use was seen during those visits.
3. It accepted that the resident had not been updated following all of the visits and it apologised for this.
4. Despite further visits the landlord had not been able to identify any perpetrator(s) and therefore had not been able to take any action against any individuals for breach of tenancy. As it stands, it did not have enough evidence to take formal action against anyone.
5. It acknowledged the lack of communication, and said that, apart from the communication failure, it had acted correctly and in line with its policy in handling the ASB reports.
The landlord wrote to the resident on 5 October 2020 again explaining that it accepted that drugs were being used in the block, but it could not identify the perpetrator and therefore could not take any further action.
The resident requested that her complaint be escalated to the next stage. The landlord confirmed that the Police were considering using a Community Protection Notice to deter youths from congregating near the block (as this was thought to be potentially linked to the cannabis smell).
With regards to the complaint escalation process, the landlord explained that due to ‘staffing and workloads’ it could not convene a Panel to carry out a review hearing until January. It apologised for this and suggested that a Senior manager could do a case review instead if the resident was not willing to wait for a Panel hearing. The resident agreed to the Panel hearing in January 2021.
The records show that a possible Panel hearing was pencilled in for late December 2020 but due to issues with providing the information to the resident on time, it was agreed that the hearing would take place on 11 January 2021.
Following the Complaint Review Panel Hearing on 11 January 2021, the landlord issued its Stage 2 final complaint response on 20 January 2021:
1. It set out its findings following the Complaint Review Panel Hearing.
2. It apologised for the delay in setting up the Complaint Review Panel Hearing.
3. It acknowledged that the type of ASB being reported by the resident (cannabis smell) was difficult to prove and take action against. However, the Panel agreed that the landlord ‘could have dealt with the issue more effectively as they had not followed their own policy and procedure’.
4. It accepted that it had failed to utilise an action plan.
5. It accepted that it had put too much emphasis on the Police taking action and it should have considered other options and how else it could gather more evidence to help the Police take action.
6. The landlord could also have considered if there was anything else it could do to improve the ventilation in the resident’s flat to try and disperse the smell and/or stop the smell from entering into the flat.
7. The complaint was upheld on the basis that the landlord had ‘failed to respond to your concerns in a satisfactory manner’.
8. Going forward it recommended that the landlord take steps to address its failure. This included consider using a professional witness service; get legal advice on what action can be taken; look at ways to reduce the smell in the communal area; letter of apology; and draw up an action plan so that the resident knows what is happening and when.
9. The landlord was to also look at what learning it could take from this case to help improve its staff’s ASB handling in the future.
The landlord issued a letter of apology to the resident on 26 January 2021 and said that it was working towards implementing all the Panel recommendations and it would update her further within 10 working days.
The landlord updated the resident on 4 February 2021and said it was in the process of formulating an action plan. On 9 February 2021 the landlord offered the resident £150 compensation in recognition of its service failure. This offer was rejected by the resident.
On 12 February 2021 the resident wrote to the landlord saying that the Panel recommendations had still not been put in place. She also said that she would be willing to accept £600 compensation on the basis that all the recommendations are carried out as soon as possible.
The landlord’s internal correspondence shows that a review meeting then took place and the compensation offer was considered again. The landlord then issued its final complaint response on 8 March 2021. This stated that it would continue to work with the resident to put into effect the recommendations of the Panel. It apologised for earlier failings and reiterated its commitment to work with the resident and the Police to address the smell issue. It also reconfirmed its final compensation offer as £150.
The records show that the landlord sought legal advice in March 2021 about its legal options given the evidence it currently had. The advice of the legal team was that the legal options, e.g. an injunction or possession order could only be considered if the landlord knew for sure which tenant and/or property was responsible for the breach. The legal team also said that the landlord needed to take into account that other people (who were not tenants) could also be using drugs in the vicinity of the block. Based upon the actions taken so far, the legal advice was to continue investigations with the Police until sufficient evidence against the perpetrator(s) was firmly established as without this evidence any legal action would be unsuccessful.
The resident referred the matter to this Service on 12 March 2021 and reiterated that she was seeking £600 compensation.
This Service understands that by May 2021 the landlord had acted upon the majority of the Panel recommendations.

Assessment and findings

The Ombudsman’s role includes an assessment of whether the landlord has followed its policies and procedures and acted appropriately. It is important to note that it is not the purpose of this report to investigate the actual ASB or to assess the credibility of the reports made by the resident. Our role is to consider the landlord’s response to the reports it received, and to the formal complaint, and consider whether its response was reasonable in all the circumstances of the case. In doing so, the Ombudsman will not only consider the landlord’s response to the substantive issue, but also the actions it took within its complaints process.
The landlord has demonstrated in its complaint responses that it has formally acknowledged and accepted its service failures with regards to its handling of this matter, in particular with regards to its communication failings. It has acted appropriately by apologising for the service failures and offered compensation of £150 which the resident has rejected.
The issue that needs to be considered is whether or not the landlord’s offer is reasonable redress for the service failure(s). In considering this, the Ombudsman has taken into account the landlord’s own compensation policy, as well as the Ombudsman’s Dispute Resolution Principles (be fair, put things right and learn from outcomes) and our published Remedies Guidance. One of the factors that the Ombudsman considers is whether the redress is proportionate to the severity of the service failure by the landlord.
There has been a large amount of correspondence between the resident and the landlord on this case. Whilst the resident’s dissatisfaction with the landlord is duly noted, the report will not be addressing each and every specific issue or incident. Rather, the Ombudsman has carefully considered all the available evidence and this report will take a view on the landlord’s overall handling of the matter.
The resident’s comments about how difficult it has been for her having to live with the cannabis smell are acknowledged. However, the Ombudsman’s role is to consider how the landlord has addressed her concerns and to determine whether its approach was appropriate and proportionate to the issues being reported and the evidence available to it at the time. With regards to the resident’s comments about the potential adverse impact of the smell on her health, it should be noted that the Ombudsman cannot make any formal determination on a possible causal link between the cannabis use and the resident’s health. The resident would need to seek her own professional medical advice on this matter.
Turning now to the facts of the case and the landlord’s actions in response to the ASB reports. Looking at it overall, whilst the actions taken by the landlord to address the problem, were on the whole, appropriate and proportionate to the nature of the reports, there were also shortcomings in its handling and its communication with the resident.
The problem being reported were allegations that a particular tenant was using drugs within the block which was resulting in a smell not only within the block, but also within the resident’s property. The Ombudsman accepts that such cases can be difficult to deal with as there needs to be strong enough evidence to show that a particular tenant or property is responsible for causing the smell. This is where the landlord has faced the most difficulty and where the resident’s frustrations ultimately stem from.
Looking at the available evidence, the landlord has taken appropriate steps to investigate this issue. It has carried out numerous unannounced visits with and without the Police and it has not been able to collate sufficient evidence such that would enable it to identify the perpetrator.
It spoke to the neighbour about the allegations and it was satisfied that there was no evidence of drug use within the property at the time of its visits. It sent out letters to all residents on the block about the problem and warned of the consequences on their tenancy. It liaised with the local Police and worked with them to try and identify the offending property. These actions were all appropriate and reasonable steps taken by the landlord. In doing so, the landlord has demonstrated that it has taken the resident’s concerns seriously and it was committed to working with her.
The landlord’s records show that, on the whole, it responded to the reports of ASB and explained what it had done, and why it could not take further action. Where there were issues of potential criminal activity, such as allegations of drug-dealing, it was appropriate for the landlord to advise the resident that she needed to report this to the Police.
Given the lack of clear evidence, and the advice from the Police, it was not unreasonable for the landlord to say that it did not have enough evidence of a tenancy breach, and as such, it could not take formal action against Tenant A.
The resident is clearly unhappy with the lack of formal action against Tenant A, but it must be borne in mind that the landlord is guided by the evidence available to it, and in this case, whilst the resident is adamant in her own belief that Tenant A is responsible, the Police hold a different view and have said that they have insufficient evidence for further action to be taken. In such circumstances, it is not unreasonable for the landlord to be guided by the Police.
Having said all the above, whist it is noted that the landlord took steps to address the reports, and it was clearly hamstrung by the lack of evidence, it must also be said that there were some service failures with the landlord’s handling.
In particular, there were several instances of long delays where the resident was sending in emails to a central inbox with further reports and her diary logs, and whilst these were sporadically acknowledged, there is little evidence to show that the landlord responded to all these reports. The landlord has said that this was in part due to these reports not requiring action. But be as that may, the landlord ought to have at least periodically updated the resident on the reasons why. Its ASB service standards require it do so, and the landlord failed in this regard.
Another service failure – which has been rightly acknowledged by the landlord in its complaint response – was its failure to draw up an action plan at the start of the case. Had it done so, it could have managed the resident’s expectations better and agreed when updates would be given. This would have helped reassure the resident that her concerns had not been ignored.
The Ombudsman has also taken into account that some of the gaps in communication were the result of COVID 19. For instance, the landlord has said that some of its staff had been furloughed for a period and due to the COVID 19 restrictions it had been limited to carrying out only essential ASB visits.
In addition to the lack of communication, there were also other service failures. For instance, with regards to the landlord failing to consider if there were any other practical measures it could take to assist the resident, such as sealing vents etc. to try and minimise any smell coming into her flat.
The landlord acted appropriately by recognising its service failures within its complaint responses and it is to be commended that it set out a series of recommendations on how it could do better. However, it is noted that it failed to act in accordance with its compensation policy as it did not offer any compensation within its Stage 2 complaint response despite having evidence of service failure. This was then rectified in a later complaint response.
In assessing the issue of compensation for the service failures, the Ombudsman takes account of a range of factors including any distress and inconvenience caused by the failure, the amount of time and effort expended on pursuing the matter with the landlord, and the level of detriment caused by the landlord’s actions/inactions. It also considers whether any redress is proportionate to the severity of the service failure by the landlord and the impact on the resident.
In this case the Ombudsman has considered the landlord’s offer in light of the facts of the case and the available evidence, and it takes the view that the landlord’s offer is not reasonable redress for the service failure, and it does not fully take into account the distress and anxiety caused to the resident.
The Ombudsman has also taken into account that, whilst the Panel’s recommendations were a positive step forward, the landlord was slow to implement all the recommendations. For instance, the resident has said that two months after the hearing, she had still not been provided with an action plan. Similarly, the works to the property were not completed until May 2021. As such, additional compensation would be warranted in this case.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its response to the resident’s reports of ASB, in particular with regards to the use of cannabis by other residents.

Reasons

Overall, the landlord has shown that the actions it took to address the problem were appropriate and were based upon the limited evidence it had. However, there were shortcomings in its communication with the resident. The landlord is to be commended for recognising its failures in its complaint investigation and offering compensation and making recommendations for future learning. However, its offer of compensation of £150 was not reasonable or proportionate to the distress and inconvenience caused and it did not fully take into account the length of time spent by the resident in pursuing this matter.

Orders and recommendations

Order

The landlord should, within four weeks of the date of this report:
1. Pay the resident an additional £150 compensation (on top of its original offer of £150) for any distress and inconvenience caused by the service failure identified in its handling of the ASB reports. This takes the total compensation award payable by the landlord to £300.
Evidence of the payment of compensation to be provided to this Service within four weeks.