London & Quadrant Housing Trust (L&Q) (202206230)

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REPORT

COMPLAINT 202206230

London & Quadrant Housing Trust (L&Q)

28 February 2024

 

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

  1. The complaint is about the landlord’s:
    1. response to the resident about antisocial behaviour (‘ASB’) from tenants of a leasehold flat below.
    2. complaint handling.

Background

  1. The resident is a leaseholder. The property is a flat located above another leasehold flat which was sublet in the timeframe of the complaint.
  2. From late November 2021, the resident made ASB reports about the tenants in the leasehold flat below, and she subsequently raised concern that the leaseholder and the landlord were ignoring their respective lease obligations. The resident mainly reported cannabis being smoked, affecting her property, but she also reported antisocial noise; being followed; and a gate being screwed shut, denying her access to her own garden. It is understood the gate access was resolved after 4 days, but the resident asked the landlord about liability for some damage caused to the gate.
  3. Between November and December 2021, the landlord sent a warning letter to the leaseholder about the cannabis. In January 2022, the resident reported further issuesafter which the landlord made unsuccessful attempts to call the leaseholder.In February 2022, the landlord wrote to the leaseholder again, and told the resident that further potential steps were a visit, an acceptable behaviour contractand mediation.The same month, the resident said that 25 recordings submitted via a noise app were pending review, and the landlord sent her diary sheets and advised her to change an app settingfor it to review the recordings. Later the same month,the landlord unsuccessfullyattempted to visit the leasehold flat below, and received confirmation from the police that they had smelled cannabis by the front door and on a landing area between the two properties.
  4. In early March 2022, the landlord visited and spoke to the leaseholder and their tenant. A cannabis smell was not present at this visit, but the landlord noted that the leaseholder had spoken to their tenants and they had agreed not to smoke cannabis in the flat; the leaseholder had been made aware about the gate; and the leaseholder reported that the resident’s toilet system was leaking into their property, which she was asked to contact the leaseholder about. The landlord said that photographic evidence of cannabis being smoked would be needed, and its legal team would need to make a decision about who was liable for damage to the gate.
  5. In mid March 2022, the resident’s solicitor sent a ‘letter of claim’ to the landlord, which enclosed a separate claim to the leaseholder. This detailed over 100 alleged ASB incidents up until the previous day, and asked for the leaseholder’s tenants to smoke away from the property and stop other nuisance such as loud music. The letter to the landlord noted that cannabis was not smelled at the most recent visit as the tenants had prior notice of it, but the smell had reappeared. It said the landlord was in breach of its lease obligations by failing to take action against the leaseholder and their tenants, and asked it to confirm steps were being taken so the breaches ceased.
  6. In May 2022, the landlord’s solicitor responded that there were counter allegations of a leak from the leaseholder, and asked the resident to engage with the landlord’s letters about resolving the leak. The same day, the resident asked the landlord’s solicitor to respond to her solicitor’s March letter, and the resident’s solicitor informed the landlord’s solicitor that they were waiting for instructions from the resident.
  7. On 27 July 2022, the resident complained to the landlord. She had reported cannabis being smoked in the downstairs flat, which could be smelled throughout her own, since November 2021. The landlord’s legal department had been written to, but they had only responded about the leak and not about the ASB. The following day, the resident was informed by a housing officer that they would review records and update her.
  8. In September 2022, the Ombudsman informed the landlord that the resident had complained about a lack of response concerning cannabis, noise and a gate, after which the housing officer wrote to the leaseholder and said that if cannabis use did not stop, the landlord may issue legal proceedings.
  9. In October 2022, the landlord provided a stage 1 response. It noted letters were sent after reports in November 2021, cannabis could not be smelled after a visit in March 2022, and police had said they had not visited the property. It noted that counterclaims were made about a leak, and its legal team had said the strongest form of evidence would be a photo of the perpetrator smoking cannabis. It noted that the housing officer had sent a letter to the leaseholder and would continue to support the resident. It apologised there were some delays in solicitor responses, but said it did not consider that its solicitor’s actions had resulted in the resident’s solicitor waiting 3 months for contact.
  10. The following day, the resident requested escalation, noting that she had not received a response from the landlord’s solicitor about the cannabis and a gate, despite requesting a response in May. In December 2022, the Ombudsman contacted the landlord about a lack of response. In April 2023, we contacted the landlord again, after which it wrote to the leaseholder noting that it had received a complaint about cannabis smoking and action would be taken against them if correct. The landlord subsequently discussed the issue with its legal team, as well as with the leaseholder, who said there was no ongoing issue with cannabis as their tenants had moved out in April 2022, although they had been attending the property twice a week to get belongings up until they had officially moved out in March 2023.
  11. In April 2023, the landlord provided a stage 2 response. It noted that the ASB case was closed in March 2022 as it had contacted parties, sent letters, and referred the case to the legal team after reviewing it. It noted that the resident had complained in September 2022 that she was still experiencing ASB including cannabis smoking and noise, and her housing officer had written to the leaseholder in October. It noted that the leaseholder said their tenant had been attending twice a week to collect belongings after moving out in March 2022, after the cannabis complaint, but the tenancy had recently officially ended. It noted that in October 2022 its solicitor said they awaited instructions from the resident’s solicitor and requested information about the ASB. It was noted that the resident referred them to previous correspondence but had not provided details or evidence. The landlord concluded that it had not failed in its provision of service, as its solicitor had requested evidence of the ASB but this was not provided, and its housing officer had contacted the leaseholder who had confirmed there should be no problem with cannabis smell anymore as no one was living at the property.

Assessment and findings

The landlord’s response to the resident about ASB from tenants of a leasehold flat below

  1. ASB case management is a crucial aspect of a landlord’s service delivery. Effective use of an ASB procedure enables a landlord to identify appropriate steps to resolve potential areas of conflict, improve landlord/resident relationships and improve the experience of residents residing in their homes. ASB cases are also often the most challenging for a landlord as, in practice, options available to a landlord to resolve a case may not include a resident’s preferred outcome, and it can become difficult to manage expectations.
  2. In cases relating to ASB, it is not the Ombudsman’s role to determine whether ASB occurred or who is responsible. It is also not within the Ombudsman’s authority or expertise to decide on matters such as lease breach in the same way as the courts. However, the Ombudsman can assess how a landlord dealt with reports it received in the timeframe of a complaint, and assess whether it followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case.
  3. Following the resident’s reports, it was necessary for the landlord to respond to her concerns and to take action in accordance with its ASB policies, which cover leaseholders and their visitors.
  4. The landlord is expected to take action such as assess the risk; discuss the case with the resident, alleged perpetrator and other agencies; interview witnesses; agree an action plan and keep in regular contact with the resident; provide support on gathering evidence; update cases with new information; monitor the situation, including with other agencies; and deal with reports in an appropriate manner. It aims to use warning letters, mediation and acceptable behaviour contracts to prevent problems escalating; and consider enforcement action based on the nature of the ASB and lease responsibilities. It closes cases where it concludes ASB has ceased; it has delivered appropriate action and no further action is necessary; it has passed the case to a third party better placed to deal with the problem; a resident fails to provide information to progress the case; there is insufficient evidence; or no further action is possible.
  5. The landlord’s initial actions in respect to cannabis were in accordance with its ASB policy. However, there are aspects where it did not act appropriately, as it:
    1. failed to follow up, review and address the resident’s reports about noise reports and liability for damage to the gate.
    2. failed to make and monitor an effective action plan with the resident, and to consider further informal interventions.
    3. failed to consider appropriate actions after the resident’s March 2022 letter of claim.
  6. The cannabis issue was the landlord’s main focus, although the resident also complained about issues such as noise and a gate. The resident submitted noise recordings, but the landlord does not demonstrate that these were reviewed or considered. It should have demonstrated it addressed this, reviewed recordings and diary sheets, and potentially signposted to the local authority in respect to installation of noise monitoring equipment. The resident was also reportedly locked out of her garden for several days due to the leaseholder’s tenant screwing the gate shut, and was informed that queries about liability for damage to the gate were referred to the landlord’s legal team, but it is not evident these were responded to. It is not reasonable that the landlord did not consider and address the noise and gate issues as part of its review of the ASB issues, as this meant it did not consider matters in a holistic way. This undermines whether it made decisions about the ASB in a reasonable way, which is not satisfactory.
  7. The smell of cannabis is understood to have not been present at the landlord’s visit in early March 2022, which the resident suggests was because there was notice of the visit, but the allegations do not seem without basis. The landlord’s February 2022 letter to the leaseholder said there was a strong cannabis smell during building inspections, and it had written confirmation from the police that cannabis was smelled in communal areas. That the tenants smoked cannabis also did not seem in dispute in March, when the leaseholder said their tenant had agreed not to smoke cannabis in the property.
  8. There is no evidence that a clear action plan was agreed with the resident which it monitored and reviewed when the resident reported that the cannabis issue continued to be ongoing. The landlord’s informing the resident that photographic evidence of the perpetrator smoking cannabis would be required seems unhelpful and unrealistic, and seems to disregard other ways it could try to build evidence. The landlord should have agreed a clearer action plan to monitor cannabis and other ASB issues; demonstrated a clearer approach with the police; and considered other informal tools it mentioned such as mediation.
  9. The resident alleged that cannabis was being smoked on almost a daily basis for a lengthy period, and says the cannabis issue had a significant impact on her, as it affected rooms including her landing, bedroom, living room and bathroom. This seems to merit more than the 1 successful visit the landlord did. It could have carried out more spot checks and visited the resident’s property in order to assess how she was being affected. The resident’s ASB logs sent in March 2022 to the landlord’s solicitor also indicated that she had a lodger who was a party to the issues. The landlord could have investigated this and explored if they were willing to be a witness, in line with its ASB policy.
  10. The landlord reviewed the case and closed it because the issue had been referred to its legal team. This would be reasonable if there was some progress, but no substantive action was taken after this, or after the resident submitted a letter of claim in March 2022. The resident said that ASB such as cannabis smoking was continuing, after being told in early March that the tenants had agreed not to smoke cannabis in the property, and enclosed an ASB log of over 100 incidents from September 2021 up to the day before the claim. The lack of substantive response to the letter does not seem reasonable given the logs said alleged ASB was frequent and ongoing over 6 months. The Ombudsman is of the view that when pre-action letters are received, it is important that landlords do not disengage from the issue itself, as is evident here. While it may have been felt that no legal action could be taken, it is not satisfactory that no action was considered or offered that could be taken under the ASB policy.
  11. The landlord wrote to the leaseholder in October 2022 and April 2023, saying that if cannabis was being used it would take legal action. This was positive, but seems slightly contradictory to other messaging to the resident and the advice it received from its legal department. The landlord’s stage 1 response also said police had not visited the property, which comes across as confusing as it supplies evidence that police did visit. The landlord comes across as having an unclear approach, which does not seem beneficial to effective management of such issues or of resident expectations.
  12. The landlord was informed by the leaseholder in April 2023 that the tenants moved out in March 2022 but officially ended the tenancy in April 2023, returning to the property every week or so to collect belongings. The inference is that the cannabis and noise issues ceased from March 2022, but the resident says her own experience contradicts this. She said she continued to experience cannabis and noise until April 2023, and questions whether the property was vacant in April 2023 as was stated. The landlord’s handling meant it missed the opportunity to monitor and make its own conclusions on such allegations in an evidence-based way, which is not satisfactory.
  13. While the landlord wrote 2 letters and spoke to the leaseholder and their tenants, its lack of monitoring and action for lengthy periods also gives the impression that it did not take the resident’s reports seriously, which will have undermined the resident’s confidence in the landlord for a lengthy period. Just as importantly, the landlord’s approach may have also given the leaseholder the impression it was not taking matters seriously, which in turn may have also given the leaseholder little incentive to take the issue seriously.
  14. Overall, the landlord fails to demonstrate that it appropriately investigated and responded to the resident’s reports of cannabis, noise and other issues. The landlord’s handling meant that investigation of ASB in effect stalled for 13 months from March to October 2022 (when a further warning letter was sent), and from October 2022 to April 2023 (when the landlord spoke to the leaseholder), despite the resident chasing in May, July and September 2022 and being told in July that the case would be reviewed. This leads the Ombudsman to find maladministration and to make orders including compensation.
  15. The resident says she paid over £7,000 in legal fees and the ordered compensation is considered proportionate to the identified service failings. It is recognised that the issues caused the resident frustration and distress and she wanted effective action as soon as possible, but it is not clear that the landlord had the time and opportunity to fully exhaust all informal interventions before a solicitor was instructed to take action against the landlord and the leaseholder. The Ombudsman does not make definitive decisions in respect to legal action costs in the same way as the courts, and the resident has the option to take independent advice for this aspect.

The landlord’s complaint handling.

  1. The landlordaims to respond at stage 1 within 10 working days, and at stage 2 within 20 working days. Thelandlord responded at stage 1over 2 months after it should have responded and at stage 2, over 5 months after it should have responded. This meant the responses were delayed by over 7 months.Both stages involved intervention from the Ombudsman.It should not require multiple chasing from the Ombudsman to progress a complaint, and the landlord’s responses did not acknowledge this, the delays in its responses, or consider compensation in line with its policy that it pays compensation if it fails to respond to advertised timeframes.
  2. The landlord also missed the opportunity that the complaints procedure provides to effectively investigate and respond to the complaint in an evidence-based way. It failed to identify and address issues with the handling of the ASB, and failed to address issues such as noise and the gate when these were raised by the resident and the Ombudsman before both responses.
  3. This meant that the landlord’s responses were not in accordance with the Ombudsman’s Dispute Resolution Principles to be fair by properly considering the complaint, putting things right, and learning from outcomes. This leads the Ombudsman to find maladministration in the landlord’s complaint handling and to order compensation. It is noted that determinations that post-date the complaint responses in this case made previous orders in respect to the landlord’s complaint handling, and so only a recommendation is made here.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was:
    1. maladministration in the landlord’s response to the resident about antisocial behaviour from tenants of a leasehold flat below.
    2. maladministration in the landlord’s complaint handling.

Orders and recommendations

Orders

  1. The landlord to, within 4 weeks:
    1. pay the resident £900 compensation. This comprises £600 for the ASB handling and £300 for the complaint handling.
    2. liaise with the resident to establish if she still requires a response about the liability for damage to the gate, and set out its position to her if so.
  2. The landlord to, within 8 weeks, carry out a case review and consider any learning in respect to how it responds to, develops action plans, and manages expectations, for:
    1. allegations of ongoing and frequent cannabis use, on their own and in conjunction with other ASB such as noise.
    2. allegations involving leaseholders and alleged breaches of the lease.

Recommendations

  1. The landlord to ensure that it responds to complaints in a timely manner, and that it investigates and addresses all the substantive issues.
  2. The landlord to review the lack of action following the referral of the case to its solicitor, and agree a clearer process for ASB issues that the legal department are unable to progress and take formal action for.