Octavia Housing (202105707)

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REPORT

COMPLAINT 202105707

Octavia Housing

29 June 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

  1. The complaint is about the landlord’s handling of the resident’s reports of antisocial behaviour (ASB).

Background

  1. The resident is a secure tenant of a maisonette owned by the landlord. The resident has health conditions, which the landlord is aware of.
  2. The resident was reporting various problems with her neighbours to her landlord from as early as 2015. Reports of issues steadily increased as the years went on, ranging from banging doors to an intrusive smell of drugs in the resident’s flat.
  3. On 8 June 2021, the resident contacted this Service to make a complaint about her landlord. She stated that barking dogs owned by two neighbours were causing a nuisance. She reported that a different neighbour was smoking drugs, and the fumes meant she was unable to have her windows open due to the smell entering her home. The resident stated she had made several complaints to the police and that she called the landlord regularly to provide it with police CAD numbers. The resident said she has asthma and needs to move out of the property due to the ASB. This Service contacted the landlord on the same day and made it aware of the resident’s complaint. The landlord was asked to provide a stage one complaint response.
  4. On 7 July 2021, the landlord issued its stage one complaint response. It apologised that the resident had to approach the Ombudsman in order for the landlord to register a complaint from her, and for the delay in issuing the stage one response. It offered £30 compensation to remedy this. It stated the delay was due to investigations it had made in order to inform its response. It outlined the action it had taken in response to the issues in the resident’s complaint. It had not been able to get any further evidence to support the resident’s allegations of ASB and therefore would be unable to uphold her complaint. It offered to write to the neighbours with the dogs to tell them not to allow the dogs to bark loudly and cause a disturbance. The landlord also confirmed it had spoken with the police. However, despite police investigation, there was insufficient evidence to take action regarding the neighbour suspected of smoking drugs. The caretaker for the building had not witnessed any of the issues. The landlord invited the resident to call and discuss a move with the appropriate team. It offered to purchase air purifiers to help the resident reduce the impact of the smell. It advised the resident to contact it by 26 July 2021 if she wished to escalate her complaint.
  5. The resident wrote to the landlord on 12 July 2021. While the letter did not explicitly ask for a complaint escalation, “stage 2” had been written on the pages. The letter gave an update on the situation with the dogs, including that one of them had now gone. She expressed how the smoke from her neighbour’s drug smoking occurred day and night and left her feeling dizzy and sick. She said that her experience was that the landlord did not take complaints seriously and she would like to take up the possibility of being moved to a bungalow or complete a mutual exchange.
  6. On 23 September 2021, this Service contacted the landlord again to request that it escalated the resident’s complaint, as she had not received a response to her letter of 12 July 2021. The landlord sent two separate letters to the resident on 28 September 2021. The first contained details of a counter-allegation from the resident’s neighbour about her banging on his windows at various times. The second responded directly to the resident’s letter of 12 July 2021. It offered an update on the complaint issues and offered to buy the resident an air-purifier. It refused to escalate the resident’s complaint as it felt the issues were “either new or reoccurring”.
  7. On 11 January 2022, the police issued the resident’s neighbour with a community protection warning regarding the drug smoking. The landlord followed this up on 25 February 2022 with a warning letter that reminded the neighbour of his obligations as a tenant. It warned legal action may follow if the behaviour continued.
  8. Following further correspondence in November 2021, this Service contacted the landlord on 15 March 2022 and requested it issue either a stage two response to the resident’s complaint or a letter giving detailed reasoning for not doing so.
  9. On 22 April 2022, the landlord issued its stage two complaint response. It summarised the issues and the actions it had taken. It assured the resident that it was doing everything it can and working with the police. It acknowledged its failings with handling the resident’s complaint. It offered three apologies. The first was for the time it had taken to handle the resident’s complaint. The second apology was for not being more proactive with providing the resident with information about her rehousing options. The third apology was for failing to seek clarity from the resident about her letter dated 12 July 2021 and for not giving its reasons for its original refusal to escalate her complaint. It offered £50 compensation for each of the three apologies, with an additional £50 as a goodwill gesture, bring the total compensation offer to £200.
  10. On 15 July 2022, a community protection notice was issued to the resident’s neighbour by the police. The landlord followed this up on 3 August 2022 with a stage two tenancy breach warning letter also being issued to the neighbour. The resident was kept updated with the actions taken.

Assessment and findings

Scope of investigation

  1. The resident has been reporting ASB to the landlord since 2015. In accordance with paragraph 42(c) of the Housing Ombudsman scheme, this investigation will focus on issues and events ongoing in the six months prior to the resident making a formal complaint to the landlord.
  2. It is outside the Ombudsman’s role to make a finding on whether ASB was happening. Its role is to assess the landlord’s actions upon receiving reports of ASB, against its legal obligations and published policies.

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

  1. The landlord’s antisocial behaviour policy sets out its procedures for dealing with reports of ASB. According to the policy, the first step the landlord will take upon receiving a report of ASB is to arrange a visit with the resident making the report. How urgently it does this depends on how the landlord categorises the behaviour being reported. For example, behaviour in category A will mean the landlord will visit the affected resident within 24 hours, whereas low-level neighbour disputes will mean the landlord will visit within 10 working days. It is not clear how urgently the landlord should have arranged this visit with the resident as it does not appear to have categorised the reports. If it did categorise the reports, this Service has not seen evidence of this.
  2. The resident has stated to this Service that she did not receive a visit from the landlord until she was visited by a senior figure in the organisation in relation to her complaint. The landlord’s records do show times when a visit was suggested, but the resident’s ill health understandably meant this was not always appropriate for her. While the landlord should be demonstrating via its record keeping that it is working in line with its policies, it is unlikely that an initial visit to the resident would have changed the course of events. The landlord’s records demonstrate that the landlord was engaging with the resident frequently, taking her concerns seriously and working closely with the police to try and resolve the neighbour’s behaviour.
  3. This Service does not make findings on whether the ASB happened, it assesses the landlord’s response to reports of ASB against its legal obligations and internal policies. In order for a landlord to take formal legal action against tenants causing ASB, such as with an injunction or an eviction, the landlord would be required to go to court. Except in the most extreme circumstances, the landlord would be expected to show the court that it had attempted informal measures such as tenancy warnings and/or acceptable behaviour contracts before pursuing legal actions. The landlord would also be required by the court to show evidence that the ASB had been going on for a long time and was serious in nature and its effects.
  4.  It is unfortunate that many months and years had passed before the landlord had the evidence it needed to start to take formal action against the main offending neighbour, but this Service is of the opinion that this was outside of the landlord’s control. The landlord has demonstrated that it was responsive to the resident and her concerns. At times, the resident was contacting the landlord on a daily basis to make reports and provide CAD numbers. Internally, there is evidence that departments worked closely with each other and with the police throughout. The landlord made attempts to gather evidence, for example, via the block’s caretaker. It wrote to the block’s residents reminding them that smoking drugs is against the law and the terms of its tenancies. Once the appropriate evidence had been gathered, it acted to progress action against the neighbour smoking drugs.
  5. Whilst the main focus of the resident’s complaint was around the offensive smell in her flat as a result of her neighbour smoking drugs, the resident did also complain about two neighbours’ dogs. This was at least partially resolved by one of the dogs leaving the block, as the resident explained in her letter of 12 July 2021. The landlord explained to the resident that it had not provided reports of multiple and significant occurrences of nuisance, only isolated events. As an normal everyday noise, dog barking has to meet certain criteria in order to be deemed a nuisance. The barking would have to be very loud, frequent and last for a significant amount of time. It may also take place during unsociable hours.  The reports the resident provided did not show this, therefore, the landlord had responded reasonably to the reports it had received.
  6. There were issues with the landlord’s complaint handling and the resident’s complaint was only progressed through the landlord’s internal complaints procedure following interventions from the Ombudsman. However, this Service is satisfied that the stage two complaint response demonstrated that the landlord understood its failures and apologised. An apology was an appropriate response to this. The landlord should consider taking steps to ensure that staff are confident in understanding when to register and escalate complaints and how to appropriately respond to them. It is difficult to understand when a complaint can be escalated if an escalation is denied because issues are “new or reoccurring”.
  7. The landlord made a total offer of £200 compensation to remedy its failures with handling the resident’s complaint. The delays with the complaint handling did not have a material effect on the outcome, nor were there similar delays with handling the ASB reports. This is an appropriate remedy in line with the Ombudsman’s remedies guidance, which suggests that awards of this amount may suitably remedy instances of service failure resulting in some impact on the resident, but where there has been no significant effect on the outcome of the complaint.
  8. This Service will not order additional compensation to be paid for the handling of the resident’s reports of ASB. This Service understands that the resident feels confused about why her neighbour’s activities have not been stopped. She feels that the smell in her flat has caused her significant health issues. It would be difficult for the landlord to identify which property the smoke was coming from due to smoke travelling and there being multiple properties in the building. Without clear proof that the particular neighbour was responsible, the landlord could not take action against them. Drug use is a criminal offence and criminal offences are best suited for the police to investigate rather than the landlord as the police have different powers to take action in this area. The landlord would be expected to co-operate with any police investigation and the evidence shows that there was good co-operation in this case with the landlord sharing the information it had with the police. If the police prosecuted a tenant of the landlord for a criminal offence, the landlord could use this evidence to pursue tenancy-related legal action against that tenant for ASB. The landlord did take specific action following the two occasions that the police issued the neighbour with a community protection warning or notice. The police attended the property but were not able to smell the cannabis or identify the property it came from. It would be difficult for the landlord to act if the police were unable to find any evidence when they attended. The landlord did smell cannabis during another visit and passed this information to the police, but the police and landlord were unable to find enough proof that the neighbour was responsible and therefore could not reasonably take action against them. When the police and landlord were able to gather enough evidence (three witnesses to the cannabis smoking), the landlord took action against the neighbour for a breach of their tenancy.
  9. A recurring theme throughout the complaint is the resident’s wish to move home if the ASB cannot be stopped. This would certainly represent an alternative solution to the issue. The resident has been invited to speak with the appropriate team at the landlord. Advising the resident of her general housing options is a standard response that anyone contacting the landlord for that reason could expect. However, within the context of the ASB and the resident’s health issues, the landlord could consider what actions it could take to improve the resident’s rehousing options. The resident has stated she would like to move to other areas of the country. This is likely to be difficult if the resident chooses areas where she does not meet local connection criteria for housing. If the resident is prepared to compromise on some of her rehousing requirements in order to secure a move away from the ASB, there are potentially actions the landlord could take to improve her chances of rehousing. These might include reviewing the resident’s level of priority on its own internal transfer list in view of her medical issuesor working with the local authority on any housing register application.
  10. The landlord offered to buy the resident an air purifier, to help reduce the effects of the smell in her home until a longer-term solution is found. This was a reasonable offer for the landlord to make and this Service encourages the landlord and resident to pursue this option further, if not already done so.

Determination

  1. In accordance with paragraph 53 of the Housing Ombudsman Scheme, the landlord has made an offer of redress which, in the Ombudsman’s opinion, satisfactorily resolves the complaint about the landlord’s handling of the resident’s reports of antisocial behaviour.

Recommendations

  1. The above determination is made on the basis that the offer of £200 compensation is, or has been, paid directly to the resident’s bank account. The landlord should do this within four weeks of the date of this report if it hasn’t done so already.
  2. The landlord should consider what actions it can take to actively assist in the rehousing of the resident as well as providing general advice and information on her rehousing options. If there is no reasonable prospect of the ASB being resolved, the landlord should consider actively working with the resident to progress any internal rehousing application with a review of her level of priority and, if applicable, with the local authority’s housing register.
  3. It is recommended that the landlord provide refresher training to staff to ensure that they are working within the landlord’s published policies, including its ASB and complaint handling policies. It should ensure this is demonstrated via a clear audit trail on its records to demonstrate that it is acting in line with these policies.
  4. The landlord should contact the resident regarding its offer of buying an air purifier, to help with reducing the impact of the smell, if this has not already been arranged.