Saxon Weald (202207788)

REPORT

COMPLAINT 202207788

Saxon Weald

28 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 antisocial behaviour (ASB) reports about his neighbours.

Background

2. The resident is a tenant of the landlord, who resides in a first-floor flat. The building type is a block of flats, and all tenants share a communal garden area.
3. On 17 April 2022 the resident reported that cigarette and cannabis smells were entering his flat through his living room windows, which overlook the communal garden area. He said he could not open his living room windows because of the smells. He also explained his health concerns in relation to being exposed to second-hand smoke.
4. The landlord responded on 21 April 2022, requesting further details about the time, dates, and locations of the smoking and drug use.
5. The resident reported that the smell of tobacco and cannabis had reoccurred on 22 May 2022 but did not provide further details. The landlord replied on 26 May 2022, repeating its request for details. It explained that it was limited to what actions it could take without further evidence. The resident raised concerns to the landlord on 31 May 2022 that it had ignored his reports and that no one seemed to believe him regarding the use of cannabis.
6. The landlord replied the same day, stating that it was not ignoring his claims but rather had no evidence to take further action. It wrote to all residents on 7 June 2022, reminding them not to bring illegal drugs of any kind onto the property. The landlord further highlighted on 11 August 2022 to the resident that smoking tobacco in the communal garden is allowed under the tenancy conditions. It said that without actual details, it was unable to take any tenancy or further actions.
7. As part of its ASB investigation, the landlord contacted the resident on 16 August 2022, stating that it had spoken to his neighbours. The neighbours had denied using cannabis or smoking below his windows.
8. After contact from the resident at the end of July 2022 this Service asked the landlord to open a complaint based on his dissatisfaction with its handling of his reports.
9. The landlord issued its stage one complaint response and ASB outcome on 1 September 2022. It said that as there appeared to be a recent reduction in the frequency of smells entering the resident’s flat (although there is no records of when this took place), the actions it was taking were having a positive effect. It agreed to continue to monitor the situation and carry out unannounced visits but closed the ASB case and the resident’s complaint (with his permission). It apologised that the resident felt he was not getting the support he required and agreed that its attempts at communication could have been better. It added his contact number to his ASB file should further issues arise.
10. After further correspondence, the landlord issued its final complaint response on 5 October 2022. It did not uphold the resident’s complaint, adding that it offered mediation through an independent party between the resident and his neighbours (though it is not apparent when this was offered). It also offered to speak to his neighbours again and issue another reminder to the whole block regarding the use of cannabis on-site. The resident declined these actions, believing they would not help.
11. The resident remained dissatisfied and brought his complaint to the Ombudsman. He felt that none of the landlord’s actions had not helped the situation. He also raised concerns about exposure to second-hand tobacco smoke and cannabis.

Assessment and findings

Investigation scope

12. In his communications to this Service the resident attributed a decline in his health to being unable to open the windows and the exposure to second-hand tobacco and cannabis. Whilst the resident’s concerns are noted, the Ombudsman is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Such concerns would be a matter of personal injury, and more appropriately pursued legally through the courts.

Policies and procedures

13. The landlord’s ASB policy states that smoking outside in communal areas is not considered ASB and is not a tenancy breach. It accepts that whilst this may cause discomfort or some annoyance, it encourages residents to work through any concerns they have calmly. Where agreement cannot be made, it states that the landlord will advise of what actions it can take, encouraging residents to keep a record of the times, dates, and events of any ASB.
14. In accordance with the resident’s tenancy agreement, no illegal drugs of any kind may be brought onto the property by any person. It states that persistent drug use, drug dealing, or production are considered ASB and that this will result in further action by the landlord.

Handling of the ASB reports

15. In response to the resident’s reports the landlord asked for details about times and places, and possible perpetrators. The nature of ASB means that it often falls to the alleged victims to provide basic information in support of their reports. Accordingly, the landlord’s request was an appropriate first step, because without such information a landlord could not meaningfully progress far with an investigation.
16. The landlord explained that the residents’ tenancies allowed smoking in the communal garden. Because of that, in the absence of further information, the landlord would not usually be expected or obliged to investigate the reports further, even in the resident’s circumstances of smoke entering his home. The resident explained that neighbours were smoking directly under his windows, but this investigation has not seen any evidence provided to the landlord to support that allegation. The landlord’s response was reasonable in line with its policy and the evidence it had at hand.
17. The use of drugs is clearly against the tenancy agreements, and it was appropriate that the landlord sought further basic details from the resident about what he had witnessed. The resident explained that he did not wish to “spy” on his neighbours. The resident’s concerns are understandable, but without providing even basic details the landlord was left with limited options. An allegation, on its own, would not be sufficient for a landlord to take formal action. To that end, the landlord discussed the allegations with the neighbours, wrote to all tenants reminding them of their tenancy obligations in regard to drugs and illegal substances, undertook to make unannounced visits to monitor the situation, and offered to arrange mediation These were reasonable and proportionate responses to the resident’s reports, in line with good practice and the landlord’s ASB policy.
18. In the face of the resident’s ongoing dissatisfaction with its handling of his reports, the landlord suggested he use the community trigger process (an initiative coordinated by the local authority between relevant organisations (such as the police, or a landlord) to consider their handling of ASB). This was also a reasonable action, because the community trigger assessment could either identify further steps the landlord could take, or offer reassurance to the resident that all that could be done had been done. There is no evidence of this option being utilised.
19. Overall, the landlord’s response to and handling of the resident’s reports were in line with good practice for investigating ASB reports, and with its policies. Nothing in the information provided for this investigation suggests the landlord missed any relevant evidence, or that its explanations and decisions were unsound.
20. It should be made clear that there are generally no known rules or regulations that oblige a landlord to take action in regard to cigarette smoke entering a person’s home, especially when the source of the smoke is other people smoking in their own homes, or in external communal areas (such as a garden). The primary exception to this would be if there are clear repair issues allowing the smoke to enter the property.

Determination

21. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of the complaint.