Shepherds Bush Housing Association Limited (202305835)

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REPORT

COMPLAINT 202305835

Shepherds Bush Housing Association Limited

27 November 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

The complaint concerns the landlord’s response to the resident’s reports of strong smells in her flat.

Background

The resident is an assured tenant. The property is a 2-bedroom first floor flat within a house. The tenancy started in May 1993.
The resident has health conditions. The landlord has not confirmed if it has recorded these on its system.
The landlord is a housing association. The downstairs’ flat is occupied by the landlord’s tenant (the resident’s neighbour).
Between April 2023 and the end of January 2024, the resident made dozens of antisocial behaviour (ASB) reports regarding her neighbour namely that he was smoking drugs, the smell from which permeated her flat. The resident told the landlord this smell was very strong and that it was affecting her health. She said it caused difficulties with her breathing and woke her up at night.
The landlord contacted the neighbour and told him that the smoking of illegal substances at the property was a breach of the tenancy. It sent him a tenancy warning letter in July 2023 reiterating this. The resident followed the landlord’s advice and contacted the police who made attempts to speak to the neighbour, initially without success. The police contacted the landlord in August 2023 after which the landlord remained in contact with the police in regards to taking appropriate action to address the issue.
The landlord’s surveyor also attended the resident’s property in September 2023 to check for any structural defects or cracks that may be allowing smoke to seep through to her flat. It then arranged for the hairline cracks identified to be filled. In response to the resident’s further reports, the landlord told the resident on 30 January 2023 that while it had not inspected the neighbour’s property, it had spoken with the neighbour who told it that he had stopped smoking. The landlord told the resident that if she believed drug activity was still coming from her neighbour’s flat, she should continue to report this to the police. It said if the police obtained necessary evidence to take enforcement action, it would also take action against the tenancy.
On 25 February 2024, the resident raised a formal complaint regarding the landlord’s handling of her reports of her neighbour smoking drugs and the impact of the smoke coming into her flat. She stated:
1. The landlord had not inspected the neighbour’s flat. It was no use visiting her home without also inspecting the neighbour’s flat to survey if there were any cracks or other disrepair issues in his home which was causing the smoke to rise into her home. She was perplexed about why the landlord was not investigating this.
2. She could not visit the landlord’s offices as requested because she was unwell. She breathed in toxic chemicals every night. She could not prove her case by visiting the landlord.
3. She did not want to move properties as suggested by the landlord, she wanted the landlord to resolve the issue.
4. She had previously discussed the smell of drugs with her neighbour 2 years ago when he moved in, and he told her he was a drug addict and that there were cracks in his home, and it was not in a good condition.
5. She requested that the landlord took action to address the issue.
The landlord called the resident on 29 February 2024 to discuss her complaint and on 8 March 2024 it provided a stage 1 complaint response. This stated:
1. During its visit to the resident’s property on 13 November 2023 it could not detect the smell of cannabis.
2. On 17 January 2024, it discussed her allegations with the neighbour “at great length” and made clear standards it expected from all residents.
3. Its housing services manager (HSM) had been in ongoing contact with the police who advised while during their patrol of the resident’s close they noticed the smell of cannabis; it was unclear where this was coming from and as such it could not take further action against the neighbour. It would welcome any new reports and evidence.
4. Internal repairs had started at her neighbour’s home, and these would be monitored to ensure they were completed to observe the smoke coming into her bedroom.
5. As the resident’s reports indicate that her neighbour’s smoking mostly happened at night time, outside of working hours, she should continue to report this to the police and the local authority’s environmental health team. It provided contact details.
6. She should continue providing details of incidents reported to police who it would work with to build a case. Also complete nuisance diary sheets attached which would be monitored regularly.
7. Her feedback about its management of her case had been invaluable and it had learned lessons and was exploring new ways of working within its ASB team.
The resident continued to regularly report smells from the neighbour’s drug use coming into her flat.
On 11 April 2024 the resident raised a stage 2 complaint with the landlord. This stated:
1. She first made the landlord aware of her neighbour’s drug use last summer when she had to call an ambulance due to the impact of fumes from the neighbour’s flat on her health. She had to call an ambulance again in December 2023 and had contacted the police on several occasions.
2. While the police had been helpful, they had not been able to enter the neighbour’s property. They told her they needed the cooperation of the landlord to do so. She believed that they were not receiving that cooperation.
3. She understood the landlord may be sceptical of how fumes from one property can enter another with such a powerful effect however there were outstanding disrepair issues within her home that were exacerbating the situation and made breathing more difficult.
4. She would like her neighbour’s property to be inspected for disrepair and then renovated along with her own as this could be the cause of the fumes in her property. If this did not cure the problem, she would like her neighbour to be rehoused.
On 9 May 2024 the landlord provided its stage 2 final response. This stated:
1. Its records show it had completed a thorough investigation of her concerns and it could see it was taking the appropriate tenancy management action.
2. Its housing team continue to work with her and the police to try to address the issues she had raised about her neighbour. It would take reasonable action against residents where the evidence confirmed that they were smoking illegal substances in their home.
3. As much of her neighbour’s smoking activity took place outside its office hours, the resident should follow the advice given at stage 1 in terms of reporting further incidents.
4. Its disrepair team was in the process of arranging work to her home including looking into whether there were any access points for smoke to get in.
5. It was in the process of getting her neighbour’s property surveyed so that it could deal with any repairs and ensure that there was an adequate seal between the 2 properties to prevent any transference of smells.
6. It would like to refer her to get some support via social services. It asked her to let it know if she gave consent.

Post the landlord’s final response

The landlord visited the neighbour on 29 May 2024 and found no evidence of drug-taking during the inspection.
The landlord raised the resident’s case with the community multi-agency risk assessment conference (CMARAC) and a meeting took place in July 2024. This was attended by the landlord, the police and the local council. Action points were for the police and landlord to jointly inspect the neighbour’s property and for the landlord to contact the resident’s GP to request they review the impact of the situation on the resident’s health, which it did.
Following the joint inspection of the neighbour’s property on 23 July 2024, the police confirmed they were closing the case and the landlord told the resident it was taking no action against the neighbour.

Assessment and findings

The scope of this investigation

In her communications to the landlord and to this Service, the resident said the issues experienced had impacted her mental and physical health and she provided medical evidence to support this.
It is not the role of the Ombudsman to investigate if there was a causal link between reports of health issues or a deterioration in the resident’s health due to the actions of the landlord. The resident may wish to seek legal advice about this, as a personal injury claim may be a more appropriate way of dealing with this aspect of the complaint. As this claim is more appropriately dealt with by a court or other procedure, this element will not be investigated. However, consideration has been given to whether the landlord appropriately took into account the resident’s vulnerabilities while responding to her ASB reports.
Furthermore, in her stage 2 complaint the resident said that there were disrepair issues within the property that she believed were exacerbating the smells from her neighbour’s drug use. It is evident that the resident raised a disrepair claim with the landlord in November 2022 following which the landlord undertook a number of repairs. However, the resident has not brought this complaint to the Ombudsman, therefore we have not considered the landlord’s handling of repairs raised in her disrepair claim. Consideration however has been given to repairs raised in the context of the resident’s complaint investigated concerning the smell from her neighbour’s drug use entering her home.

The landlord’s handling of the resident’s reports of strong smells in her flat

The resident’s ASB reports concerned strong smells coming into her flat which she believed was from her downstairs’ neighbour’s drug use. The landlord’s ASB policy makes clear it will investigate allegations of ASB where they relate to reports of class A drug use where neighbours are affected and class C drug use and associated smells. As such, the landlord was obliged to investigate the resident’s reports particularly as she told the landlord that the strong smells were impacting her health.
It is evident that the landlord took steps to investigate the resident’s reports and address the situation in line with its ASB policy. This included working with the police, challenging the neighbour regarding his behaviour, carrying out unannounced visits to the neighbour’s property as well as patrolling the resident’s neighbourhood. However, there is no evidence to suggest the landlord carried out a harm based risk assessment. The landlord was aware of the resident’s vulnerabilities and therefore it would have been appropriate for the landlord to assess the impact of the situation on her resident at the outset. While it did ask the resident if she needed support at a later stage (considered below), the lack of any risk assessment completed is a failing. An appropriate recommendation has been included below for the landlord to review its ASB policy and procedure to ensure it includes a harm based risk assessment.
This Service acknowledges that the action taken by the landlord has not led to a resolution of the resident’s allegations. The resident recently told us that she continues to report the same issue. While we recognise the significant distress the situation has caused the resident, the landlord has demonstrated that for the main, its response to her reports was proportionate and line with its policy.
The landlord ultimately told the resident it did not have sufficient evidence to take enforcement action against the neighbour. This Service considers that the landlord’s decision here was appropriate and in line with the conclusion reached by the police. Nonetheless, this Service is mindful that the landlord’s ASB policy states it aims to balance enforcement action to resolve ASB with intervention with prevention. In the resident’s case, we found there was scope for the landlord to explore other ways of preventing the ASB such as the use of an acceptable behaviour contract (ABC) or mediation which it did not properly do.
On receiving the resident’s initial reports in April 2023, the landlord opened an ASB case and called and emailed the neighbour to challenge him regarding the resident’s allegations. Over the next 3 months, the landlord made attempts to inspect the neighbour’s property on 3 occasions, but he was not at home. On 26 July 2023, it sent the neighbour a tenancy warning letter reminding him that smoking and taking illegal drugs in its property was a breach of the terms of the agreement. This letter asked the neighbour to stop smoking illegal drugs in the property. The landlord’s action taken here was appropriate. However, we would also expect the landlord, at the start of its investigation, to complete an action plan with the resident to clarify the actions it intended to take to address her reports and give likely timescales. There is no evidence to show it did. Had it done so, this may have better managed the resident’s expectations regarding its handling of the issue.
Over the subsequent 6 months the landlord maintained regular communication with the police, made further attempts to speak to the neighbour by knocking on his door and made regular visits to patrol the resident’s immediate area. These actions were reasonable and in line with the landlord’s ASB policy.
While its attempts to inspect the neighbour’s property were unsuccessful, the landlord’s internal notes show its housing team sniffed “through the letterbox” when it found a very faint smell of cannabis but “nothing alarming”. On at least one occasion the landlord was patrolling the area, it noticed the smell of cannabis but it could not identify where exactly this was coming from. The landlord’s internal communications show that other residents had reported the same issue from other properties within the area potentially indicating a wider issue. The landlord raised this with the police which was appropriate in the circumstances.
On occasions the landlord’s housing team visited the resident’s property including on 13 November 2023 and March 2024, they reported they were unable to smell the strong odours complained of. The landlord’s housing team also asked contractors who were visiting the resident’s property to report back any smells. There is no evidence to suggest they did.
During this timeframe the police told the landlord they had visited the area but considered it would not be proportionate in the circumstances to apply for a search warrant in relation to the neighbour’s home for the purpose of evidence-gathering. The landlord explained this in its communication to the resident dated 30 January 2024 but said they had issued leaflets in the area advising against the behaviour complained about. At the same time the landlord told her that it was unable to take tenancy enforcement action due to the lack of evidence. It was important to manage the resident’s expectations regarding the feasibility of legal action in her case therefore the landlord acted reasonably in this regard.
The landlord also told the resident she should continue to complete nuisance diary sheets and make reports to the police who it would work with to build a case. The landlord reiterated this in its stage 1 response. This was appropriate and in accordance with its ASB policy which makes clear it will only take action to evict a perpetrator where the evidence is sufficient and robust enough for a successful possession action.
It is acknowledged that the resident continued to complete dairy sheets and sent photos of the neighbour smoking outside of his window. However, following further inspections of the neighbour’s property post its final response, the landlord told the resident it was unable to take tenancy enforcement action against the neighbour due to insufficient evidence to justify this. While this Service is unable to investigate this timeframe, it is clear this was in line with the police conclusion that they had conducted all reasonable lines of enquiry but there was no evidence to substantiate any allegations of drug smoking/taking against the neighbour.
Therefore, while we do not consider the landlord’s response unreasonable, as mentioned above, the landlord could have taken further steps to get the neighbour to modify his behaviour. For example, it could have asked him to sign an ABC. This is in accordance with its ASB policy which requires the landlord to consider such interventions to address ASB. There is no evidence of the landlord considering this measure. Also, there is no evidence of it progressing mediation between the parties. This is something the resident said she was open to when asked by the landlord. Given the high number of reports from the resident as well as her vulnerabilities, we would expect to see evidence that shows the landlord explored all non-legal routes available to it. There is no evidence that it did, therefore, this was a failing by the landlord.
The resident also raised concern that gaps and cracks in the building were enabling smells to reach her property from the flat below. It was appropriate that in addition to challenging the neighbour about his behaviour, the landlord also considered if there were any disrepair issues contributing to smells transferring from the neighbour’s downstairs flat to the resident’s. It is evident that early on the landlord raised a work order to fill in cracks it identified in the resident’s property which it described as “hairline”. This work was completed in September 2023. By checking and undertaking repairs identified to cracks in the resident’s home, the landlord acted appropriately.
However, due to the resident’s ongoing reports it was reasonable to expect the landlord to also inspect the neighbour’s property for any disrepair. The evidence suggests that the landlord experienced some difficulties in gaining access to the neighbour’s property to enable the required checks. However, in its final response the landlord said it was in the process of getting her neighbour’s property surveyed so that it could deal with any repairs and ensure that there was an adequate seal between the 2 properties to prevent any transference of smells. This was appropriate and in line with recommendations made by an independent surveyor being used by the landlord in response to the resident’s disrepair claim. However, the tenancy agreement requires residents to allow access with 24 hours’ notice. Therefore, it is reasonable to expect the landlord to have taken steps to ensure access sooner. Furthermore, it is unclear from the available evidence if the landlord completed the promised survey or if any repairs were found to be needed. As such appropriate orders have been included below.
It is evident that following its final response, the landlord raised the resident’s concerns about ASB with CMARAC. It also followed the recommendation from this meeting and contacted the resident’s GP to request they review the impact of the situation on the resident’s mental health. This Service understands the resident was unhappy about this and its request to refer her to support agencies. However, this Service is satisfied the landlord was acting out of genuine concern regarding the impact of the ongoing situation on the resident’s wellbeing. As such it did not act inappropriately in the circumstances. It is noted that during the timeframe investigated, the landlord also asked the resident if she would like to transfer to another property. While the resident declined the landlord’s offer, again it was appropriate for the landlord to check with the resident in case this was an option it could explore with her.
In summary, on the whole the landlord’s response to the resident’s reports of strong smells in her flat was reasonable and proportionate. However, in the circumstances, the lack of any risk assessment carried out by the landlord was a failing. Also, it would have been appropriate to progress mediation when requested by the resident and consider using an ABC with the neighbour. By not taking these steps, it missed opportunities that may have improved the situation for the resident. This is indicative of service failure by the landlord in its response to the resident’s reports of strong smells in her flat.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its response to the resident’s reports of strong smells in her flat.

Orders and Recommendations

Orders

The Ombudsman orders that the landlord within 4 weeks:
1. Provide an apology to the resident for the failings identified in this investigation.
2. Pay the resident £100 to compensate for distress, inconvenience, time and trouble caused by failings in its handling of her reports.
3. Provide this Service with a copy of the survey of the neighbour’s property or if this has not yet been carried out, arrange for this to be completed.
4. Provide this Service with evidence of its checks into whether there is adequate seal between the resident’s and her neighbour’s property. If this work has not yet been carried out, arrange for this to be completed.
5. Follow up on its offer of mediation which the resident expressed a willingness to do and consider asking the neighbour to agree to an ABC in the event of further reports from the resident.
6. Provide this Service with evidence of compliance with the above orders.

Recommendations

Review its ASB policy and procedure to ensure it includes a harm based risk assessment and an action plan.
Investigate any new reports of ASB.
Contact the resident to ascertain if it has her health conditions correctly recorded on its system.