Birmingham City Council (202314631)

REPORT

COMPLAINT 202314631

Birmingham City Council

17 June 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 handling of the resident’s reports of antisocial behaviour (ASB).
2. The Ombudsman has also considered the landlord’s complaint handling.

Background

3. The resident is a secured tenant of the landlord. The resident is registered as having a disability. The landlord is a local authority. The resident has lived in the property since 8 March 2004. The resident’s property is attached to the property of her neighbour (neighbour A). Neighbour A is also a tenant of the landlord.
4. On 7 October 2021, The resident reported to the landlord that neighbour A was smoking cannabis, and the smell was emanating into the resident’s property. The resident stated that she had contacted the Police who had advised her to contact the landlord. In response, the landlord advised that the reported behaviour was criminal in nature so should be reported to the police, rather than the landlord. The landlord would only act if the police had confirmed the presence of drugs. The landlord also noted that the smell could be coming from outside of the property rather than from neighbour A.
5. The resident contacted the landlord on 19 July 2022 to report that the smell of cannabis had returned and was spreading throughout the property. The smell had stopped after the resident previously reported it but had come back. The smell was present on a handful of occasions rather than every day. The landlord called the resident to discuss their concerns and recommended that the resident contact the police if she smells cannabis again. The landlord agreed to visit neighbour A regarding the reports of a cannabis smell. The landlord’s notes show that it left a voicemail with neighbour A requesting a call back but this did not happen as the resident raised a new report of ASB.
6. On 2 November 2022, the resident contacted the landlord to report that the smell of cannabis was still emanating from neighbour A’s property. The landlord phoned the resident who requested that the landlord write to neighbour A, which the landlord did. Neighbour A contacted the landlord on receipt of the letter to advise they do not smoke cannabis but they have smelt it in the local area. Neighbour A agreed to take part in mediation with the resident to resolve the issue. Both parties took part in mediation in February 2023.
7. The resident made their first complaint on 11 May 2023. The resident reported that she could still smell cannabis from neighbour A’s property and that mediation has not stopped it. The landlord responded on 30 May 2023, the landlord apologised that the smell was still present. It advised it could not identify any evidence of cannabis use by neighbour A, but had written them a second advisory letter and would refer the parties to mediation again. The landlord also wrote to the police to ask if there was any action they could take.
8. The resident escalated her stage 2 complaint on 23rd July 2023 and on 15 September 2023. A mediation session between the parties took place on 13 July 2023 but the resident feels this was unsuccessful. The resident reported she was advised to knock on neighbour A’s door when she could smell cannabis which was hard to do for the resident has she has a physical disability and neighbour A does not answer the door. The resident asked what else the landlord could do.
9. The landlord responded on 6 October 2023. The landlord stated that it had visited the resident to discuss her concerns and a contractor would attend on 9 November 2023 to seal the plastering in the resident’s meter cupboard where the smell could be coming from. The landlord also stated that its Neighbourhood Officer would visit neighbour A unannounced to check for a cannabis smell or drug paraphernalia, and would take enforcement action if evidence was found. The landlord visited neighbour A and found no evidence of cannabis use. The landlord noted that the smell may come from the alleyway to the side and back of the property, rather than from neighbour A.
10. The resident referred the matter to this Service on 12 October 2023. The resident reported that the smell was still present and she did not feel the landlord had done enough. The resident confirmed that the landlord attended on 9 November 2023 to cover cracks and holes in her meter cupboard plastering which had mostly stopped the smell, the resident has also taped the cupboard shut as a further precaution.

Assessment and findings

Scope of investigation

11. It is evident that this situation was distressing for the resident. It is acknowledged that the resident does not believe that the landlord responded appropriately to her reports of ASB. The role of this Service is not to establish whether the ASB reported was occurring, or not. Our role is to establish whether the landlord’s response to the resident’s reports of ASB was in line with its legal and policy obligations. This investigation has considered whether its response was fair in all the circumstances of the case.
12. Although it is noted that there are historical ASB reports by the resident, this investigation has primarily focussed on the landlord’s handling of the resident’s recent reports from 2021 onwards that were considered during the landlord’s recent complaint responses.

Policies

13. The resident’s tenancy agreement states that the resident must not do anything which causes or is likely to cause nuisance to anyone in the local area, or do anything which interferes with the peace, comport, or convenience of other people living in the area. The tenancy agreement lists the use of the property for criminal or illegal purposes, including using illegal drugs, as an example of ASB. While the Ombudsman has not seen neighbour A’s tenancy agreement, it is reasonable to assume that the terms of neighbour A’s agreement will be similar, if not identical, to that of the resident’s.
14. The landlord’s ASB procedure categories ASB reports into 3 categories of seriousness. Matters relating to drug use falls into category B and have a timeframe of 5 working days for the landlord to contact the resident.
15. The ASB policy states that during an investigation, the complainant (the resident) will be interviewed and an action plan will be agreed. The action plan will be confirmed in writing kept up to date throughout the life of the investigation. When considering evidence, the landlord will use the civil standard of proof, which is “on the balance of probabilities”. If ASB is appropriately evidenced, the landlord must take steps to change the perpetrator’s behaviour.
16. The resident must be regularly updated and contact must be made on the conclusion of an investigation to discuss the outcome and agree the closure. The ASB procedure confirms that, on some occasions, an investigation concludes and it is unable to resolve the matter to the satisfaction of the resident. In those cases, a supervisor will review the complaint and can close it without the resident’s agreement if they are satisfied the investigation was thorough and there are no other options available.

The landlord’s handling of the resident’s reports of ASB

17. It is relevant for the Ombudsman to acknowledge at the outset that ASB cases involving allegations over an extended period, sometimes with little or no corroborating evidence, can be among the most difficult for a landlord to resolve. That difficulty is not the fault of any party, but it is important that the Ombudsman’s assessment of the landlord’s actions recognises this fact.
18. In line with its ASB policy, the landlord had an obligation to investigate reports of ASB and respond appropriately. The resident reported drug use from neighbour A, which would fall under the heading of ASB, as set out in its ASB procedure and the tenancy agreement.
19. When the resident reported ASB on 7 October 2021, she stated that there as a “strong smell of cannabis” coming from neighbour A’s property and it was affecting her day to day life “a lot”. The resident said that the smell was spreading throughout the property and may also be an issue for the property on the other side of neighbour A’s. The landlord advised the resident that this was not ASB and it did not deal with criminal matters. It said the resident should contact the police. The resident had told the landlord that she had already contacted the police who referred her to the landlord. The landlord said it could only address the matter under the tenancy agreement if the police confirmed the use of drugs in neighbour A’s property. There is no further evidence provided to suggest the landlord took further action.
20. This was not an appropriate response. Whilst the Ombudsman recognises that a lack of immediate evidence may have presented a challenge in investigating the ASB, the resident had advised the landlord of the impact the situation had on her and the landlord did not take any action to address the resident’s concerns. The resident had reported behaviour which fell within the definition of ASB in the tenancy agreement. The resident also provided information of a potential witness in neighbour A’s other neighbour but this was not followed up and no explanation was provided.
21. The resident is vulnerable due to her disability. It would have been reasonable for the landlord to have considered any reasonable adjustments required to its service and to have shown due regard to its duties set out in the Equality Act 2010. That it did not, is a failure.
22. The evidence provided suggests that the landlord failed to investigate the matter and did not follow its ASB policy. The resident was inconvenienced by the matter not being resolved sooner. This impacted the resident’s enjoyment of her home and caused distress. This was a missed opportunity from the landlord to take action to address the resident’s concerns and this amounts to a failure.
23. The resident contacted the landlord again on 19 July 2022 to report that she could smell cannabis, and that it was coming from neighbour A’s property. The resident reported that the smell was spreading throughout her property. The landlord responded by calling the resident on 21 July 2022 to discuss, the resident noted the smell had occurred on a handful of occasions over the few weeks prior. The landlord advised the resident that it would investigate the matter further, and would visit neighbour A regarding the resident’s concerns.
24. After speaking with the resident, it would have been reasonable for the landlord to have carried out a risk assessment and created an action plan to follow. This would have enabled the landlord to appropriately support the resident, manage her expectations, and provide clarity in seeking a resolution. It did not do this which was inappropriate.
25. The landlord called neighbour A and left a voicemail requesting a call back but this does not appear to have been followed up before the resident raised a further instance of ASB 3 months later. This timeframes does not demonstrate that the landlord was taking action or providing regular updates as per its policy.
26. The resident reported the smell of cannabis from neighbour A’s property again on 2 November 2022. When the landlord phoned the resident to discuss, the resident asked the landlord to send a letter to neighbour A, which it did. Neighbour A contacted the landlord on receipt of the letter to dispute that cannabis was being used in the property. The landlord followed up with the resident to inform her that neighbour A had received the letter and had agreed to mediate with the resident. The investigation was closed at this stage and the matter passed to the mediation service.
27. The landlord facilitated mediation between the parties on two occasions in December 2022 and July 2023. The resident reported that this did not resolve the issue.
28. The resident first complained on 11 May 2023. The resident reported that ASB had reoccurred and she was unhappy that she needed to keep reporting the same issue. The resident felt that the landlord had not done enough to stop the reported ASB. The landlord apologised to the resident that the smell was present but noted it did not have any evidence of cannabis use in neighbour A’s property.
29. Although it noted there was no evidence of ASB, the landlord sent an advisory letter to neighbour A and referred the parties for further mediation. This was a reasonable step to resolve the reported ASB. The landlord also asked the police to visit neighbour A, which they did in June 2023. No evidence of drug use was noted. 
30. The resident expressed her dissatisfaction with the outcome of the stage 1 complaint on 23 July 2023. The resident told the landlord that mediation had not worked and the smell is still present.
31. The resident contacted the landlord again on 15 September 2023, she explained that the smell was overpowering her property and that the landlord’s attempts to resolve the issue through mediation had not worked. The resident expressed frustration that she could not enjoy her property and felt that neighbour A had more rights than she did. The landlord acknowledged this as the resident’s stage 2 complaint. 
32. In response to the resident’s stage 2 complaint, the landlord attended to discuss the matter with the resident on 27 September 2023. It was noted that the smell could be seeping through cracks in the plaster work in the resident’s meter cupboard. The landlord reattended on 9th November 2023 to repair the cracks in the plaster. The resident has confirmed that this work has largely resolved the issue. There is still a slight gap in the plasterwork but the resident has not reported this to the landlord and has covered the meter cupboard door with tape as an extra precaution. Whilst this was an appropriate action from the landlord, it is a failing that it did not identify and carry out this work sooner. This meant the resident was inconvenienced by living with the reported ASB for longer than reasonable.
33. The landlord also conducted an unannounced visit to neighbour A’s property on 5 October 2023, it reported that there was no evidence of cannabis use or drug paraphernalia present. This was an appropriate action by the landlord.
34. Although the landlord felt there was no independent corroborated evidence of ASB, it took steps to help the resident and seek a resolution. The landlord also liaised with third parties such as the mediation service and the police to try to resolve the resident’s concerns. Whilst this demonstrates good practice, it did not appropriately risk assess or create an action plan. This meant that actions took too long and the resident’s expectations were not managed. The landlord also failed to show due regard to its duties set out in the Equality Act 2010.  
35. The resident had repeatedly asked the landlord to act and was met with no or vague responses. The resident was clearly distressed by the landlord’s failures to act appropriately. The resident noted that the reported ASB was impacting her enjoyment of her property and the stress caused was affecting her physical and mental health.
36. The landlord has not made an offer of compensation to the resident or apologised for its failure to follow its own policies. To acknowledge the impact the failure to act had on the resident, an apology and compensation of £200 has been ordered. This is in line with the Housing Ombudsman remedies guidance where a resident was negatively impacted by a failing by the landlord.

The landlord’s complaint handling

37. Landlords must have an effective complaint process to provide a good service to their residents. An effective complaint process means landlords can fix problems quickly, learn from their mistakes and build good relationships with residents. In this case, the landlord’s stage 1 complaint response was late, and it unnecessarily delayed escalating the resident’s complaint to stage 2.
38. The landlord’s complaint policy outlines that stage 1 complaints will be acknowledged within 2 workings days and responded to within 10 working days. The policy also outlines that stage 2 complaints will be responded to within 20 working days. Where the landlord is not able to meet these timeframes, the policy states it will contact the resident to agree a new timescale for response.
39. The Code defines a complaint as ‘an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the landlord, its own staff, or those acting on its behalf, affecting a resident or group of residents.’ The word ‘complaint’ does not have to be used.
40. The landlord responded to the stage 1 complaint in 12 working days which is not within the 10 working days timeframe in its complaint handling policy. Failure to adhere to timeframes for responses is a failure of service. This Service acknowledges that on occasions there will be circumstances that mean a complaint response cannot be provided by the initial time given by the landlord. In these cases, it would be reasonable to expect that a landlord would contact the resident to explain in detail the reasons for the delay. The landlord is also expected to provide a new timeframe whereby the resident would expect to receive a response. However, the landlord did not provide any updates nor reasoning for why it had exceeded the promised timeframe.
41. The resident first stated she was unhappy with the resulting actions from the stage 1 response on 23 July 2023 when she stated that mediation had not solved the reported ASB and the smell was still present. The landlord did not recognise this as an escalation which meant that the resident had to wait longer than necessary for her complaint to be escalated and the final response was delayed. This demonstrates a failure by the landlord. The resident was inconvenienced by having to raise a further complaint to have the matter escalated.
42. The landlord did recognise the resident’s further escalation request on 15 September 2023. It responded to this within the 20 working days timeframe for stage 2 responses in its complaint handling policy. This represents good practice.
43. The landlord did not follow its policy by in relation to the stage 1 responses because it did not provide a response on time, or let the resident know there would be a delay or when a response would be provided. When the resident expressed dissatisfaction with the stage 1 response, the landlord did not acknowledge the complaint or act on it in a timely manner. This meant the resident was delayed in receiving her final response and was delayed in being able to escalate her complaint to this service. It also meant that the repair to the resident’s meter cupboard was not completed as early as it could have been, as a result the resident had to live with the reported smells for a longer period. These failures amount to maladministration.
44. The landlord has not offered compensation for the delay in providing its stage 1 response, and has not acknowledged its failure to recognise the resident’s stage 2 escalation.
45. The Ombudsman considers that £100 compensation is reasonable to redress the inconvenience caused to the resident by the delay in having her stage 1 complaint responded to and the delay in acknowledging the stage 2 escalation request.

Determination

46. In accordance with paragraph 52 of the Scheme, there was maladministration by the landlord in its handling of the resident’s report of ASB.
47. In accordance with paragraph 52 of the Scheme, there was maladministration by the landlord in its complaint handling.

Orders and recommendations

Orders

48. The landlord must apologise to the resident, in writing, for the maladministration noted in this determination. A copy should also be provided to the Ombudsman within 4 weeks of this determination.
49. Within 4 weeks of this determination, the landlord is ordered to pay the resident:
    1. £200 in recognition of the failure to act appropriately on the resident’s report of ASB.
    2. £100 compensation in recognition of the complaint handling failures identified.
50. Within 6 weeks of the date of the determination the landlord should carry out a review of the case and identify what it would do differently to prevent a recurrence. This should include how it will respond to complaints about ASB. A copy of the outcome of the review should be provided to the resident and the Ombudsman, also within 6 weeks.

Recommendations

51. The Ombudsman recommends that the landlord contact the resident to arrange for the remaining gaps in the meter cupboard to be filled.