London Borough of Hackney (202333551)

REPORT

COMPLAINT 202333551

London Borough of Hackney

8 January 2025

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 is about the landlord’s response to the resident’s reports of smoking in communal areas.

Background

The resident holds a secure tenancy with the landlord. The property is a flat located on the second floor of a 3-story building. The resident has vulnerabilities relating to his mental health, which include depression and anxiety. A support worker has assisted the resident in reporting some of his concerns to the landlord.
On 20 July 2023, the resident informed the landlord about individuals smoking cigarettes and drugs in the communal areas of the building. On the same day, the landlord opened an antisocial behaviour (ASB) case to investigate the reports made by the resident.
Between 1 September 2023 and 4 September 2023, the landlord called the resident to discuss his reports in more detail and agreed on an action plan to address the issue. It conducted a risk assessment with the resident, which identified that incidents of individuals smoking in the communal areas were occurring weekly and impacting his mental health. The landlord issued a notice to all tenants in the building, reminding them that smoking in the communal areas violated their tenancy agreements.
On 5 September 2023, the landlord sent the resident an action plan summarising the steps agreed upon, during their discussion the previous day. The plan outlined the following actions:
1. contact the alleged perpetrator and arrange an interview
2. address the reports of ASB occurring in the communal areas
3. post letters to tenants in the building
4. replace the ‘No Smoking’ sign in building
5. provide the resident with updates on any developments
6. collect and review photographic and recorded evidence
7. ensure confidentiality for any information shared
8. take appropriate tenancy enforcement action, if necessary
The landlord interviewed a neighbour of the resident on 11 September 2023, to address allegations made by the resident that the neighbour’s visitors were smoking in communal areas of the building. The landlord reminded the neighbour of their responsibility for the behaviour of visitors to their property. On 13 September 2023, the landlord sent a letter to the resident summarising its discussion with the neighbour. The letter encouraged the resident to report any instances of drug smoking in the communal areas directly to the police. The landlord clarified that tenants in the building were allowed to smoke cigarettes on their open balconies, as these areas were open spaces and did not pose a fire risk. While it acknowledged the resident’s dislike of the smell of smoke, it explained that smoking cigarettes in these areas was not illegal. The landlord informed the resident that it would monitor the situation for 2 weeks and, if no further incidents were reported, it would close the ASB case.
On 18 September 2023, the resident submitted a complaint to the landlord, stating that the ASB officer handling the ASB case refused to accept his reports about his neighbour smoking in the communal corridor.
The landlord issued its stage 1 complaint response to the resident on 4 October 2023. It summarised the actions taken in response to the resident’s reports and explained that, since no further incidents of smoking in the communal areas had been reported, the case was closed. The landlord stated that it spoke with the ASB officer handling the case, who denied refusing to accept the resident’s reports. It also acknowledged new reports from the resident regarding his neighbour and another tenant, but explained that these reports, made to the complaints team, lacked sufficient detail to enable further action. The landlord advised the resident to submit detailed concerns to its dedicated ASB and housing email address for appropriate follow-up.
On 10 October 2023, the resident asked the landlord to escalate his complaint to stage 2 of its complaints process. He disagreed with the landlord’s claim that the ASB case had been fully investigated and expressed dissatisfaction with the landlord’s attempt to shift responsibility for addressing his concerns to his housing officer.
The landlord issued its stage 2 complaint response to the resident on 13 November 2023. It reiterated the findings outlined in its stage 1 complaint response and highlighted that it had been waiting for additional information from the resident regarding tenants and visitors smoking in the communal areas of the building. The landlord explained that its ASB and housing teams collaborated closely when addressing reports of ASB, and confirmed its willingness to provide a further response once it received the information the resident indicated he would submit.
On 16 November 2023, the resident escalated his complaint to this service, stating that his neighbour and their visitors continued to smoke in communal areas of the building and that the landlord had failed to take any further action. He later informed this service on 25 November 2024 and 16 December 2024, that the landlord had still not resolved the issue and had failed to reinstate the “No Smoking” signs in the building.

Assessment and findings

Scope of the investigation

After the landlord’s complaints process concluded on 13 November 2023, the resident reported on 22 January 2024, that his neighbour and visitors continued to smoke in the communal stairway. In response, the landlord opened a new ASB case on 29 January 2024. While the Ombudsman has received some case notes regarding the resident’s reports during this period, in the interest of fairness, the scope of this investigation is limited to the events between July 2023 and November 2023. This is because the landlord must first have the opportunity to investigate and respond to any reported concerns prior to the involvement of this service. If the resident is dissatisfied with the landlord’s handling of his ASB reports after November 2023, he may wish to raise a complaint directly with the landlord about this. If the resident is not satisfied with the landlord’s final response, he may then refer the new complaint to the Ombudsman for consideration at that stage.

Legal obligations and policy framework

The landlord’s ASB policy defines ASB as:
1. conduct that has caused, or is likely to cause, harassment, alarm, or distress to any person
2. conduct capable of causing a serious nuisance
3. conduct capable of causing housing-related nuisance or annoyance to any person
The policy identifies behaviours such as drug misuse, loitering in communal hallways and stairways, and misuse of communal areas as examples of ASB. When investigating ASB reports, the landlord gathers evidence by contacting other residents, engaging with external agencies, and interviewing the alleged perpetrator(s) where appropriate. However, certain actions, such as sharing information with the police, may be carried out in confidentiality.
To address and resolve ASB, the landlord may employ various measures including:
1. sending warning letters
2. offering mediation
3. issuing acceptable behaviour agreements (ABA)
4. issuing community protection warnings/notices
The landlord acknowledges ASB reports within 5 working days and contacts the reporting resident, usually within the same timeframe, to discuss concerns in detail. An action plan is then completed, outlining appropriate steps, timescales, and review schedules.
The policy emphasises that taking action to end a tenancy is a serious step, pursued only when necessary and proportionate to address the harm caused by the perpetrators’ behaviour. ASB cases may be closed if the landlord has taken all reasonable steps to address the issue, cannot reach the reporting resident, or does not receive requested information from the resident. Before closing a case, the landlord attempts to contact the resident. In most instances, a housing officer conducts the initial investigation of low-level ASB reports.

The landlord’s response to the resident’s reports of smoking in communal areas.

The Ombudsman recognises that the resident has experienced significant distress due to ongoing smoking in communal areas, and frustration with the landlord’s handling of the situation. These feelings are understandable, as dealing with such issues can be challenging and stressful for those involved.
It is outside the Ombudsman’s role to establish whether someone has or has not committed ASB. Rather, we seek to establish whether the landlord’s response to the resident’s reports in line with its legal obligations, policies, and procedures, and whether its actions were fair in all the circumstances of the case.
The evidence shows that the resident reported individuals smoking in communal areas of the building on 20 July 2023, prompting the landlord to appropriately open an ASB case on the same day. However, the landlord took 14 days to acknowledge the resident’s concerns, which was not in line with its published timescales for responding to ASB reports. Following this delayed acknowledgement, the landlord did not communicate with the resident again until conducting a risk assessment on 1 September 2023, which was an additional 19 working days later. Although the landlord’s immediate action to open an ASB case was a positive step, its delayed acknowledgment and lack of consistent communication likely left the resident feeling distressed, that his concerns were not being taken seriously, and may have undermined his confidence in the landlord’s ability to handle the situation effectively.
The landlord’s records indicate that the resident’s initial reports did not identify specific tenants but suggested that someone in the building was allowing access to individuals responsible for smoking in the communal areas. Considering the limited detail and evidence provided at that time, the landlord had a responsibility to take further investigative steps. These could have included engaging with the resident to gather additional information and speaking with other tenants to gain further insight. The landlord appropriately responded by calling the resident to discuss his reports in more detail and conducted a risk assessment of the situation. This approach was in line with its ASB policy and by conducting a risk assessment, the landlord demonstrated a proactive effort to understand the severity of the issue, and plan proportionate actions to address it.
The evidence shows that the landlord acted in accordance with its ASB policy and agreed on an action plan with the resident on 4 September 2023, outlining clear steps to address smoking in the communal areas of the building. However, the landlord did not include specific timescales for these steps, which would have provided greater clarity and transparency. Including specific timescales would have allowed the resident to understand when actions would be taken, and demonstrated the landlord’s commitment to resolving the resident’s concerns in a timely manner. Despite this omission, the landlord took prompt action by issuing a notice to all tenants in the building on the same day. The notice addressed the reported behaviours and reminded tenants of their responsibilities under the tenancy agreement, showing a proactive approach to managing the situation. Furthermore, the landlord informed tenants that it had reported the incidents to the local police and requested unannounced visits. By involving the police, the landlord showed its willingness to use a range of tools to address the resident’s concerns effectively and as quickly as possible.
The evidence shows that the landlord interviewed the resident’s neighbour on 11 September 2023, 5 working days after speaking with the resident and distributing a notice to the building’s tenants. 2 working days later, the landlord informed the resident about its discussion with his neighbour and outlined the next steps. These actions were appropriate, as they demonstrated that the landlord was treating the resident’s reports as a priority. By discussing the resident’s allegations with his neighbour, the landlord took a balanced approach, allowing it to gather a more comprehensive understanding of the situation. This approach would have also helped the landlord determine the most appropriate next steps to address the resident’s concerns effectively.
The landlord informed the resident on 13 September 2023, that it would close the ASB case within 2 weeks if no further reports of smoking in the communal areas were received. This was a reasonable approach, as the case had been open for nearly 10 weeks, and there appeared to be no further incidents during that time. However, before closing the case, the landlord should have provided the resident with a written summary of the actions it had taken in response to his reports, including confirmation of whether all the agreed steps in the action plan were completed. Not only would this have served as a record, but would have also ensured the resident was clear about the extent of the landlord’s efforts to address his concerns. While we acknowledge that the landlord included a summary of its actions in its stage 1 complaint response, the resident later reported that the “No Smoking” sign on the first floor had not been replaced as agreed in the action plan. As there is no evidence in the landlord’s records to confirm whether it responded to this concern, the Ombudsman cannot determine whether the landlord completed this element of the action plan and fulfilled its commitments to the resident. This lack of clarity highlights the importance of thorough record-keeping, clear communication with residents regarding the completion of agreed actions, and ensuring all correspondence is responded to within a reasonable timeframe. The landlord should replace the “no smoking” sign now if it has not done so already.
The resident challenged the landlord’s decision to close the ASB case, stating that he had reported new incidents in September 2023, involving his neighbour and their visitors smoking in the communal stairway. He explained that he made these reports via phone and voicemail. While the Ombudsman does not doubt that the resident may have made these reports, there is no evidence in the records to confirm this. As an impartial service, the Ombudsman bases decisions solely on the available evidence. In situations where there are conflicting accounts and insufficient documentary evidence to verify what occurred, the Ombudsman cannot conclude that there was a failure by the landlord or require it to take action to put right its failure. Nevertheless, in both its stage 1 and 2 complaint responses, the landlord encouraged the resident to submit any additional evidence he wanted it to consider. The landlord’s records do not indicate that it received further information from the resident in the following days after the conclusion of its complaints process, which would have limited its ability to take further action or reopen the ASB case at that stage. This suggests that the landlord acted reasonably within the scope of the evidence available to it.
Finally, the resident expressed to the landlord that he felt it was diverting responsibility for his reports to his housing officer. In its stage 2 complaint response, the landlord appropriately explained that, in accordance with its ASB policy, housing and ASB officers work closely together when addressing ASB concerns. Both teams share responsibility for ensuring tenants comply with their tenancy agreements, and their joint efforts are essential for effectively resolving issues that may arise. It is common practice for multiple teams within a landlord’s organisation to work together in this way.
Overall, the landlord’s delayed acknowledgement of the resident’s report and its delay to start its investigation discussion, has led the Ombudsman to determine service failure in the landlord’s response to the resident’s reports of smoking in communal areas of the building.
The landlord must confirm to the resident in writing when the “No Smoking” signs in the building were replaced. If they have not been replaced, the landlord should replace these, as agreed in its action plan with the resident.
The Ombudsman’s Remedies Guidance, which is published on our website, sets out our Service’s approach when seeking to resolve a dispute. Where there has been a determination of service failure, the guidance states that landlords should offer residents a financial remedy of £50 to £100 in cases where we identify a single or limited number of minor failings in the landlord’s service delivery. The landlord should pay the resident £100 compensation for the distress and inconvenience caused by the initial delays in the handling of its investigation.
The Ombudsman also recommends that the landlord review the actions it has taken so far in response to the resident’s reports of smoking in the communal areas of the building, to assess whether any further escalation is necessary. The landlord should consider discussing its next steps with the resident and provide a clear timescale to set and manage his expectations effectively.

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 smoking in communal areas of the building.

Orders and recommendations

Orders

Within 4 weeks of the date of this determination, the landlord must:
1. confirm to the resident in writing when the “No Smoking” signs in the building were replaced. If they have not been replaced, the landlord should replace these, as agreed in its action plan with the resident.
2. pay the resident £100 compensation for the distress and inconvenience caused by the initial delays in the handling of its investigation.
The landlord is ordered to provide evidence of compliance of the above orders to the Ombudsman within 4 weeks of the date of this decision.

Recommendations

The landlord should review the actions it has taken so far in response to the resident’s reports of smoking in the communal areas of the building, to assess whether any further escalation is necessary. The landlord should consider discussing its next steps with the resident and provide a clear timescale to set and manage his expectations effectively.