Ongo Homes Limited (202308304)

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REPORT

COMPLAINT 202308304

Ongo Homes Limited

30 May 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 is about:
1. The landlord serving a tenancy breach letter.
2. Staff conduct.
3. Complaint handling.

Background

The resident has been an assured tenant of the landlord since 2021. The property is a semi-detached 2-bedroom bungalow. He has impairments with mobility due to a degenerative spinal disorder. The resident also suffers from anxiety and depression.
On Sunday 26 February 2023, an officer of the landlord received complaints from 2 occupants in the area about loud music and the smell of cannabis coming from the resident’s property. The officer attended and heard loud music in the street which they considered excessive, they could also smell cannabis.
They knocked on the door but could not be heard because of the music. They waited until the song was finished and knocked again. The door was answered by the resident. He said he was able to play his music until 10pm. He also showed a cancard which he believed allowed him to use cannabis in his property. The officer advised that the cancard did not permit him to smoke cannabis and doing so was a breach of his tenancy. The resident asked the officer to follow the noise complaints policy and contact environmental health and police if they thought there was a problem.
On 26 February 2023, the landlord wrote a letter to the resident listing the following tenancy conditions, which it considered he had breached:
1. Condition 5.1: not to cause nuisance or annoyance to any other person.
2. Condition 5.3: not to play or allow to be played music in such a manner to cause nuisance.
3. Condition 5.7: not to use the home for illegal activity engage in illegal activity in the vicinity of the home. Illegal activity includes the possession and use of drugs.
4. Condition 5.8: not to use, make, grow, possess, or store illegal substances in the home.
It advised the resident the matters were serious which placed his tenancy at risk. It would be monitoring the situation and if further incidents occurred it may be required to take further tenancy actions.
The resident called the landlord on 27 February 2023. He said he had recently been bullied on a village social media group, which he had now been removed from. He felt the noise complaints against him were linked to this dispute. The complaints about noise were false and he considered them harassment. The landlord advised that it had to accept complaints, however if there were no issues then the resident should not be concerned. He said he was surprised when a tenancy officer had turned up at his door on a Sunday after being told numerous times he did not have a tenancy officer.
On 28 February 2023, the landlord received a call from a neighbour. They reported loud music all day on 26 February 2023 and a strong unpleasant smell of cannabis. The music had also begun again on 27 February 2023. They said that the resident was not normally disruptive but that a recent disagreement on social media may have caused the disruption.
On 1 March 2023, the landlord spoke to another neighbour. They had heard the music on 26 February 2023 and had to leave the property to get away from it. They had not known the resident to play music like this previously.
The landlord visited the resident on 10 March 2023. He told the landlord he was unhappy with the way the officer had spoken to him when they came to his property on 26 February 2023. It discussed the loud music and cannabis use and explained both were a breach of his tenancy agreement. The resident told the landlord he had purchased earphones and would smoke cannabis in his relative’s property in future.
The resident called the landlord on 13 March 2023. He said he had tried to access homeswapper but was unable to because of an antisocial behaviour (ASB) complaint against him. He was informed the ASB complaint was in relation to the loud music and smell of cannabis identified by the officer on 26 February 2023.
The resident called the landlord on 20 March 2023. He was upset as he had not received the notification of his tenancy breach in writing. He said he had emailed the landlord the previous week but had not been called back. The landlord delivered and emailed a copy of the tenancy breach letter on 21 March 2023.
The MP’s office emailed the landlord on 3 April 2024. They explained they had been contacted by the resident and listed his complaint points. They asked the landlord to investigate the resident’s complaint.
The landlord spoke to the resident on 4 April 2023. The resident listed the following complaint points:
1. The landlord had not dealt with the allegations of ASB correctly or fairly. He felt the landlord had not followed its prescribed process and should have let the residents resolve the complaint informally between them. He believed the staff member who had called at his property on 26 February 2023 had been waiting in the area for him to play music and had acted when it happened.
2. The landlord was aware that he used cannabis medicinally. He felt he had been harassed over this for the past 6 years. When the officer called to his property his clothes smelled of cannabis, but he had not been smoking in his property.
3. He carried a cancard, which he said, permitted him to use cannabis without breaking the law. He used music to exercise to help with his disabilities.
4. He felt the customer service he received was poor and that the landlord had not taken his calls seriously. It had also not registered his complaints when requested.
5. The landlord had threatened him with restricted contact for being rude and abusive to staff, which he disputed.
6. To resolve his complaint, he expected the landlord to:
  1. Retract the tenancy breach letter.
  2. Permit him to use homeswapper.
  3. Review its position on cancard holders.
The landlord emailed the resident to acknowledge his complaint the same day. It said it would respond within 10 working days. If it needed more time, it would let the resident know.
The resident emailed the landlord on 26 April 2023. He said it had told him his complaint would be responded to within 10 working days. So far it had been 22 working days and he had not had a response.
On 28 April 2023, the landlord sent its stage 1 response. It listed the following findings and conclusions:
1. A tenancy officer had visited on Sunday 26 February 2023 and heard music playing at a level loud enough to cause nuisance, annoyance, or disturbance to neighbours. The officer that visited could smell cannabis. Considering the events they served a tenancy breach letter.
2. In a call with the landlord on 4 April 2023 the resident said he smoked cannabis in the property, which he purchased from a local drug dealer due to the cost of private medicinal cannabis.
3. The resident said his actions did not constitute a breach of his tenancy and felt the landlord had not made reasonable adjustments for his disabilities.
4. The resident had called the landlord to discuss his concerns about the tenancy breach notice. He had demanded to speak to other staff members and had become irate. The landlord felt the need to end the call.
5. It advised that it may have to consider its unreasonable behaviour policy if the resident placed unreasonable demands on its time.
6. The landlord did not uphold the resident’s complaint. It had reviewed its actions and found it had acted in a reasonable and proportionate way.
7. It found that the officer’s visit on a Sunday was acceptable. It had raised its concerns with the officer’s team leader but would not be taking any further action.
8. The landlord acknowledged there had been a legislative change in the medicinal use of cannabis and was aware of the reasons a resident may carry a cancard. It committed to reviewing the medicinal use of cannabis by its residents, but this future review would not change its decision in the resident’s complaint.
On 2 May 2023, the landlord received a call from a neighbour who had experienced loud music from the resident’s property on 1 May 2023.
The resident emailed the landlord on 8 May 2023. He asked it to escalate his complaint and listed the following points:
1. He used cannabis medicinally for chronic pain. He carried a cancard which indicated medicinal use. He had used cannabis that day at another property 30 minutes before the landlord’s officer had arrived. As a person who uses medicinal cannabis, the odour can be smelt on his person. None of his neighbours had reported the smell of cannabis.
2. He was concerned that the landlord could presume him guilty on the balance of probabilities without question or evidence.
3. He was shocked when the officer arrived. He believed she was acting at the request of her friends. As the landlord does not have an out of hours service those people must have contacted her directly. He felt the officer was rude and threatening.
4. He had been playing music on the day. This was to drown out the screams from the pain associated with exercise. His windows were open so that his cats could get back into the property. The music was not at a volume that would cause a nuisance.
5. He had a meeting on 10 March 2023 at his home with 2 of the landlord’s officers. They asked where he obtained his cannabis supply, he had said, “from a man round hundreds of corners” as he did not want to incriminate anyone. He believed the landlord had twisted his words and used his statements inappropriately.
6. He had never received a copy of the tenancy breach letter and had made repeated requests for a copy. He finally received a hand delivered copy on 21 March 2023.
The landlord called the resident on 11 May 2023 to discuss a complaint made about loud music on 1 May 2023. The resident disputed that the complaint was genuine, he believed it was a further attempt at harassment. He said he would continue to play his music until environmental health contacted him.
The landlord issued its stage 2 response on 29 June 2023, it said:
1. It had offered to refer the resident to internal and external tenancy support.
2. It was sympathetic to his needs but had a responsibility to ensure the terms of the tenancy were adhered to. It was confident the breaches of the tenancy had occurred and would not withdraw the tenancy breach letter.
3. It had investigated the actions of the staff member and had found their actions to be in line with their training and its code of conduct.
4. It had taken advice regarding cancard holders and would be producing guidance for the future.
5. It had not upheld the resident’s complaint.

Assessment and findings

The landlord’s decision to serve a tenancy breach letter.

The landlord’s ASB policy lists one of its aims as early intervention and recognises that tenants should be supported to problem solve issues between the parties. Both noise nuisance and drug use are both classed as ASB. In normal circumstances ASB is allocated for triage. If an officer picks up a case while on site, they can proceed without going through triage. In such instances the officer must carry out early intervention actions such as door knocking and speaking with the source of the nuisance.
If the officer considers further action is necessary, the options include, tenancy support coaching, mediation, a good neighbourhood agreement, an acceptable behaviour contract or tenancy warning letter. When investigating complaints, officers must consider both the complainant’s and the perpetrator’s circumstances. Considerations include, anxiety, depression and or drug misuse to determine if these are a contributing factor to the ASB.
The Misuse of Drugs (Amendments) (Cannabis and Licence Fees) (England, Wales and Scotland) Regulations 2018, require special measures of control for the use of medically supplied products which must be in accordance with the prescription. The regulations continue to prohibit smoking of cannabis and cannabis-based products for medicinal use.
A cancard is a card that identifies a person that uses cannabis due to a medical condition who cannot afford a private medical prescription. To obtain a card, the applicant must provide their summary care record from their GP. The record must detail a condition that would qualify them for cannabis based medical products. Carrying a cancard does not make it legal to smoke or possess cannabis, it is a mitigating factor for the police to consider rather than a defence.
The officer attending the resident’s property had received complaints about loud music and cannabis. As they received the complaints while in the area there was no requirement to pass the complaint to the triage team. Having witnessed the same when they attended the property it was appropriate and required by the ASB policy that they approached the resident to discuss the issues.
It was well known to the landlord that the resident used cannabis due to chronic back pain. The landlord wrote to the resident in 2021 advising that cannabis was a class B drug and could only be used if prescribed by a specialist GP. If the landlord detected the smell in the street, it was reasonable to make enquiries and appropriate for the officer to discuss this with the resident while dealing with the loud music. During the visit, the resident produced his cancard, not a prescription. As stated above, a cancard does not make it legal to carry or use cannabis.
The officer considered that the loud music and the suspicion that the resident had been smoking cannabis were grounds to issue a tenancy breach letter. The letter submitted as evidence was dated 26 February 2023, the same day the breach was witnessed.
Where a resident has a protected characteristic the Equality Act 2010 requires landlords to consider reasonable adjustments. The landlord was aware that the resident suffered from a degenerative spinal condition as well as anxiety and depression. There are no notes to show that the officer considered these aspects before choosing a course of action. This was a failure to comply with the landlords ASB toolkit and policy.
In addition, 2 of the complainants advised that they had not previously known the resident to be so disruptive. The landlord has also not provided any evidence to show there had ever been similar complaints about noise in the past.
In considering action, the ASB toolkit also requires the landlord to take account of any counter allegations. The resident informed it several times that there had been a Facebook dispute and that the noise complaints were linked to that. One of the complainants also referenced the dispute. There is no evidence that the landlord scored the impact of this on the resident or if it considered the dispute and whether the complainants were involved. Not taking account of the resident’s counter allegations was a failure.
There were a number of other less formal tools that may have been more suitable such as mediation, coaching or a good behaviour agreement. Before choosing a course of action the landlord should have considered all the factors of the case and complied with the requirements of its ASB policy and toolkit. It may be that after working through the case, no reasonable adjustments were possible, and the same course of action was chosen. However, without the landlord being able to evidence these steps, it is the Ombudsman’s decision that the landlord cannot reasonably argue that the tenancy breach letter was the appropriate course of action.
As previously mentioned, the tenancy breach letter was dated 26 February 2023. However, the resident has stated he did not receive it. He had to continually chase the landlord for a copy but was told it had already been sent to him. The landlord’s notes from 26 February 2023 do not indicate how it sent the letter, there is no evidence to show whether it was emailed or posted. It was not until 21 March 2023 that the resident received a copy. This was a failure on the part of the landlord.
The landlord failed to fully explain the consequences of the breaches to the resident. It was not until he attempted to log on to the homeswapper site that he realised he had been prevented from using it. This information was also absent from the tenancy breach letter. In addition, the letter did not clarify if there was a time frame that the letter would remain on record, which was inappropriate.
While we do not condone the resident’s actions, the landlord’s handling of the case has caused undue worry, distress and frustration to him. Overall, there was maladministration in the landlord’s decision to serve a tenancy breach letter.
The landlords ASB toolkit states that a risk assessment is not required for crime, severe threats, domestic abuse or noise issues, which it says should be reported to other agencies. There is also no requirement to conduct a risk assessment of the perpetrator should vulnerabilities be present. While we agree that other agencies should be involved in such instances the landlord still has an obligation to support its residents and determine the risks faced. The only way to do this is through risk assessment. For this reason, an order has been made for the landlord to conduct a review of its ASB policy and ASB toolkit.

Staff conduct.

As part of the investigation, we contacted the landlord to obtain information on its officer’s work patterns. It advised it operates an agile working policy, which means officers do not have “normal working hours.” It empowers its staff to work when it is appropriate for them and their customers. However, it did say that while Sunday is not a normal working day, the fact that the officer was in uniform demonstrates she believed she was working in the landlord’s capacity.
The landlord’s evidence on this point has been ambiguous. The landlord does not operate an out of hours noise service. Also, should the officer decide to attend a property as she did, there would be legal obligations surrounding lone working. The landlord has not provided any evidence to us that would support the officer’s actions on that day. Further the officer has not recorded the names addresses or contact details of the two complainants who contacted her on 26 February 2023, which is a significant omission.
However, the landlord confirmed it investigated the officer’s conduct as part of the resident’s complaint and advised it was confident their actions were in accordance with its code of conduct. It has also advised the officer no longer works for the organisation.
The resident has complained that the landlord’s staff have been threatening and rude to him. There are similar claims from the staff in relation to the resident’s behaviour towards them. It is difficult for the Ombudsman to make a determination in such instances where there is conflicting accounts and an absence of supporting evidence.
Due to the above factors, it is the Ombudsman’s decision that there was no maladministration associated with the conduct of the landlord’s staff.

Complaint handling

The landlord has a 2 stage complaints policy. It will respond to stage 1 complaints within 10 working days and stage 2 complaints within 20 working days. At stage 1 the landlord states it will discuss the findings of the investigation before coming to a decision. At stage 2 it commits to letting the resident know who is dealing with the request and that they will be contacted to discuss the complaint.
In a call to the landlord on 27 February 2023 the resident indicated he wanted to make a complaint. However, it did not register a complaint. It was not until he emailed his MP that it contacted him and logged the complaint. This was unreasonable and a failure on the part of the landlord.
The landlord took 17 working days to respond to the resident’s complaint at stage 1 and 37 days to respond to the complaint at stage 2. The landlord did not notify him of a delay at either stage of the process. This was a failure to comply with the requirements of the Ombudsman’s Complaint Handling Code (the Code) and the landlord’s own policy. Additionally, at stage 2 it did not notify the resident of who would be dealing with his complaint or contact him to discuss it. This is required by its policy and was also highlighted by the resident while waiting for the stage 2 response. This was another failure on the part of the landlord.
The resident has referred to his medicinal use of cannabis in his original complaint and his stage 2 escalation. In its responses the landlord has referred to conversations on 10 March 2023 and on 4 April 2023. It states that the resident said he purchased cannabis from a local drug dealer. He also indicated that he smoked in his own property. The resident disputes he made these comments and maintains the landlord “twisted” his words. The resident has also highlighted the difficulty in financing private medical prescriptions.
While we understand the current challenges in obtaining medicinally prescribed cannabis. The resident’s prescriptions covering a 28 day period in July/August and October/November, both show that he has been prescribed “flower” that must be vaped. This is a requirement of the 2018 regulations quoted above. It is reasonable for the landlord to stipulate that it remains illegal to smoke cannabis, otherwise it would be condoning an illegal activity, which it cannot.
Due to the failure to comply with its complaint’s procedure and the requirements of the complaint handling code there was maladministration in the landlord’s handling of the complaint.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s:
1. Decision to serve a tenancy breach letter.
2. Complaint handling
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the conduct of the landlord’s staff.

Orders and recommendations

Orders

Within 4 weeks from the date of this report the landlord must pay the resident £575 compensation. The money must be paid directly to the resident and not offset against arrears. It is comprised of:
1. £400 for the distress, inconvenience, time and trouble associated with the landlord’s decision to serve a tenancy breach letter.
2. £175 for the distress, inconvenience, time and trouble associated with the landlord’s complaint handling.
Within 10 weeks from the date of this report the landlord must conduct a review of its decision to exclude risk assessments for certain types of ASB and of perpetrators. A copy of the review must be provided to the Ombudsman.
The landlord must provide evidence of compliance with the above orders within the time limits specified.

Recommendations

The landlord should conduct a further review of this case including the events of the 23 February 2023 to identify any learning points that it can take forward for future cases.