Optivo (201805041)

REPORT

COMPLAINT 201805041

Optivo

13 May 2021

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’s handling of the resident’s reports of antisocial behaviour (ASB).
2. The resident’s request for a housing transfer.

Background and summary of events

The resident is a tenant of the landlord and her property is a flat. She has made reports of ASB by several residents on the estate. This includes reports of the smoking of cannabis and that she can smell the fumes in communal areas and in her flat. In particular, the resident alleges that a near neighbour smokes cannabis and that the smell permeates in her flat.
On 3 September 2018, the resident reported an altercation with a neighbour. On the same day, the landlord asked the resident to download the noise app and complete diary sheets for two weeks. It also requested a police reference number and the address of the neighbour after which it would speak to neighbour and advise them not to communicate with the resident.
On 8 November 2018, the landlord arranged a meeting with two neighbours to discuss reports of ASB, including alleged cannabis smoking. After the residents did not attend the meeting the landlord wrote to the residents again. It also offered mediation to the resident at this time although there is no evidence that this was accepted. On 14 February 2019, the landlord visited the near neighbour to discuss the allegations against her.
On 26 March 2019, the landlord sent a letter to all neighbours advising that it had reports of residents smoking cannabis causing fumes in the communal areas. Its internal correspondence indicates that the resident had in particular complained about the near neighbour smoking cannabis; however, it had visited and not witnessed signs off cannabis smoking or the smell.
On 8 July 2019, the landlord met with the resident who had reported further incidents. It subsequently wrote to the resident on 24 July 2019 agreeing for professional witnesses to patrol the grounds. It also advised that the police would continue to patrol the area at its request. The landlord spoke to three other residents who supported the allegations of visitors causing a nuisance in the summer months but could not confirm where the smell of cannabis was coming from.
The landlord made a request for information from the police and on 13 August 2019, the police disclosed to the landlord that there was no evidence to support any of the allegations made about the near neighbour or that there was cannabis in the home.
Throughout September and October 2019, the landlord arranged for professional witnesses to visit the communal areas of the block. The resident did not allow a witness to visit her home to gain evidence although the resident has advised this Service that was due to having the witness’ allergies in mind. The professional witnesses reported a faint smell of cannabis but could not confirm where the smell came from. The witnesses did not report any disturbances from visitors. During this time, the resident reported to the landlord that she could smell cannabis most nights.
The landlord spoke again to the near neighbour who denied the allegations against her. The landlord met the resident on 15 November 2019 to advise her of this.
On 21 November 2019, the landlord wrote to residents advising that it had received evidence of a persistent smell of cannabis which was causing a nuisance and was a tenancy breach, and which may lead to possession action if confirmed. Between 21 and 27 October 2019 the landlord sought to speak to several residents in the block, and on 28 November 2019, the landlord wrote to the resident advising that it had spoken to a number of neighbours and received “mixed” results; however, it had taken enforcement action against the near neighbour. The landlord has provided this Service of the action taken against the neighbour which was in relation to nuisance caused by her and/or her visitors. However, further details cannot be disclosed for reasons of confidentiality.
On 9 December 2019, the resident emailed the landlord advising that its actions had only been temporarily successful as there had been four incidents whereby she could smell cannabis since 2 December 2019, and that she wished to make a formal complaint. On 10 December 2019 the landlord logged a formal complaint about its handling of the resident’s reports of illegal drug use. It advised that in the meantime the ASB Team would continue to deal with concerns raised.
On 3 January 2020, the landlord wrote to the resident. The landlord noted that between November 2018 and April 2019, it had investigated an ASB case, and then closed it due to lack of evidence. After meeting with the resident on 8 July 2019, it agreed to open another ASB case to investigate her reports of the persistent smell of cannabis and disturbance caused by the neighbour and her visitors, and to use independent professional witnesses. The landlord also stated that, in addition, it agreed to provide information about possible rehousing.
The landlord relayed that having spoken to three neighbours, two supported the reports of visitors causing a nuisance in the summer months, but, again, there was no witnesses or confirmation where the cannabis smell was coming from. The landlord also stated that the police on 13 August 2019 did not confirm the allegations about the neighbour. The landlord noted that it had used professional witnesses who did report a faint smell of cannabis but could not confirm where the smell was coming from, nor did they witness any disturbance from visitors. The landlord also noted that it had written to residents about the smell of cannabis.
In conclusion, the landlord stated that unless there was an independent witness or police evidence it was unlikely to take action on further reports of cannabis. It suggested that the resident report cannabis smoking to the police as it was a crime and stated it would take appropriate tenancy action if there was evidence of a breach. The landlord also noted that the resident had applied for rehousing with the local authority and that it could provide her with other options, if requested.
On 7 January 2020 the resident reiterated that the near neighbour and her visitors caused drug nuisance and on 10 January 2020 the resident advised the landlord that she would like a transfer and for the neighbour to close her patio door and window when smoking. On 21 January 2020, the landlord received the resident’s complaint escalation form.
On 7 February 2020, the landlord sent the final response to the complaint. It advised that it could not assist with a transfer as it did not have a transfer list. It advised that allegations about the neighbour had been investigated by its housing team and professional witnesses, and that it had been working with the police as drug use is a criminal offence. The landlord advised that the investigations had produced no evidence to support the allegations made and her request for actions against the neighbour. The landlord also reiterated its offer to provide professional witnesses.

After the complaints procedure

On 1 July 2020, the landlord sent a warning letter to residents advising that it had received reports of cannabis smoking and that it was investigating and building up evidence against the persons responsible.
In an exchange of correspondence in July 2020 the resident advised the landlord that she would be referring her case to the local authority’s Community Safety Unit as it had failed to deal with her reports of cannabis smoking in her view. The landlord re-sent the complaint response of 7 February 2020 to the resident as she did not receive it at the time, advised her to continue to report incidents to the police and committed to contact her further to discuss professional witnesses.
In the correspondence the resident advised of an incident on 15 July 2020 whereby the police witnessed cannabis and interviewed four neighbouring tenants who admitted to smoking cannabis.
On 19 October 2020 there was a joint professional case conference involving the landlord, police, and local authority. On 29 October 2020 the landlord wrote to the resident with the outcome. It advised that the police had carried out weekly surveillance of communal areas, but no evidence of cannabis had been found. The police also had carried out unannounced visits to the neighbour alleged to be smoking cannabis and to the resident’s property but not found no evidence of cannabis use. The landlord also noted that the resident had declined home visits from its housing officer.
The landlord reiterated that professional witnesses had attended the communal areas and found no evidence of drug use. It noted that no complaints had been made by other residents. The landlord advised that, overall, it had been investigating allegations since 2018 but found no evidence against the alleged perpetrator of cannabis smoking. It stated, in summary, there was no evidence to support taking further action. The landlord confirmed this position in a further email sent on 29 November 2020 but stated it would reopen the ASB case if the resident completed diary sheets. In the email the landlord also addressed the resident’s request for a transfer. It noted that she had registered with the local authority but stated that she could consider a mutual exchange and registering with Home Swapper. It also advised the resident that it could assist her with moving to an independent living scheme which would be via the local authority.
On 10 February 2021, the resident wrote to the landlord again alleging cannabis use by three neighbours and describing difficult relations with several others. There was further correspondence throughout March and April 2021 in which the landlord asked the resident to complete diary sheets and to report incidents to the police. It advised it would ask the police to provide evidence about alleged cannabis use and dealing at the near neighbour’s property and advised of action it had taken against other two other residents in respect of noise and an altercation.

Assessment and findings

ASB Policy and Procedure

The landlord’s ASB policy states that it “will work in partnership with other agencies such as the police and use a range of preventative measures, early intervention and legal action to tackle ASB” and that “the actions we take will be proportionate to the seriousness, impact and frequency of the behaviour, the level of risk that it poses to those affected and the evidence available to support the case.”
The ASB procedure outlines a number of actions the landlord should take after receiving a report of ASB from a resident. This includes:
1. “Agree an action plan with them on what we’ll do to investigate the ASB.
2. Talk them through the process of an ASB case:
  1. gather evidence of the allegations.
  2. put the allegations to the other party (if they’ve agreed this)
  3. decide on what’s appropriate action to take e.g. warning based on the evidence gathered.
Regarding the gathering of evidence, ASB procedure states: “There are different ways to do this. For example:
1. Interviewing complainants, witnesses and alleged party (AP).
2. Information from other agencies such as the police / local authority noise teams / environmental health teams.
3. Block letters / ASB surveys encouraging residents to report ASB to Opteva.
4. Diary sheets.
5. CCTV evidence.
6. Professional witnesses.
7. Hearsay evidence.

If an incident’s been reported to the police, the HO / ASB case Officer should complete a police disclosure to find out what action they’re taking.”

Regarding the action that can be taken, the ASB procedure states that “unless the case is serious, we use non-legal actions to stop the ASB. These include (but are not limited to):
1. Acceptable Behaviour Agreements (ABAs).
2. Community Protection Warnings / Notices (in co-operation with local authorities).
3. Diversionary schemes / social impact projects / youth projects.
4. Good Neighbourhood Agreements.
5. Mediation.
6. Housing options.
7. Parental Guidance Agreement (for under 10s).
8. Support referrals for both parties.
9. Warning letters.”

Assessment

It is important to reiterate at the outset that it is not for this Service to determine if the behaviour evidenced here constituted ASB, as that was a judgement which fell to the landlord to determine. It must also be recognised that responsibility for ASB lies with the perpetrator, not the landlord. The landlord, however, has responsibility to ensure that it takes appropriate and proportionate action to address and seek to resolve reported ASB, and that it has adequate and effective procedures in place for doing so.
It should also be noted that a resolution which suits all parties may not be possible in cases where there are lifestyle differences or personality clashes, resulting in neighbour disputes rather than ASB, for example.
Upon receiving reports of alleged ASB the landlord first needs to gather evidence to establish whether the behaviour is unreasonable and constitutes ASB. Its procedures must also ensure that it remains impartial and does not seek to apportion responsibility for behaviour until it has established the facts. It is therefore important that a landlord has in place procedures to ensure reports of ASB are appropriately and effectively responded to. The landlord’s policy and procedure for addressing ASB was comprehensive and appropriately structured. It allowed for the prioritisation of reports and provided a number of measures that could be taken either in isolation or in conjunction, depending on the severity and urgency of the reports. Embedded within the procedure was the need for engagement and liaison with partner agencies, including the police. This Service must therefore consider whether the landlord followed its own procedure in response to the reported ASB.
After the resident’s report of 3 September 2018, the landlord asked the resident to complete diary sheets. This was in line with the ASB procedure and appropriate as the resident had previously reported difficulties in the relationship with several neighbours and diary sheets allow landlords to obtain precise information on the nature, frequency, duration and impact of ASB at that time. This in turn can inform what further action it should take. It was also appropriate that the landlord asked the resident to use the noise app as this could provide objective evidence of any noise nuisance. There is no evidence that diary sheets or noise recordings were returned at this time although the resident continued periodically to complain about some of her neighbours.
It was in line with the ASB procedure and also appropriate that the landlord sought to interview neighbours identified by the resident. Although it unsuccessfully tried to carry out interviews in November 2018, it carried out interviews in February and March 2019. It is appropriate to bring reports to the attention of the neighbours as on receipt of a complaint of ASB, an alleged perpetrator must be given an opportunity to be made aware of it, to respond and where relevant, a chance to put things right. The landlord also took further steps to prevent incidents of cannabis smoking by sending a letter to all residents about the matter in March 2019. Block letters are an option identified in the ASB procedure and it was appropriate that one was sent to all residents as at this time no one resident or visitor had been confirmed as smoking cannabis.
For a landlord to take action against a tenant in respect of ASB it requires corroborative evidence to support taking such action. In this case, as the resident made further reports the landlord took steps throughout 2019 to obtain such evidence by employing “professional witnesses” which again are an option outlined in the ASB procedure. Professional witnesses allow landlords to obtain independently verified evidence of particular antisocial acts that would support action against identified perpetrators. Furthermore, the landlord made a police disclosure request in line with the ASB procedure which notes that it should consider seeking information from other agencies. It also interviewed other neighbours. In taking these actions, the landlord followed the ASB procedure and demonstrated that it had taken matters seriously. There is evidence that the landlord took escalated action against the near neighbour as it obtained evidence to support the resident’s general allegations about nuisance behviour, even though specific incidents involving cannabis use were not identified.
After the resident’s complaint completed the landlord’s complaints procedure, the resident made further reports of cannabis use in July 2020. It is evident that the landlord took further steps to resolve the matter by sending another block letter and working with the police which agreed to increase its patrols of the area. However, there is no evidence that it made further arrangements for professional witnesses to re–attend as it had informed the resident, which added to her distress.
With regards to the resident’s report of a police visit of 15 July 2020 at which she stated it witnessed cannabis use and spoke to neighbours, it is not clear that the landlord asked the police to disclose details of the incident. However, there was further contact and liaison between the police and the landlord, as confirmed by the case conference in October 2019. Several agencies had been involved the resident’s case and the meeting allowed a comprehensive and co-ordinated review. Ultimately there is no evidence that the police provided confirmation to the landlord of cannabis use by the near neighbour or any particular resident at the estate.
In conclusion, this is the type of situation for which there is no straightforward answer, which will be little comfort to the resident. For a landlord to take action against a tenant in respect of ASB it requires corroborative evidence to support taking such action. Formal legal action is only likely to succeed in the most serious cases, with a substantial amount of supporting evidence to convince a court that it would be just and proportionate to grant an order. However, in terms of the landlord’s involvement, this Service is satisfied that it has taken a range of actions in accordance with its ASB procedure to investigate the resident’s reports and obtain supporting evidence. It has also sought to prevent further problems arising by sending warning letters to individuals and to the block as a whole.
With regards to the resident’s request for a transfer, the landlord’s Housing Options and Lettings Policy confirms that it does not have a internal transfer waiting list. The policy states that for existing tenants who need to move, the landlord will “provide information about options to move including:
1. Mutual exchange
2. Applying to a local authority for a transfer. You’ll need to register with your local authority and bid for suitable homes if there’s a Choice Based Lettings Scheme
3. Shared ownership and other affordable ownership products.”
The landlord’s advice in its complaint responses that it did not have an internal transfer list through which the resident could be transferred was consistent with the Housing Options and Lettings Policy. Its advice, in its email of 29 November 2021 that the resident could explore rehousing through carrying out a mutual exchange and applying to the local authority was also in line with the policy.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its handling of the resident’s reports of ASB.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of the resident’s request for a housing transfer.

Reasons

The landlord has taken a range of actions in accordance with its ASB policy and procedure to investigate the resident’s reports and obtain supporting evidence. This includes asking the resident to complete diary sheets, seeking evidence of noise through the noise app, interviewing several neighbours, employing professional witnesses and working with the police which has patrolled the area and visiting the resident and neighbours. It has also taken action, in line with the ASB procedure, to prevent further problems arising by interviewing individuals and sending warning letters, and by writing to the block as a whole about receiving reports of cannabis use.
The landlord’s advice in its complaint responses that it did not have an internal transfer list through which the resident could be transferred was consistent with the Housing Options and Lettings Policy. Its advice, in its email of 29 November 2021 that the resident could explore rehousing through carrying out a mutual exchange and applying to the local authority was also in line with the policy.

Orders and recommendations

As the resident has recently reported the continued use of cannabis by neighbours, it is recommended that the landlord confirm to the resident what action it will now take on the case, and what further information it may require.
The landlord is recommended to confirm to the resident the circumstances under which professional witnesses can re-attend communal area and/or the resident’s property. The landlord is also recommended to confirm whether its own staff can attend the communal areas / the resident’s flat to witness cannabis use and other nuisance behaviour.