Summary: Ms X complained the Council failed to effectively deal with her reports about strong cannabis smells that she and her child regularly experienced in their home. This significantly impacted on her child due to their needs. We found the Council at fault. We cannot see it signposted Ms X to its anti-social behaviour case review process. This fault caused injustice as she was not aware she could exercise this right. The Council has agreed to apologise and provide Ms X with information about this review process.

The complaint

1. Ms X complains about her current home, which she moved into via the Council’s housing register. She says the property is not suitable for a number of reasons, including being regularly being subjected to strong cannabis smells. She says the Council has not done enough to resolve the matter as it is significantly impacting on her child’s needs and their general wellbeing.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We also consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

5. My investigation focuses on Ms X’s reports of the cannabis smell between February 2024 up until September 2024 (when the Council updated Ms X on its final position regarding these issues).

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How I considered this complaint

6. I considered information and evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and administrative background

Anti-Social Behaviour, Crime and Policing Act 2014 (“the Act”)

8. The Act gives the Council powers to tackle anti-social behaviour (“ASB”). Section 2 of the Act defines ASB as:
• conduct that has caused, or is likely to cause, harassment, alarm or distress to any person;
• conduct capable of causing nuisance or annoyance to a person in relation to that person's occupation of residential premises, or;
• conduct capable of causing housing related nuisance or annoyance to any person.
9. ASB can take many different forms; and councils should make informed decisions about which of their powers is most appropriate for any given situation. For example, it could approach it as an environmental health issue if deemed appropriate.

Statutory nuisances

10. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential statutory nuisances.
11. For the issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other property; and/or
• injure health or be likely to injure health.
12. Activities a council might decide are a statutory nuisance include smells and fumes from industry, trade or business premises. Government guidance says, “statutory nuisance laws don’t apply to smells from residential properties”.

Anti-Social Behaviour Case Review

13. The ASB review process (which used to be referred to as the ‘Community Trigger’) allows for a review of the case where a locally determined threshold is met.
14. If the threshold is met, the relevant bodies should carry out the review. They should share information, consider what action has already been taken, decide whether more should be done, and then tell the complainant the outcome.
15. Asking for an ASB case review is not the same as making a formal complaint against a council for how it has handled reports of ASB.
16. The Council’s ASB review process is still referred to as the ‘Community Trigger’ on the Council’s website. It says, “it should be used if you have reported three separate incidents in the last six months….and you consider no action has been taken”.

What happened – summary of key relevant events

17. Ms X is a tenant of the Council, living in a block of flats in an estate. She has a child with a medical condition and disabilities.
18. In early 2024, Ms X reported issues about the strong smell of cannabis regularly coming into her home from her loud neighbours. She said this severely affected her child. A Council officer from Tenancy Services responded and sent log sheets for her to record these. They later informed Ms X it had carried out visits to her neighbours, with Police. They did not see ASB, experience the smell, or find evidence they smoked inside their homes.
19. The officer visited again and spoke with other residents; they were told most of them smoked in their own homes. Some said they could smell it now and then, but it did not bother them so did not report it. The officer did not experience the smells in door to door enquiries. They noted the layout of the block could be an issue in determining who was causing the nuisance to Ms X. Also, as it was not in a communal area, they said it could not take enforcement action as it could not identify a perpetrator. The officer closed the case and informed Ms X.
20. In spring 2024, Ms X contacted the Council. She felt nothing had been done and the smell continued to come into her home, and it was not safe for her child’s health. The officer responded with the actions they took previously, which had been communicated with her, and why they closed the case.
21. The Council sent a warning letter to all residents in the block about the anti-social behaviour and advised residents not to smoke substances as it caused nuisances to neighbours.
22. In summer 2024, Ms X contacted the Council again with her concerns. She understood why it could not effectively implement a resolution but wanted to escalate it as she was still being impacted by the smells. She was advised of the Council’s Estate Enforcement (“EE”) team remit as it dealt with ASB and nuisances. Ms X emailed the EE team about the continuous smell of cannabis, including her log sheets of incidents.
23. The Enforcement officer said even if they knew where it was coming from, it was unlikely to meet the statutory nuisance threshold. Ms X rang the Enforcement number as advised a number of times when the smell was particularly strong. The Council reported it was not always possible to attend urgently due to resources. It said by the time its patrols visited, or with its general patrols it did in the area, it could not identify any strong cannabis smells. It told Ms X the difficulties in taking action if the source could not be found. The log’s timings were not enough to narrow down pre-arranged visits, but it would still monitor during general patrols.
24. The Police contacted Ms X and told her where it thought the smell could be coming from, but it had no other leads. The Police contacted the Council and both parties shared information about the issues.

Analysis

25. From the evidence seen, the Council responded promptly to Ms X’s concerns. It updated her regularly with how it had investigated her reports, the actions it had taken, and the general outcome of these. This included steps to gather evidence, including trying to experience the smells first hand, through making enquiries of neighbours and other residents, considering the information from her logs, and sharing relevant information with other internal teams and the Police.
26. The Council’s EE team did suggest its view that the issue was unlikely to be a statutory nuisance. This would indicate it fell more under the remit of ASB. The Council explained the limitations of what it could do as its evidence gathering did not identify a perpetrator.
27. Ms X was dissatisfied with the Council’s response to her reports. She wanted further support, and I recognise Ms X’s primary aim is to be moved because the issues seriously affect her child. We look at the process, rather than the merits of the Council’s actions and decisions. We do not decide what action a council should take, including any enforcement. I have noted what the Council did to investigate, but in this case, it appears the Council has not referred Ms X to its ASB case review process.
28. The Council’s policy and website says a complainant can request this to review their ASB reports if they are not satisfied the matter has been dealt with effectively. I have not seen evidence the Council signposted Ms X to this process. This is fault. It is not our role to say if her case met the threshold for review; the relevant bodies involved decide this. However, as Ms X made a number of reports and told the Council of her dissatisfaction with the outcome, the Council should have told her about the ASB case review process.
29. If eligible, this would involve a review panel meeting with agencies involved to review how it had been handled and to try and reach an agreeable outcome.
30. I cannot say if the Council had done this, if the outcome is likely to have been any different. But this has caused injustice to Ms X as she was not informed of her right to request this.

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Agreed Action

31. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
32. Within one month of the final decision:
• Apologise to Ms X and provide her with information on the Council’s anti-social behaviour case review process, which is open for her to use if she wishes. Should she choose to, the Council should proceed in line with its policy.
33. Within two months of the final decision:
• Send written reminders to relevant staff to signpost complainants to the anti-social behaviour case review process after a complainant has made a number of reports and continues to be dissatisfied with the outcome.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. I found fault with the Council which caused injustice to Ms X. The Council has agreed with my recommendations to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman