North Tyneside Council (202000830)

REPORT

COMPLAINT 202000830

North Tyneside Council

28 March 2022

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

This complaint is about the landlord’s response to the resident’s reports and concerns about nuisance and anti-social behaviour (‘ASB’) by a neighbour.

Background and summary of events

The resident is a secure tenant of the landlord.

Policies, procedures, and agreements

ASB policy:

This sets out the landlord’s general approach to dealing with ASB reports. It states that each case will be investigated according to individual circumstances and the approach taken will be tailored to the risk, and any action will be proportionate to the risk.
It states that it will use evidence in the form of noise recording equipment, cameras and witnesses to build a case for enforcement action against alleged perpetrators.
It will support victims of ASB and signpost them to other agencies who can help.
It states that not all conduct that is reported as ASB will be deemed to be ASB; conduct such as everyday living noise and minor disagreements over lifestyle won’t be dealt with as ASB.
When considering formal enforcement action the landlord will take into account factors such as, the seriousness of the events, the quality of the available evidence, and how effective any enforcement action is likely to be.

Scope of investigation

The resident has said that she moved into the property in November 2018 and since then she has had ASB-related problems with two of her neighbours. The resident has said that both these neighbours eventually moved out. However, the new tenant who moved into one of the properties (‘Tenant A’) started harassing and bullying her. The resident has said that Tenant A had a vendetta against her and that she was harassing her by, for example, cutting down her plants and damaging her garden ornaments amongst other issues. There have also been counter-allegations made by Tenant A against the resident.
There is no evidence that these disputes and events were subject to any formal complaints to the landlord, and nor is there any evidence that any such complaints had exhausted the landlord’s complaints process and/or had been referred to this Service during that time.
This investigation report will therefore only consider events from May 2020 onwards (this being six months prior to the formal complaint logged in November 2020) up until the final complaint response in April 2021 on the basis of what the Ombudsman considers to be a reasonable period in light of the provisions of the Housing Ombudsman Scheme and considering the available evidence. It should be noted however that all of the evidence provided by both parties has been considered.
As such, whilst this report may include some historical events for the purposes of context, the scope of this investigation will be limited to consideration of events from May 2020 onwards up until the final response dated 7 April 2021.

Summary of events

The resident contacted this Service on 6 May 2020 seeking advice about pursuing a complaint about her landlord with regards to ASB allegations against Tenant A. This Service advised the resident to complete the landlord’s internal complaints process first before referring the matter back. At this stage the resident informed this Service that the landlord was engaging with her and Tenant A to try and work out a resolution.
Emails in June 2020 between the landlord, the resident and Tenant A showed that Tenant A had asked for permission to put up spikes on the shared fence to deter birds. The resident did not agree to the spikes and the landlord therefore advised Tenant A to consider other options. Tenant A then informed the landlord that she would be putting up plastic bird deterrents (windmills). There is no evidence to show that the landlord prohibited Tenant A from putting up the windmills. The correspondence shows that at this time the landlord also reviewed the ownership of the fence and it was concluded that it was a shared fence.
Between July and August 2020 the diary sheets and emails between the landlord and Tenant A showed that Tenant A had been reporting ASB incidents against the resident. Issues included, the resident filming Tenant A’s daughter leaving the property; verbal abuse over the garden fence; Tenant A said that she had cut the resident’s plants which were overhanging on her side and this ‘had caused some friction’. Tenant A also reported that the resident was deliberately allowing water from her hosepipe to drain into her garden which was killing her flower bed. She also accused the resident of harassment. The landlord’s response to these reports was that it would continue to monitor the situation.
The correspondence shows that the Police were also involved at this point and were liaising with both the resident and Tenant A about allegations against each other regarding an assault when the resident grabbed Tenant As’ secateurs as she was cutting the overhanging plants. It was agreed that the decision on the ASB case would await until the Police had confirmed its position first.
The records show that this was not pursued any further by either party once the Police had confirmed it was not taking any action. The landlord spoke to both parties and reminded them both of the need to avoid tit-for-tat actions and to try and respect each other and be civil to each other.
The resident contacted this Service again on 11 November 2020. She said that in July Tenant A had put up ‘toy windmills’ which were sticking up over the top of the fence, and that this was done to scare the birds out of her garden. The resident complained that the reflective windmills were catching the light and were making a noise which had scared her pet cat and birds. She also said that Tenant A had put up a camera and was taking photos of the resident in her garden. The resident felt that the toy windmills were affecting her enjoyment of her garden and the noise and light reflection was a nuisance to her and her pets.
On or around 11 November 2020 the resident made a formal complaint to the landlord. She made allegations of ASB by Tenant A putting up toy windmills on the shared fence which was causing a flashing light and noise nuisance and disturbing the resident.
The landlord’s internal correspondence on 12 November 2020 showed that it regarded this to be a longstanding neighbour dispute with both parties making allegations and counter-allegations against each other. The Police had been involved but no further action was being taken against any party. The Police had reviewed the allegation of criminal damage to plants but had decided it was not in the public interest to take any further action.
The landlord’s records stated that it had investigated the dispute about the toy windmills and it was satisfied that they had been put by Tenant A to deter birds from roosting/nesting in her garden (and it was noted that the resident had a lot of bird feeders in her garden which were attracting birds).
It was decided that the garden issues did not constitute any breach of tenancy and therefore no further action was necessary at this time. Similarly, there were no concerns about the neighbour’s CCTV camera and the resident was advised about this and was referred to the Information Commissioners Office for further advice and guidance.
The landlord issued its Stage 1 complaint response on 27 November 2020:
1. It confirmed that the allegations and counter-allegations had been investigated by its Community Protection Team and the Police and at this time there was no further action necessary.
2. In respect of the CCTV it reiterated its previous advice that the positioning of the camera was not a concern and that further advice and guidance on camera positioning was available from the Information Commissioner’s Office.
3. With regards to the windmills, the landlord was satisfied that this did not breach the tenancy agreement and therefore it was unable to take any further action. It explained that the tenancy did not prohibit tenants from putting up decorations in the garden and its Neighbourhood teams would not investigate such matters.
4. It reiterated its advice that the resident and Tenant A should avoid antagonising each other. If there are any incidents of harassment these should be reported to the Police in the first instance.
5. The landlord acknowledged that the actions of Tenant A were causing the resident concern, but it maintained that it had acted in accordance with its policies and procedures and the actions to date had been appropriate.
The landlord re-issued its Stage 1 response to the resident on 21 December 2020 and gave her more time to consider the matter. On 30 December 2020 the resident requested escalation of her complaint. She disagreed that the windmills were decorations and described them as a ‘weapon to cause me stress by making noise and flashing lights in my living room, kitchen and bedroom’. She reiterated that they scared her cat and her birds both inside her property and in the garden. She disputed that any birds had ever roosted in Tenant A’s garden.
The resident also included details of a new issue about a high-pitched tone she can hear every night coming through the bedroom wall from next door. The resident alleged that Tenant A had a device aimed at her wall to cause her more stress. She asked that her complaint be escalated.
The landlord issued its Stage 2 complaint response on 15 January 2021:
1. CCTV – this had been investigated by the landlord and the Police and the landlord was satisfied that the camera was not infringing the resident’s privacy.
2. Windmills – it had reviewed the video footage provided by the resident of the alleged dazzling effect of the windmills when light shines on them at certain angles. It maintained that this issue was dealt with in July and it was not deemed to be a nuisance or a breach of the tenancy agreement. The landlord reiterated that the toy windmills were being used as bird deterrents, and that this was not an ASB issue. It offered the option of mediation and reiterated that it cannot prevent Tenant A from installing windmills in her garden.
3. High-pitched sound – this was a new issue that had not been raised at Stage 1 and it would therefore be investigated as a new ASB issue.
The correspondence between the Police and the landlord on 4 February 2021 showed that Tenant A was being helped by her daughter due to her ill health. The Police spoke to the daughter and attended the property and no concerns were noted in relation to possible noise. The Police noted that the daughter felt the resident’s allegations were maliciously minded.
On 8 February 2021 the ASB case was allocated to a Community Protection Officer to investigate the noise reports further. The resident was advised to keep a log of diary sheets of noise incidents and was given advice about using the Noise App to monitor and record the noise.
The resident sent the landlord ‘frequency data’ she had obtained using her own mobile app. The landlord acknowledged this but explained that it could not use this data as it was not a recognised system that it used. It referred the resident to the local authority Environmental Health (‘EH’) team to apply for Noise Recording Equipment (‘NRE’) to be installed. As for the allegations that Tenant A was controlling the sound remotely, the landlord said that it had no evidence of this. It reassured the resident that it would be carrying out unannounced spot checks at the property to try and witness the sound.
On 9 February 2021 the referral was made to the EH team for ‘high frequency’ NRE to be installed.
On 10 February 2021 the landlord confirmed that it would work with the EH team and the Police and they will be making unannounced visits. It also offered the resident support via a Victim Support Officer, which the resident accepted.
On 12 February 2021 the landlord updated the resident and said that the Police had advised it that they had spoken to Tenant A and her daughter and they were satisfied that there were no devices being used to transmit any noise either at the property or remotely, and that they would not be taking any further action. The landlord confirmed that in light of the lack of evidence it could not take any further action against Tenant A at this stage about the noise complaint.
The correspondence between the landlord and the Police on 15 February 2021 showed that the Police had reviewed the history of incidents between the resident and Tenant A to see if anything else could be done to help the situation. It acknowledged that most of the incidents were of a relatively minor nature (e.g. damage to plants) but there had been no evidence that either party had breached their tenancy agreements, so it could not pursue any enforcement action against either party.
The resident was advised to keep a log of diary sheets which is said it would forward on to the EH team in relation to the request for NRE to be installed.
The landlord’s records note that on 25 February 2021 the EH team wrote to the resident and Tenant A about its involvement. The landlord also forwarded the resident’s noise recording clip to the EH team for review. The landlord also agreed that the clip did appear to show a buzzing sound during the day and it said it would visit her in the afternoon.
The landlord visited the resident on 25 February 2021 and its noted show that the resident told the officer that she could hear the sound, but the officer stated that she could not hear the sound the resident was referring to. The garden-related issues were also raised at this visit and the landlord confirmed that these issues had already been addressed and the focus was now on the sound complaint.
On 22 March 2021 the resident informed the landlord that she wanted her complaint escalated further and she wanted the landlord to order Tenant A to remove the windmills from the fence. The resident also updated this Service at the same time and said that the EH team were due to install a sound recorder but that as soon as Tenant A realises this, ‘she will not send the noise from her laptop in [a different location] to her place here’.
On 7 April 2021 the landlord issued its final complaint response:
1. Windmills – in respect of the windmills it reiterated that the flashing only occurs sporadically when the sun catches the windmills’ reflection at a certain angle. It acknowledged that the resident felt that the windmills were a nuisance, but it disagreed and stated that there was a difference of opinion, but that there was no breach of tenancy agreement by the neighbour in erecting the windmills. It also urged the resident to consider mediation.
2. It explained that the tenancy agreement did not prohibit the display of garden ornaments within the boundary of the property. It was satisfied that the windmills were a deterrent for birds and they did not constitute a nuisance.
3. Damage to plants and ornaments – it said that any future incidents of this nature should be reported to the Police.
4. High-pitched sound – it acknowledged the resident’s concerns about a high frequency sound coming from the neighbour’s bedroom through into her bedroom and living room. It said that she should continue to report this and it would be investigated. It noted that the EH team were arranging NRE to be installed.
5. Conclusion – it concluded that the appropriate actions had been taken to address the resident’s complaints and no maladministration had been found. On the basis of the present evidence there was no further action that could be taken, and as such, the complaint would not be reviewed at Stage 3 by its Review Committee.
The Ombudsman understands that on 29 April 2021 the EH team installed the NRE. This was then removed on 4 May 2021. On 20 May 2021 the EH team wrote to the landlord and said that the equipment did not up the sound that the resident was complaining about. It said that it was possible that the sound may be of such a low frequency that it isn’t being picked up by the NRE. It suggested that the only way to evidence the sound would be via a witness at the property.
The landlord updated the resident of the EH findings and discussed whether someone could stay with the resident to witness the sound. On 1 June 2021 the resident informed the landlord that another neighbour had been to her property and he could hear the sound too. On 7 June 2021 the records show that the landlord had been unable to contact this neighbour and it reiterated its position that without strong evidence of a breach, it could not take any further action.
The landlord’s records show that on 10 June 2021 it spoke to the neighbour who had allegedly witnessed the noise. The notes show that this neighbour said he was partially deaf, but he could hear a beeping noise, but that it would not bother him. He also suggested to the resident that she may have tinnitus, which the resident strongly denied.
On 16 June 2021 the landlord visited Tenant A but no sound was witnessed and Tenant A denied having any alarms or anything else that could be making a beeping sound. The landlord then wrote to the resident to confirm that it had ‘exhausted all pathways in regard to the noise you are experiencing and unfortunately cannot find the cause of the issue’.
On 17 June 2021 the landlord confirmed that the Police had attended Tenant A’s property and they had reported back that no noise was heard during their visit and they did not find any noise generating equipment. The landlord explained that it had used NRE and it had made unannounced visits but the cause of the sound had not been established. It said that it would investigate further if any further evidence came to light.
The landlord’s records show that on 21 June 2021 the Police had confirmed that it had exhausted its efforts in regard to the noise issue and it was not able to do anything more. It suggested that the resident may benefit from further external support from the local authority.
On 26 June 2021 the resident updated this Service and said that she had discussed the matter with the Police and they were of the view that there was no evidence of harassment and no evidence of a high-pitched sound being emitted from next door or remotely from elsewhere by her neighbour. The resident remained unhappy with the EH team, the Police and the landlord.

Assessment and findings

It is clear from the resident’s submissions that she has been distressed by the ongoing dispute with her neighbour and she was clearly angry and frustrated about the landlord’s handling of the matter and what she felt was its lack of empathy and action. The resident’s feelings are acknowledged, and the Ombudsman accepts that dealing with such situations on an everyday basis would no doubt have been stressful for the resident.
However, it must be made clear that the purpose of this report is not to investigate the actual ASB itself, or Tenant A’s actions, or to assess the credibility of the reports made by the resident. The Ombudsman’s role is to consider the landlord’s response to the reports it received, and to the formal complaint, and consider whether its response was reasonable in all the circumstances of the case, and in accordance with its policies and its obligations to the resident.
With regards to the resident’s comments about the impact of the ASB on her mental health, this has been duly noted. However, it is beyond the remit of the Ombudsman to reasonably determine a causal link between the landlord’s actions (or lack of) and the deterioration of the resident’s health. The Ombudsman has therefore made no comments in relation to this, and should the resident wish to pursue this matter, she would need to obtain her own legal and medical advice in this regard.
The resident has reported similar allegations continuously over a long period of time. Whilst the resident’s dissatisfaction with the landlord is duly noted, the report will not be addressing each and every specific issue or incident. Rather, the Ombudsman has carefully considered all the available evidence and the report will take a view on the landlord’s overall handling of the matter.
Looking now at the key issues, the main area of complaint is with regards to the reports of what the resident describes as harassment by Tenant A. This has taken the form of low-level neighbour disputes about overhanging plants on the shared fence; Tenant A’s use of CCTV cameras; damage to garden ornaments; and Tenant A putting up plastic windmills on the shared fence as a bird deterrent. There were also allegations that Tenant A was deliberately omitting a high-frequency sound into the resident’s property to cause her distress.
It is clear from the records that the neighbour dispute issues, in particular about the garden, have been ongoing for a long time and the evidence shows there have been numerous reports made by the resident. These reports must be viewed in the context of a history of allegations and counter-allegations of ASB between the resident and Tenant A. It is clear from the evidence that the relationship between the parties had become very strained. The landlord is required to ensure that it is fair to both parties and that it takes all allegations of ASB seriously, while bearing in mind the nature of the ASB and the history of the case and both parties’ support needs.
Taking an overall look at the landlord’s handling of the garden-related issues, it has evidenced that it responded reasonably and proportionately to these reports and it investigated and addressed them appropriately. It explained that Tenant A had the right to cut back any plants that were overhanging on her side of the fence. As for the damage to the ornaments, and the altercation between the resident and Tenant A, as there was no independent evidence to substantiate either party’s version of events, this had been referred to the Police and it was appropriate for the landlord to wait for the Police advice before considering any further action.
The difficulty in such situations, as acknowledged by the landlord, is that where there are two differing versions of events, and no independent evidence to substantiate each parties version, then the landlord is not able to take action. In this case, the Police considered the matter and concluded that they would not be taking any further action against either party. As such, it was reasonable for the landlord to take this into account when considering what it could do further.
With regards to the issue of the plastic windmills that were put up by Tenant A on the fence, the resident has said that the flashing light effect and the noise caused by these windmills was a disturbance to her and her pets. The landlord acted appropriately by addressing the resident’s concerns and acknowledging how she felt about the windmills. However, the landlord was correct in saying that the installation of bird deterrents (such as the windmills) was not a breach of the tenancy, and whilst the resident may feel that it was a nuisance, the landlord disagreed and considered them to be garden ornaments/decoration.
The resident has repeatedly said that she feels that Tenant A has deliberately put up the windmills to antagonise her and cause her distress. The available evidence does not support this conclusion. The evidence shows that the landlord took into account that the resident had a lot of bird feeders in her garden and that Tenant A did not want any birds to be roosting/nesting in her garden and making a mess. Hence, she asked to put up deterrent spikes on the fence, which the landlord did not think was appropriate and it asked her to consider alternative deterrents. The Ombudsman is satisfied that the landlord’s response to this issue was reasonable and appropriate. Furthermore, the landlord acted appropriately by offering the resident the option of mediation, which can often help diffuse neighbour disputes such as this.
With regards to the high-pitched sound complained about by the resident, the landlord responded appropriately by advising the resident to collate diary sheets and to make use of the EH noise team and to report any late-night disturbances to the Police, which were all reasonable responses.
It acted appropriately by speaking with the neighbour on several occasions and liaising with the Police. It also carried out its own unannounced visits to the property to try and witness the sound for itself.
It also referred the resident to EH for noise recording equipment to be installed. The results of the noise monitoring were discussed with EH and it was concluded that there was insufficient evidence to pursue any formal action against Tenant A as the sound being complained about was not picked up by the recording equipment. The landlord explained clearly to the resident why it was not able to take any further action without strong evidence of a tenancy breach.
The resident has said that she had provided evidence in the form of another of her neighbour’s having witnessed the sound. The landlord acted appropriately by speaking with this neighbour and visiting the property again but it did not hear the sound itself. Nor did the Police, who also visited the property.
The landlord’s decision not to take action against Tenant A is supported by the information provided by the Police and the fact remains that there is insufficient evidence of the sound and/or that Tenant A was the cause of any such sound. The landlord acted appropriately by acknowledging the resident’s concerns and signposting her to other support agencies. It investigated her concerns appropriately and concluded that it did not have enough evidence to show ASB and/or any other breach of the tenancy agreement by Tenant A. There is also no evidence to suggest that Tenant A was deliberately using some form of equipment to emit a sound remotely to the property to antagonise or harass the resident.
In its final complaint response the landlord rightly acknowledged that, whilst the evidence did not presently support or justify any formal action against Tenant A, it did highlight the potential benefit of mediation, which can often help in ongoing situations such as this.
From what can be seen, the landlord has acknowledged the resident’s concerns and it has demonstrated that it has investigated those concerns appropriately. The resident may well want stronger action to be taken against Tenant A, but the Ombudsman is satisfied that the landlord has appropriately evidenced that it has taken into account all the information and its subsequent decision, and the rationale for not taking any further action against the neighbour, was reasonable in light of the available evidence.
The resident is unhappy with the landlord’s decision and has said that she does not feel supported by the landlord. The resident’s concerns are duly noted however, the landlord is not being unreasonable when it says that it cannot take tenancy enforcement action against the neighbour unless it has sufficient evidence to do so. There is no evidence to suggest that the landlord disbelieved the resident in any way, or that it did not take her concerns seriously. But overall, it has shown that its handling of the ASB reports was reasonable and that it acted appropriately in its handling of this matter.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to the resident’s reports and concerns about nuisance and anti-social behaviour (‘ASB’) by a neighbour.

Reasons

The Ombudsman is satisfied that the landlord duly acknowledged the resident’s concerns and it has demonstrated that it responded appropriately to the various reports and it acted in a reasonable manner and in line with its ASB policy. Looking at the available evidence, the Ombudsman is satisfied that the landlord’s overall handling of the reports was reasonable and its decision not to take action against the neighbour was appropriate, and the steps it took were proportionate to the nature of the reports.