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Nottingham City Council (202101446)

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REPORT

COMPLAINT 202101446

Nottingham City Council

31 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

  1. The complaint is about:
    1. The landlord’s response to the resident’s reports of antisocial behaviour (ASB).
    2. The landlord’s decision not to compensate the resident for the cost of erecting a fence.

Background

  1. The resident is a tenant of the landlord and her neighbour is a private resident.
  2. The resident has said that she has experienced ASB from her neighbour for seven years. While this is noted, there are limits to how far back an investigation by the Ombudsman can go. This is because the Ombudsman expects that a resident’s dissatisfaction with a landlord’s actions or inaction is raised with it in a reasonable period, which would normally be within six months of the matters arising. While it is evident from the landlord’s records that the resident reported ASB in 2019, there was a long gap in the reports between August 2019 and June 2020. This investigation has therefore focussed on the landlord’s handling of the ASB reports received from June 2020 onwards.
  3. On 11 June 2020 the resident reported her neighbour’s noisy pipes to the police, who arranged for the landlord to inspect them. On 18 August 2020, the resident was in dispute with her neighbour over the boundary between their properties as she wanted to erect a fence, despite the neighbour being responsible for maintaining that boundary.
  4. On 24 August 2020, the landlord opened an ASB investigation in response to the resident’s report of her neighbour video recording her children while in the garden. It carried out a risk assessment and formed an action plan which confirmed that it would liaise with the police and speak to the neighbour, with the resident to report any further incidents to the police. The landlord confirmed to the resident on 22 September 2020 that it had spoken to the neighbour and warned them that police action may follow if further reports were received. It wrote to the resident on 13 November 2020 to close the ASB case, following a call with her in which she confirmed that there had been no further incidents.
  5. The resident raised a formal complaint with the landlord on 20 April 2021 in which she voiced her dissatisfaction with its handling of her reports of ASB. She said that she had experienced ASB from her neighbour for seven years but it had not resolved this and she had needed to erect the fence because of this. The resident said that the landlord’s staff had been uncommunicative and unhelpful. The landlord issued a stage one complaint response to the resident on 26 April on in which it said that it had no enforcement powers over a private resident. It asserted that it had made efforts to resolve her ASB issues and directed her to the police for future issues.
  6. The resident subsequently escalated her complaint. The landlord’s final stage complaint response of 20 May 2021 noted that the resident continued to unhappy with the following:
    1. The stage one response said that it could not investigate ASB from a private resident which contradicted previous advice given to her.
    2. The landlord had not dealt with her reports of ASB correctly.
    3. Its staff had been unhelpful, “rude and abrupt”.
    4. The resident wanted compensation for experiencing seven years of ASB from her neighbour.
    5. Her having to erect fencing at her own expense.
  7. The landlord clarified that it could, in fact, take injunctive action against private residents if there was evidence of ASB and apologised to the resident for this error in its stage one response. It noted that there was no ASB case currently open for her and had not received any recent contact from her; it advised it had since contacted the local authority’s Community Protection Team on her behalf and had “committed” to visiting the neighbour. The landlord proposed to open a new ASB case and provide monthly updates to the resident on the progress of this.
  8. The landlord said that it could not offer compensation for the actions of the neighbour as third party and suggested seeking legal advice for making a claim against them. It relayed that its staff member apologised if the resident found her to be “rude or abrupt” and confirmed that they had offered contact information for other who may be able to help with her ASB reports alongside offering to provide her with assistance. The landlord confirmed that the resident had approached it in August 2020 about erecting a fence on the boundary between the properties and it was unable to do this as the boundary belonged to the neighbour. She since erected the fence herself at her own cost after negotiating with them.
  9. The resident contacted the Ombudsman on 1 June 2021 to state that her continued dissatisfactions were that she believed the landlord could have taken action against her neighbour but did not do so. She disputed the level of contact she had made with it about ASB and said that the boundary between herself and her neighbour belonged to her. On 17 July 2021 the resident said that her desired resolution to the complaint was for the landlord to compensate her for her experience of ASB and for the cost of the fence. She also wanted the landlord to admit that it had not upheld its responsibility to take action against her neighbour for ASB.

Assessment and findings

Policies and procedures

  1. The landlord’s tenancy agreement with the resident confirms that it is responsible for the repair and maintenance of the structure and exterior of the property. This agreement also states that residents have the right to make improvements to their properties at their own expense which would remain their responsibility to maintain.
  2. The landlord’s ASB, domestic abuse and hate crime policy confirms that it considers conduct which is capable of causing annoyance to any person in their occupation of residential premises to constitute ASB. This includes noise and hate related incidents. When it receives a report of ASB, it is to carry out a risk assessment, create an action plan, investigate the report and refer to partner agencies if appropriate.
  3. The landlord’s discretionary compensation policy confirms that it will consider offering discretionary compensation when it had not acted fairly or properly, failed to meet its service standards or a claim for an essential item arises through its acts or omissions. This does not cover compensation for improvements or for events caused by a third party.

The landlord’s response to the resident’s reports of ASB

  1. It must be clarified that the role of the Ombudsman is not to determine whether ASB actually occurred, or to mediate in ASB disputes. It is the role of the Ombudsman to determine whether the action taken by the landlord in response to reports of ASB were reasonable and in accordance with its obligations in the law and its policy.
  2. When the landlord received the resident’s report of her neighbour video recording her children in the garden on 24 August 2020, it acted in accordance with its ASB, domestic abuse and hate crime policy, by interviewing the resident, carrying out a risk assessment, producing an action plan and investigating the reports. The landlord subsequently discussed the reports with the neighbour, who denied the allegations, and it warned the neighbour that any further reports may be dealt with by the police.
  3. The landlord had no legal relationship with the neighbour as there was no tenancy agreement between the parties, and therefore, it was limited in terms of the action it could take against the neighbour. While the landlord was able to consider taking injunction action against the neighbour, the evidence does not show that this would have been a proportionate step to take at this time. This is because evidence of significant ASB would be required to support an injunction claim, but only a limited number of recent reports had been received from the resident and there was no corroborating evidence to support the reports. Furthermore, the resident subsequently confirmed that there had been no further incidents of ASB and it was therefore reasonable for the landlord to close the ASB case in November 2020.
  4. The resident requested compensation for her experience of the ASB which was denied by the landlord. In accordance with the landlord’s discretionary compensation policy, it had no obligation to offer compensation for the actions of a third party. However, it would be appropriate for the landlord to offer compensation where there was an identified failure in its provision of a service or if it acted unreasonably. As set out above, the landlord responded reasonably in response to the resident’s ASB reports and therefore its decision not to offer compensation was reasonable and in accordance with its policy.
  5. It is noted that the resident raised concerns about the handling of her Freedom of Information request in her formal complaint to the landlord. Such matters fall within the jurisdiction of the Information Commissioner’s Office, and therefore the resident should contact this organisation if she wishes to pursue this matter further.

The landlord’s decision not to compensate the resident for the cost of erecting a fence

  1. As confirmed by the tenancy agreement above, the landlord has a responsibility for repair and maintain the property. This repairing obligation does not extend to new elements to a property which did not pre-exist at the start of the tenancy. It is acknowledged that the landlord and resident do not agree over which party (the neighbour or the landlord) is responsible for the boundary. Nevertheless, the addition of the fence to the property constituted an alteration or improvement and the landlord had no obligation to provide this.
  2. While it was understandable that the resident may have wished to install the fence given the issues she has reported with her neighbour, there is no evidence that this was at the landlord’s instruction, nor that the fence became necessary due to any failure in the landlord’s handling of the ASB. Therefore, it was reasonable, and in accordance with the compensation policy, for the landlord not to offer compensation for the resident’s costs in installing the fence.

Determination

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in:
    1. Its response to the resident’s reports of antisocial behaviour (ASB).
    2. Its decision not to compensate the resident for the cost of erecting a fence.