Sandwell Metropolitan Borough Council (202104914)

REPORT

COMPLAINT 202104914

Sandwell Metropolitan Borough Council

13 May 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 the landlord’s response to the resident’s reports of antisocial behaviour (ASB) from her neighbour, including:
   1. parking outside her property;
   2. noise nuisance;
   3. blocking the shared pathway to her garden;
   4. her subsequent request for a privacy fence;
   5. keeping animals.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
3. Paragraph 39(a) of the Housing Ombudsman Scheme notes as follows:

39. The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion:

a) are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale.

4. In or around October 2021, the resident reported that her neighbour was keeping chickens on their property. She subsequently expressed her concerns about hygiene and rodent infestations caused by keeping chickens. She also requested that the landlord make variations to her neighbour’s tenancy agreement to add restrictions relating to keeping animals.
5. It is not evident, however, the landlord has acknowledged the resident’s reports as a formal complaint, nor that it has provided either a stage one or stage two response under its internal complaints procedure.
6. After carefully considering all the evidence, in accordance with paragraph 39(a) of the Housing Ombudsman Scheme, the complaint relating to the neighbour keeping animals at their property is outside of the Ombudsman’s jurisdiction.
7. If the resident makes a formal complaint, progresses it through the landlord’s internal complaints procedure and is dissatisfied with the outcome, she may then be able to refer the complaint to this service.

Background and summary of events

Background

8. The resident has been a secured tenant at the property of the landlord since 24 August 2020. The landlord is a local authority.
9. The landlord operates a two stage complaints policy.
10. The landlord operates an ASB policy. The policy notes that the landlord will respond within five working days to reports of noise, misuse of shared areas, and nuisance from vehicles. The policy further notes that the landlord seeks to prevent ASB by using an early intervention approach. This includes giving verbal and written warnings, and also arranging mediation. Legal action may also be taken if required.

Summary of events

11. On or around 15 February 2021, the resident reported to the landlord that her neighbour was parking outside of her property, which meant she was unable to leave her rubbish bins outside of her property. Instead, she had to wheel them down the street to be collected. She additionally noted that her garden only had a ‘trellis’ fence between her garden and her neighbour’s garden, which allowed her neighbour to see through. She advised that the neighbour stared at her in an intimidating way, and that she was concerned to be seen leaving her property by her neighbours. She enquired as to whether CCTV could be installed at her property. She further reported that her neighbour left a motorbike in the shared pathway to the gardens, which made access to the garden difficult. Finally, she reported that her neighbour played loud music late at night.
12. Following the resident’s reports, it is evident that the landlord provided her with ASB incident diary sheets. It is also evident that it advised the resident that as the road outside her property was a public highway, it was unable to prevent her neighbour from parking there.
13. On 8 March 2021, the resident reiterated her concerns about the lack of privacy in her garden due to the trellis fence. She subsequently requested that the landlord install a tall, panelled fence between the properties.
14. On or around 24 March 2021, the resident raised a formal complaint about the landlord’s handling of the reports of ASB, noting that its housing officer had not taken action following her reports, nor had the landlord replied to her request regarding the fence.
15. On 30 March 2021, the landlord provided its policy regarding the resident’s request for CCTV to be installed at her property. It is evident that subsequent discussions between the parties led to the landlord refusing permission for CCTV on the basis that the neighbour’s property would be in view of the cameras.
16. On the same date, the landlord provided its stage one response. It apologised that it had not followed up the resident’s reports as quickly as it would have liked and advised that the COVID-19 pandemic had caused delays to its services. It advised that its housing officer would visit the neighbour that day and would remind the neighbour of the importance of keeping the shared pathway clear. It advised that its repair team would also visit the property to assess the fence, but that the resident and her neighbour could also mutually agree on installing a more private fence at their own cost. It reiterated its advice regarding the on-street parking, and also advised that it could arrange mediation between the parties. Finally, it also provided a link to its ‘noise app’ so the resident could provide evidence relating to her reports of loud music.
17. On 14 April 2021, the resident reported that as a result of the landlord’s visit to her neighbour, her relationship with the neighbour had worsened. She also reported that although her neighbour no longer stored their motorbike in the shared pathway, they now stored their shoes there, which still made access difficult. She further noted that the landlord’s repair team had visited to assess the fence, but that her neighbour had responded in a hostile manner towards the operatives. On 15 April 2021, the resident also advised she did not wish to pursue mediation with her neighbour.
18. The landlord has provided this service with copies of its communications with the resident’s neighbour. The communications show that the landlord provided assistance to the neighbour to arrange for a shed to store their motorbike. The landlord also offered to replace the first panel of the fence with a privacy fence, however, the neighbour noted they had installed the current fence at their own expense and declined the landlord’s offer.
19. The landlord has also provided this service with copies of its own internal communications. Following the landlord’s repair team visiting the property to assess the fence, its operative noted that the neighbour advised that she had already informed the landlord she did not want the fence to be altered. The operative further noted that they “didn’t consider [their] tone or behaviour to be abusive or threatening and [they] didn’t swear at them.”
20. The landlord provided its stage two response on 16 April 2021. It advised that its housing officer would raise the issue of the shoes kept on the pathway with the neighbour. It noted the resident’s comments that its visit had worsened her relationship with her neighbour but advised that given that the resident had reported hostility from neighbour prior to its intervention, it considered the poor relationship to be “likely due to differences in your lifestyle choices.” Regarding the fence, the landlord advised that its responsibility was only to provide the initial six feet of fencing between properties, and that beyond this, the fencing was the responsibility of residents. It advised it had met its responsibility as the initial six feet was a solid brick wall. It reiterated that the resident could arrange a new privacy fence with her neighbour.
21. Following the stage two response, the resident made further reports of ASB relating to the neighbour keeping animals at their property, as discussed above. It is also evident that the resident has been in communication with the local authority’s environmental health team regarding her concerns about noise nuisance. Additionally, the resident has reported to this service that she has received hostile threats in writing, which she believes has come from her neighbour, and that she has reported these threats to the landlord and the police.

Assessment and findings

22. ASB case management is a crucial aspect of a landlord’s service delivery. Effective use of a robust ASB procedure enables the landlord to identify appropriate steps to resolve potential areas of conflict, improve landlord/tenant relationships and improve the experience of tenants residing in their homes.

Parking

23. Following the resident’s reports that her neighbour’s parking was preventing her from leaving her bins outside her property, it is evident that the landlord provided her with advice that it was not able to prevent her neighbour from parking on the road as it was a public highway. It also appropriately reiterated this advice in its stage one response. While not the outcome the resident was looking for, it was reasonable for the landlord to have measured her expectations as to what action it could take.

Noise

24. Following the resident’s reports of ASB, it is evident that the landlord provided incident diary sheets to help the resident record evidence of the noise and intimidating behaviour she was experiencing. This is common practice and in line with what the Ombudsman would expect.
25. As part of its stage one response, the landlord also referred the resident to its noise app, which she could use to record noise incidents. In the absence of evidence for it to consider at that time, it was reasonable for the landlord not to have referred to noise in its stage one response. It would have been helpful, however, to have reassured her in its stage one response that it would consider any evidence submitted in the future and to have explained what action it could take. This alone would not constitute service failure, however.
26. It is evident from the correspondence provided to this service that the resident has been in contact with the local authority’s environmental health team regarding investigating ongoing noise nuisance. The Ombudsman considers this to be an appropriate step in investigating noise nuisance and in line with best practice.
27. A recommendation has been made below that the landlord contact the resident to clarify its position regarding her ongoing concerns about noise from her neighbour, and its position on what action it may take following the outcome of the environmental health team’s investigation.

Shared pathway

28. The landlord’s ASB policy notes that it will seek to respond within five working days to reports of ASB such as those made by the resident.
29. The resident noted a number of concerns in her report in addition to the noise and intimidating behaviour, such as the use of the shared pathway by her neighbour for the storage of their motorbike and the installation of a privacy fence. These reports could have been investigated immediately by the landlord and did not require further evidence in the form of incident diary sheets. In its stage one response, the landlord noted that COVID-19 had led to delays in it delivering its service. The Ombudsman’s position is that delays caused by COVID-19 during this period were often unavoidable, however, the Ombudsman would expect a landlord to have communicated effectively to residents where such delays were likely.
30. Given that the storage of the motorbike and the installation of a privacy fence were not emergencies, it was reasonable for the landlord to have investigated this outside of the timeframes in its ASB policy, however, it is not evident that the landlord communicated this to the resident. This led to her frustration and caused her to expend time and trouble in chasing it up. While the landlord appropriately apologised for its delay and provided an update in its stage one response, its lack of effective earlier communication amounted to service failure in the circumstances. An amount of compensation of £50 is therefore appropriate to reflect the resident’s time and trouble.
31. The Ombudsman notes that the action a landlord can take must be proportionate to the impact of the ASB and does not always extend to what a resident may be seeking. In instances of ASB where a neighbour is misusing a communal area, the Ombudsman considers it reasonable in the first instance to seek to remind the neighbour of their responsibilities.
32. Following the resident’s reports of the motorbike being stored along the shared pathway, the landlord appropriately advised that it would explain to the neighbour the importance of keeping the shared pathway clear. Its advice that it would repeat this step following the further reports of shoes left on the pathway was also reasonable and proportionate in the circumstances and in line with what the Ombudsman would expect.

Fence

33. As discussed above, the landlord’s initial failure to communicate that its response would be delayed amounts to service failure in this instance. The amount of compensation referred to above relates to the complaint about both the pathway and the fence request.
34. The resident’s tenancy agreement does not refer to the boundaries between gardens, nor does the landlord’s tenancy handbook give information about who is responsible for fences.
35. Following the resident’s request that the existing trellis fence be replaced with a privacy fence, the landlord appropriately advised it would assess the fence to determine if any works could be done to address her concerns about privacy. It would have been helpful at this stage to have measured her expectations about only providing six feet of fencing, however, this alone would not constitute service failure.
36. It is evident that the landlord’s operatives attended the property and determined that the existing trellis fence was in a good state of repair, and that the initial six feet of the divide between the gardens was a brick wall. While it did not consider itself to be responsible for the remaining length of the fence, the landlord nevertheless attempted to arrange for the first panel of fencing to be replaced with a privacy fence. As noted above, it is not evident that the landlord is responsible for the fence and so this offer was above and beyond what it was required to do. Given that it was the landlord’s position that both the resident and her neighbour had to agree to amend the fence, and that the neighbour refused the landlord’s offer, it was reasonable that it did not pursue the installation of the new fence. It would have been helpful, however, had it advised the resident of these attempts to install a fence as this may have informed how she approached arranging a new fence with her neighbour.
37. Following the resident’s reports that her neighbour had acted aggressively towards the landlord’s operatives, it is evident that the landlord took appropriate steps to investigate these concerns by interviewing its operatives, who disputed the resident’s reports. Again, however, it would have been helpful had the landlord provided the resident with the outcome of this investigation, which it did not do.
38. In summary, aside from its initial delayed communication, the landlord’s investigation of the resident’s request was reasonable, and it made reasonable attempts to assist the resident by offering to the neighbour to install a panel of privacy fence. It also appropriately investigated the resident’s concerns about the behaviour of her neighbour towards its operatives, and although it could have provided more detail regarding these steps in its formal responses, this would not amount to service failure. Finally, it has been clear on its position that it is not responsible for the fence and gave appropriate advice to the resident about arranging with the neighbour for a new fence.
39. Additionally, in its stage one response, the landlord appropriately provided information regarding the resident’s request for CCTV, and its subsequent decision not to install CCTV was reasonable given the privacy concerns of the camera unavoidably capturing the neighbour’s property.
40. The resident has also advised that she considers the landlord’s discussions with her neighbour to have worsened their relationship. While this may have been the result of the landlord’s discussions with the neighbour, it was nevertheless reasonable for the landlord to have raised the resident’s concerns with the neighbour and it is not evident it intended for this to worsen the parties’ relationship. It was also reasonable for the landlord to have noted in its formal response that the resident had already reported that her relationship with the neighbour was poor, which was not solely the result of its intervention.

 

 

Determination (decision)

41. As noted above, in accordance with paragraph 39(a) of the Housing Ombudsman Scheme, the complaint relating to the neighbour keeping animals at their property is outside of the Ombudsman’s jurisdiction.
42. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of the complaints regarding its response to the resident’s reports concerning:
    1. her neighbour blocking the shared pathway to her garden;
    2. her subsequent request for a privacy fence.
43. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the complaints regarding its response to the resident’s reports concerning:
    1. her neighbour parking outside her property;
    2. noise nuisance.

Reasons

Parking

44. The landlord gave appropriate advice regarding the ability for the neighbour to park on a public highway, noting it was unable to take any further action, which was reasonable in the circumstances.

Noise

45. Given that the resident raised concerns about noise, the landlord appropriately provided her with noise diary sheets and referred her to its noise app. It is not evident that resident provided any additional evidence in relation to noise during the period of the complaint and so it was reasonable that the landlord did not address this in its formal responses.

Shared pathway

46. The landlord took appropriate action to raise this concern with the neighbour, which was proportionate in the circumstances.
47. While it was reasonable that its initial response was delayed due to COVID-19, the landlord failed to communicate there would be a delay to the resident, which caused her distress and inconvenience.

 

Fence

48. The landlord appropriately investigated what it could do to assist with the resident’s request and offered to replace the first panel, which while refused by the neighbour, was above and beyond the scope of the landlord’s responsibility.
49. While the landlord’s formal responses failed to set out the steps it had taken with the neighbour, and its investigation of the resident’s reports about the neighbour’s behaviour towards its operatives, it correctly set out its position regarding responsibility for the fence so as to measure the resident’s expectations.
50. As with above, however, the landlord failed to initially advise the resident its response would be delayed, which amounted to service failure.

Orders and recommendations

Orders

51. The Ombudsman orders the landlord to pay compensation of £50 (total) for any distress and inconvenience caused to the resident by its failure to initially respond to her complaints regarding the replacement fence and the shared pathway.
52. This amount must be paid within four weeks of the date of this determination.

Recommendations

53. The landlord to contact the resident within four weeks of the date of this determination to clarify its position regarding her ongoing concerns about noise from her neighbour, and its position on what action it may take following the outcome of the environmental health team’s investigation.