Lambeth Council (202115626)

REPORT

COMPLAINT 202115626

Lambeth Council

24 November 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 concerns:
1. The landlord’s response to ASB reports up to 2020.
2. The landlord’s handling of the neighbour’s eviction following his conviction of a crime.
3. The landlord’s handling of the request for an urgent injunction.
4. The related complaint.

Jurisdiction

The resident made approximately 100 noise reports during 2018 and 2019 against her neighbour regarding him playing loud music. The resident raised a formal complaint with the landlord on 30 December 2019 to which the landlord provided a stage one response on 31 January 2020.
The resident subsequently reported to the landlord on 23 March 2020 and 3 April 2020, that the neighbour’s behaviour had escalated into abusive language and harassment/ threats of violence.
On 20 April 2020, the landlord provided a stage two final response.
Following this, the neighbour was arrested and charged in relation to homophobic and transphobic harassment against the resident although the exact date of his arrest is unclear from the available evidence. The police immediately released him on bail pending a decision from the Crown Prosecution Service.
On 22 July 2020, the landlord attended court and obtained an injunction against the neighbour prohibiting him from: committing or attempting to commit acts of violence; threatening and/or using abusive/homomorphic/transphobia against the resident and; communicating or attempting to communicate with the resident, which was to remain in force until 22 July 2021.
In August 2020, the neighbour was arrested and on 19 August 2020 the Magistrate’s Court jailed the neighbour for breaching bail conditions.
Sometime in the summer of 2020 the landlord took steps to evict the neighbour which however its attempts were unsuccessful.
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.
Paragraph 42 of the Housing Ombudsman Scheme state we may not consider complaints which, in our opinion:
1. were brought to the Ombudsman’s attention normally more than 12 months after they exhausted the member’s complaints procedure – paragraph 42(b).
2. were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising – paragraph 42(c).
There is no evidence of the resident bringing her complaint that exhausted the landlord’s complaint procedure on 30 April 2020, to the Ombudsman within 12 months. Further, there is no evidence of resident raising a formal complaint with the landlord in regards to any subsequent events in 2020 prior to her raising a formal complaint with the landlord on 25 June 2021.
Therefore, after carefully considering all the evidence, in accordance with paragraphs 42(b) and (c) the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
1. The landlord’s response to ASB reports up to 2020.

Background

The resident is a leaseholder. The property is a ground floor one bedroom flat in a four-storey building. The original lease with the landlord commenced with a third party which was later assigned to the resident.
The resident’s neighbour who is the subject of the resident’s ASB complaints is the landlord’s (secure) tenant. The landlord’s records show that the neighbour has mental health conditions and has a care worker.

Summary of events

On 15 June 2021, the resident contacted the landlord to advise that the neighbour had been convicted of causing her to fear violence (transphobic and homophobic threats and gestures over several months) by the Magistrates Court but was awaiting sentencing by the Crown Court on 16 July 2021. She asked the landlord to evict the neighbour without delay as if it waited until sentencing, he could be allowed home to the neighbouring property and she would have to leave her home becoming homeless.
The landlord contacted the police on 16 June 2021 who confirmed the neighbour’s conviction.
On 24 June 2021, the landlord contacted the police asking for the neighbour’s location as it wanted to serve the Notice Seeking Possession on him. The police replied that they did not know the perpetrator’s current location as it was the court who bailed him away from his home address.
On 24 June 2021, the resident emailed the landlord’s Tenancy Enforcement Officer (TEO) thanking him for his time that day. She said she was dissatisfied that the landlord had waited until then to find out the neighbour’s whereabouts in order to serve the notice seeking possession. She referred to the court’s “astonishment” that it had failed to secure an eviction against the neighbour despite the “overwhelming evidence” against him in regards to his “hate-fuelled threats and abuse over a very long period”. She suggested ways in which the landlord could find out his whereabouts.
On 25 June 2021, the resident sent a further email to its TEO advising she had just heard from the police that they do not know the whereabouts of the neighbour indicating the TEO had “wasted time”. She said she had not been able to reach him by phone or email and asked what his plan was to deal with the neighbour who was “inexplicably” still its tenant. She asked for the poor service to be escalated as a complaint.
On 25 June 2021, the resident also contacted her MP regarding perceived delays by the landlord in initiating legal proceedings to evict the perpetrator following his conviction.
On 28 June 2021, the landlord served a Notice Seeking Possession (NSP) on the neighbour (due to expire on 2 August 2021).
On 28 June 2021, the resident’s partner contacted the landlord reiterating that the neighbour had been convicted of harassing and threatening the resident and that they were worried about him being allowed to return home on 16 July 2021 to resume his “campaign of hatred and harassment” against the resident. She sent a further email the next day asked the landlord how long it would take to obtain an injunction against the neighbour.
On 29 June 2021, the landlord replied to the resident’s partner advising it had:
1. Made a safeguarding referral on the resident’s behalf.
2. Referred the case to its legal department to apply for an emergency injunction to exclude the neighbour from the property.
3. It had applied to the Magistrates court and received a copy of the certification of conviction.
4. Served a NSP on the neighbour.
It explained that it did not have the right to evict anybody from their property. To do so, it must present evidence of wrongdoing to a judge in court who then would decide whether to grant possession order based on the evidence supplied. It said it had started the legal process by serving a NSP on the neighbour. Upon its expiry, the case would be issued in court to try to obtain the possession order. If successful, an application for an eviction warrant will be made to the court before bailiffs can carry out the eviction. In the meantime, it would try to secure an injunction.
It referred to the emergency injunction with power of arrest attached previously obtained from the court on 22 July 2020 on receipt of the resident’s ASB complaints. It said due to the bail conditions imposed following the police’s subsequent arrest of the neighbour preventing him from entering her road and contacting the resident directly or indirectly, there had been no need to continue with the injunction as both served the same purpose.
On 1 July 2021, the resident’s partner contacted the landlord raising further questions about the injunction it had applied for.
On 7 July 2021, the resident’s MP wrote to the landlord on the resident’s behalf about the concerns she had outlined in her 25 June 2021 communication. They stated that the perpetrator was due to return to his home address on 13 July 2021. The MP said the resident believed the landlord’s Tenancy Enforcement Team (TET) was not doing enough to keep her safe as it was not taking the case sufficiently seriously.
On 8 July 2021, the landlord acknowledged the resident’s 25 June 2021 complaint and provided her with a copy of its response to her MP.
This response stated that its TET had taken and continued to take the matter very seriously. It reiterated the action taken as set out in its 29 June 2021 email to the resident’s partner however said its legal team had advised that as there were no new incidents since it applied for the last injunction in 2020, it could not apply for another injunction against the neighbour. It said however that there were bail conditions in place set by the criminal courts for the neighbour to keep away from the resident and the road in which she lived on so there were currently protections in place.
The landlord stated that its TEO had asked the resident if she had a copy of the certification of convicted at the point, she advised him about the conviction. It clarified that there was no expectation for her to apply to the court for one if not already in her possession. After the resident confirmed she did not have a copy, its TEO applied for and obtained a copy of the certificate from the Magistrates Court.
The landlord said that whilst it appreciated the resident wanted the neighbour evicted from the property by the time any bail conditions expire, it could not end a tenancy or take back one of its properties, without having requested for possession via the courts; only they could ultimately decide whether to grant a possession order or not. If they decide not to, it had no legal powers to evict. As stated, a NSP had already been served and upon its expiry, the case would be issued in court to try to obtain possession. If this was successful, an application for an eviction warrant would be made to the court before bailiffs could carry out the eviction. Therefore, whilst the resident had asked that further action was taken by 13 July 2021, the law would not allow for this. It said it would provide the resident with an update every two weeks going forward.
On 8 July 2021, the resident also contacted the landlord to ask for an emergency injunction by 12 July 2021 as she was expecting the neighbour’s existing court bail conditions preventing him from entering her street to end when he was sentenced on 13 July 2021.
Later on the same date, the landlord emailed the resident confirming the details of a telephone call it had with the resident that day. This confirmed amongst other things that:
1. A full response had been provided to her MP.
2. To call 999 if she felt her life was in danger.
3. Advised that if the outcome of the offence was that the court allowed the neighbour home they might put in place “structures”.
4. It did not have the right to evict anybody; all possession proceedings would have to go through the courts for a judge to decide. The date of the hearing was determined by the courts based on their availability.
5. It did not proceed with possession proceedings on discretionary grounds as it did not have enough evidence so it allowed the police to conclude with their investigations before taking steps to evict the neighbour.
6. It had served a NSP on mandatory grounds. Court proceedings could not begin until after the notice expired on 2 August 2021.
7. In response to her asking why it took its TEO so long to serve the notice, it needed to see the proof of conviction before it could serve notice on the perpetrator which it did on 28 June 2021; this was within a reasonable timeframe.
Around 10 August 2021, the resident contacted the landlord disputing its suggestion (in its response of 8 July 2021) that it applied for a certificate of conviction as soon as she had said that she did not have one.
The resident also said its TEO had told her on 24 June 2021 that an NSP could not be served as he did not know the whereabouts of the neighbour. She said that there was an established protocol for serving notices when the whereabouts of the recipient is unknown there was a delay of 6 days in following this once the landlord received the certificate.
The resident complained she had not received an update since 9 July 2021 despite the landlord committing to provide updates every two weeks.
On 16 August 2021, the neighbour was sentenced. The bail condition imposed on him prohibiting him from attending his property, was lifted.
On 16 August 2021, the resident advised the landlord that as of that morning, she was homeless and she had nowhere to go. She left her address as its team had failed to evict her neighbour- a convicted criminal with “a persistent history of homophobic and transphobic abuse against her”.
On 16 August 2021, the landlord told the resident it was sorry to learn that she was leaving her property due to the neighbour’s ASB. It referred to the previous bail condition excluding the neighbour from returning to his home. It asked if the neighbour was back at his property. It said if so, could she stay with family or friends whilst it tried to sort this out legally. It said it would provide a full response by the following day.
On 17 August 2021, the landlord sent the resident a response titled “response to your enquiries”. In response to the resident’s claim that it delayed in acquiring the certificate of conviction, the landlord stated its TEO initially sent an email to the police requesting the certificate however he was informed a few days later, that the court did not send this to the police. The TEO further requested it from the court and received it after a few days on 21 June 2021, which was sent to legal upon receipt.
Regarding the allegation about delaying with the service of the notice of possession, there was a delay in serving notice as the whereabouts of the neighbour was unknown. Information was requested from the police however they did not know the neighbour’s whereabouts. His representatives were also contacted and they mentioned they needed to seek his consent before his location could be passed to it. They came back days later saying, consent was declined. The NSP on mandatory grounds was later served on his property on 28 June 2021 and an email copy was sent to his representative. It said its TEO explored all means of service.
Regarding its promise to update the resident every two weeks, it “sincerely apologised” for not contacting her every two weeks as per its policy; an email to the police was also sent requesting an update on the case of the neighbour’s sentencing at the crown court and it had only received a response on 10 August. It acknowledged that there had been “obstacles” throughout the case, including delays in receiving requested information, partnership meetings and service of notices. The NSP on mandatory grounds was finally served on 28 June 2021 after several attempts to locate and serve a copy on the neighbour. It was doing a full analysis on this issue, the root cause, the impact, and how to prevent this from happening again and it would provide relevant training.
On 27 August 2021, the landlord issued possession proceedings.
On 10 September 2021, the landlord provided the resident with a final response explaining that the role of its complaints process is to consider if the landlord had undertaken its duties in accordance with policy and procedures. It stated that it had found no evidence that officers have not adhered to the appropriate policies when handling the resident’s concerns and said that it had found no fault or discrimination that had caused her injustice.
It set out its actions taken as advised in its previous responses. In relation to her urgent notice injunction application, there were insufficient grounds for this as no evidence had been received against the neighbour since the last injunction expired in January 2021. She said this was because of a court bail condition imposed on him which prohibited him attending his tenancy. Its understanding was that the only recent complaint was the resident seeing the perpetrator in her local park. The resident said the neighbour had stayed about 5 metres away and did not speak to her directly only speaking about her to a third person.
It was sorry to hear that she felt that the actions of its TEO had not taken her safety concerns seriously and that his actions had delayed proceedings. As a precaution it had requested that the officer’s manager speak to him about his customer service responsibilities and that he undertakes further equality and diversity training.
Regarding possession proceedings, these were still going ahead. It had no rights to repossess a property or evict anyone except through the court. Neither did it decide when cases would / should be heard as this is determined by the court. Because of this, it was unable to advise when the case would be heard and how long it would take to be determined. It said that, as a result of covid and the government’s previous ban on possession proceedings and evictions, there was currently a backlog of cases the courts have to process. It would update her as soon as it received any new information. In the meantime, it urged her to call the police immediately on 999 anytime she felt unsafe or believed her life would or could be in danger.
It confirmed its commitment to provide her with fortnightly updated with regard to this matter and said it had reminded its team about this. It said that if she required further information on this case or had any evidence of threats or contact from the perpetrator since the bail condition was lifted on 16 August 2021, she should send these to its TEO.
On 5 October 2021, the resident’s MP contacted the Ombudsman on behalf of the resident and her partner who were unhappy that the landlord had closed its complaint as no meaningful action had been taken. The resident had been “forced out” of her home in fear of violence and the landlord has still not evicted the perpetrator or made a case for the matter to be treated urgently.
Evidence of the parties’ communications post final response show that the original hearing date set for 29 November 2021 was adjourned due to the perpetrator’s solicitor’s raising an issue with his capacity. The hearing date was rescheduled for 22 December 2021. In response to this Service’s further information request, the landlord told us on 21 November 2022 that it received a Notice from the Court, that a Costs and Case Management Conference would take place on 20 January 2023 at the County Court at Central London. As the events since the date of the final response have not been subject of a complaint which has exhausted the landlord’s complaint process, events after the final response have not been investigated in this review.

Policies and Housing Law

The landlord’s ASB policy states that crimes including race related incidents are an example of ASB. In regard to vulnerable tenants its policy states it will work with them to help them maintain their tenancies or leases but it will take action for breach of tenancy or lease if joint working with support agencies fails to resolve the problems.
To seek possession of a property, landlords are required to serve a NSP on the tenant, comply with its obligation in respect of the tenant’s right to a review and subsequently apply to the court for possession. For secure tenancies, mandatory grounds includes where a tenant has been convicted of a serious offence however there are also discretionary grounds for reasons of antisocial behaviour available to landlords.

Assessment and findings

The neighbour’s eviction following his conviction

On the same date the neighbour (hereinafter referred to as the perpetrator) was convicted of a crime against the resident (causing her to fear violence on account of his transphobic and homophobic threats and gestures), the resident contacted the landlord to request that it urgently evict the perpetrator. Shortly following this, the resident raised a concern about why it had not already secured an eviction against the perpetrator.
In view of the perpetrator’s conviction on 15 June 2021 in connection with crimes against the resident in 2020, the resident’s desire for the landlord to urgently evict the perpetrator from the neighbouring property by the date of sentence hearing, was entirely understandable as she feared his potential return to the neighbouring property would result in further ASB due to the expiry of the court bail conditions.
The sentence hearing happened around 16 August 2021 when the perpetrator was given a community sentence. At this point he was allowed back to his property by the court as the bail conditions were lifted. The resident told the landlord at this time that she had been made homeless due to its failure to evict the perpetrator.
Whilst this review found that there were some delays by the landlord in progressing the perpetrator’s eviction from the neighbouring property, the lack of any eviction by the date of the perpetrator’s sentence hearing and expiry of the bail conditions on 16 August 2021 is not indicative of any service failure by the landlord.
After the resident told the landlord on 15 June 2021 that the court had convicted the perpetrator and asked that it urgently evict him, it explained the eviction process and made clear it had no right to repossess the property or evict the perpetrator as this could only happen by a court order following its possession order being granted. The first step was to serve the NSP and the landlord did this 13 days after the perpetrator’s conviction, on 28 June 2021. Whilst the resident made clear in her subsequent complaint raised that she was unhappy with the length of time taken before it served the NSP, the landlord explained it needed to obtain the certificate of conviction from the court and establish the whereabouts of the perpetrator in order to serve the NSP.
The landlord’s internal communications confirm it did request this document from the court and made enquiries with the police and the perpetrator’s representatives in regard to his whereabouts during this timeframe, although ultimately, it followed an alternative protocol when serving the NSP that did not require the perpetrator’s address.
Although the resident complained to the landlord that its TEO had “wasted time” by a) initially asking her to provide the certificate of conviction when he should know the court does not issue such documents to the victim and b) by asking the third parties about the perpetrator’s whereabouts, as the service of the NSP took place on 28 June 2021, despite these unsuccessful attempts by the landlord to obtain the information needed, on balance, they did not cause any significant delay. Therefore, the landlord’s actions in this regard were reasonable.
In regards to the resident’s complaint regarding the landlord not having commenced possession proceedings prior to the perpetrator’s conviction, it explained in its 8 July 2021 communication that it had not taken these steps at an earlier stage because this would have been on discretionary grounds for which it said there was insufficient evidence. Whilst the resident disputed this point, as a tenant’s conviction of a crime enables a landlord to apply for possession on mandatory grounds, on balance the landlord was entitled to weigh up its chances of success with both grounds. The perpetrator had mental health conditions which the court would likely have taken into account. It is noted that a previous attempt by the landlord to evict the perpetrator (in summer of 2020) on discretionary grounds was unsuccessful which may have also influenced its decision to await the outcome of the prosecution. Therefore, its explanation given for its decision in this regard, was reasonable.
It is clear from the landlord’s internal communications that its TEO was in communication with its legal team regarding issuing the case to court once the notice expired on 2 August 2021; the landlord subsequently issued possession proceedings on 27 August 2021.
Given the urgency of the situation, it is reasonable to have expected more timely action by the landlord in regards to issuing the case to court. Whilst the landlord acknowledged there had been delays, it did not adequately explain the cause of this specific delay. The landlord also failed to update to the resident on the progress of the eviction until around mid-August 2021 despite promising on 8 July 2021 that it would provide fortnightly updates. In its 17 August 2021 communication (stage one response), the landlord apologised for the lack of fortnightly updates and in its final response reiterated its commitment to provide regular updates. However, due to the delay with issuing proceedings after the NSP expired and due to it not providing updates as frequently as it said it would, it would have been appropriate for the landlord to offer the resident a measure of compensation for the stress and inconvenience caused which it did not do. As such it did not offer sufficient redress to put things right.
As previously mentioned, during its communications with the resident, the landlord explained the eviction process including that it had no control over when the possession case would be heard as this was determined by the court. It also highlighted in its final response that due to covid, lockdown and the government’s previous ban on possession proceedings and evictions, there was currently a backlog of cases the courts have to process.
The advice provided by the landlord regarding the eviction process during its complaints process was correct and giving the resident information about possible delays as a result of covid was appropriate as it sought to manage her expectations regarding the possible a potential delay with evicting the perpetrator.
It is noted from the landlord’s recent update provided to this Service that possession proceedings are still in process indicating the landlord has not yet been able to evict the resident.

The landlord’s handling of the request for an urgent injunction.

Following the perpetrator’s conviction, the resident requested for the landlord to apply for an injunction in order to prevent him from returning to the neighbouring property as it was expected that the bail conditions requiring the same would expire on the time of the sentence hearing scheduled for 13 July 2021. In its response of 29 June 2021 the landlord advised it would try to secure an injunction (until such time an eviction could be carried out) and that it had referred the request to its legal team for them to apply for an emergency injunction.
However, it subsequently told the resident on 2 July 2021 that its legal team had advised they would not be applying for a further injunction because no new incidents had happened since the previous injunction expired in January 2021.
Therefore, despite it initially indicating to the resident that it may be able to secure an injunction, it was reasonable for the landlord to then follow the advice from its legal team; as no further incidents had been reported, this advice was understandable. It explained its reasoning to the resident.

Complaint handling

The landlord operates a two stage complaints procedure and its complaint policy requires that the landlord acknowledges a formal complaint within two working days and provides a written response within 20 working days at stage one – ‘Local Resolution’. At stage two –‘Final Review’, the landlord is required to acknowledge the complaint within two working days and provide a final response within 25 working days.
On 25 June 2021 the resident asked the landlord to raise a complaint regarding its service provided in relation to a delay in evicting the perpetrator. There is no evidence of the landlord acknowledging her complaint within 2 days. On 8 July 2021, the landlord referred to her 25 June 2021 complaint when providing a response to an Enquiry received from her MP on 7 July 2021.
Following on from further communications from the resident, the landlord promised to provide a “full response” by 17 August 2021 which it did. This responded to various concerns that had been raised by the resident including regarding the delay in evicting the perpetrator, however, the landlord did not make clear under what stage of its complaints procedure this response was provided. This would have caused the resident confusion. It subsequently provided a final response to the resident on 10 September 2021.
Therefore, the landlord’s failure to log or acknowledge the resident’s 25 June 2021 complaint within 2 days or a within reasonable timeframe and then its failure to provide a clearly labelled stage one or ‘Local Resolution’ response within 20 working days is evidence of it failing to follow its complaints procedure when handling the resident’s related complaint. This prolonged the complaints process.
The timescales stated in the landlord’s complaints procedure do not reflect those in the Ombudsman Complaint Handling Code (the Code) which require a landlord to provide a stage one response within 10 working days and a stage two (final) response within 20 working days. This indicates the landlord’s complaints process does not comply with the Code in this regard. This constitutes further evidence of inadequate complaint handling.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord when handling the neighbour’s eviction following his conviction.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord when handling the resident’s request for an urgent injunction.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord when handling the resident’s related complaint.

Reasons

The landlord correctly explained to the resident that it had no right to evict the perpetrator or repossess the property until the court had granted a possession order and an eviction warrant. However, there was a delay by the landlord in progressing possession and it did not provide the resident with updates as often as it said it would.
It was reasonable for the landlord to follow advice from its legal team regarding not applying for an emergency injunction against the perpetrator and it explained the basis of its decision to the resident.
The landlord did not follow the timescales in its complaints process when complaint handling and did not clearly label responses to the resident. The timescales for stage one and stage two responses in its complaints process do not comply with the Code.

Orders and recommendations

The Ombudsman orders that the landlord:
1. Pays the resident £350 in total compensation comprising:
  1. £100 for delays and insufficient updates regarding the neighbour’s eviction.
  2. £250 for poor complaint handling.
2. Review its complaints policy with a view to revising the timescales for providing complaint responses so that they comply with the Code.
3. Comply with the above orders within four weeks.
The Ombudsman recommends that the landlord:
1. Provides regular updates to the resident whilst eviction proceedings are ongoing.