Leeds City Council (202110536)

REPORT

COMPLAINT 202110536

Leeds City Council

15 April 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

The complaint concerns how the landlord handled the resident’s reports of noise nuisance and antisocial behaviour (ASB from a neighbour.

Background

The resident is secure tenant of the landlord, which is a local authority. The property is a flat in a communal building.
The resident has reported ongoing issues of ASB from a neighbour. The neighbour described the ASB as noise nuisance, verbal abuse and harassment. The resident first reported the matter in July 2020. The landlord opened an ASB case and contacted both the resident and his neighbour to discuss the matter. Following an incident in August 2020, the neighbour was arrested by the police.
The police informed the landlord in December 2020 that they would be taking no further action against the neighbour. The landlord then served a Notice of Intent to seek Possession (NISP) on the neighbour and explained that if further incidents occurred within a twelve-month period, it may pursue possession of their property.
On 12 December 2020 the resident contacted the landlord and requested to raise a formal complaint. He described the element of the complaint as:
1. He had experienced ongoing ASB from a neighbour.
2. The issues had an adverse effect on his health.
3. The landlord had not done enough to resolve the matter and the neighbour should be evicted.
The resident continued to report incidents of ASB to both the landlord and the police. The landlord visited the neighbour’s property on the evening in January 2021 but did not witness any noise nuisance from outside the property. The police contacted the landlord on 14 January 2021 and informed it that they would not be taking any further action following the resident’s reports of ASB.
The stage one complaint response was sent to the resident on 14 January 2021. The landlord informed him that:
1. It had been in regular contact with the resident to discuss the issues.
2. As well as its own ASB case, there has been an ongoing criminal investigation.
3. It noted that the resident had requested that his neighbour be evicted, but the evidence gathered at that point did not support this action.
4. It advised the resident to continue to report any further incidents to both it and the police.
Further incidents of noise nuisance were reported by the resident and the landlord visited the neighbour’s property. The resident requested to have noise monitoring equipment installed and was informed by the landlord that as no statutory noise nuisance had been witnessed and due to limited resources, that this would not be possible at that stage.
The resident contacted the landlord on 10 February 2021 and requested an escalation of the complaint on the grounds that:
1. He had received poor service from the landlord and staff members had been rude to him.
2. He did not feel safe going in and out of his property.
3. He had been stalked and intimidated by other residents.
4. The ASB had worsened, and the landlord has not done anything to resolve the issues.
The stage two complaint response was sent to the resident on 22 February 2021. The landlord informed him that:
1. It had interviewed the staff members involved, who had denied that they had been rude in their correspondence with the resident. However, the landlord accepted that the issues were challenging there had been some “frustrating” telephones calls between the resident and staff. It apologised to the resident for any discourtesy he experienced.
2. The landlord had taken action against the neighbour when it had the evidence to do so and in proportion to the seriousness of the offenses and tenancy breaches. It had found no evidence that the resident had been stalked or intimidated by other residents and the police had no open lines of enquiry into these reports.
3. Eviction proceedings were only considered by the landlord as a last resort and only in the most serious ASB cases. It also noted that due to the Covid-19 pandemic and emergency laws put in place, the courts were currently not considering eviction proceedings.
4. It explained that it the noise from the neighbour’s property was deemed to be statutory noise nuisance, then it would be able to serve a Noise Abatement Notice (NAN). If this was ignored the landlord could obtain a warrant to enter the property and seize any noise-making equipment. However, the Environmental Health Team (EH) who had visited the neighbour’s property had not yet witnessed any noise of this level.
5. It was satisfied that it had acted and responded appropriately to the issues.
In emails sent to this Service on 3 August 2021 and 4 September 2021, the resident described the outstanding issues of the complaint as:
1. The ASB was still ongoing, and both the landlord and police had been unable to resolve the issues.
2. The landlord had not taken into account his health and wellbeing when investigating the ASB.
3. The landlord had refused to install noise monitoring equipment in his property.
As a resolution to the complaint, the resident requested that his neighbour was evicted from their property.

Assessment and findings

Relevant policies and procedures

The landlord’s ASB policy defines antisocial behaviour as “conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises or the conduct capable of causing housing-related nuisance or annoyance to any person”.
The policy states that the landlord will respond to urgent ASB reports within one working day and all other reports within five working days. Urgent reports are defined as incidents “where there is a risk of harm to reporting persons, victims or witnesses or where there are clearly identified vulnerabilities”. It goes on to state that when reports include incidents of a criminal nature, it may be more appropriate to contact the police.
On receipt of a report, the policy states that the landlord will undertake an initial assessment to determine the seriousness of the reports and whether an ASB case required to be opened. Once a case had been opened, the landlord will investigation the issues and look to gather evidence to support the allegations made. It will also liaise with outside agencies and community groups.
Within ten working days of the case being opened, the landlord will attempt to arrange visits with both the complainant and alleged perpetrators to discuss the allegations. These visits will also look to identify any vulnerabilities or safeguarding concerns. The landlord will then contact the complainant every ten working days to keep them updated on the progress of the investigation.
In relation to the installation of noise monitoring equipment (NME), the policy states that “If the noise is happening during the daytime, efforts should be made by the case officer to witness the noise rather than install NME. Where this is impractical or noise frequently occurs in the evening/night-time/early morning, the use of NME might be appropriate”.
The policy describes what action a landlord will take against an alleged perpetrator of ASB. This ranges from a written warning up to possession orders. The landlord describes situations where possession proceedings would be considered as when “the accused of anti-social behaviour is a [landlord] tenant or someone living with or visiting a tenant, and the behaviour complained of is a breach of the terms of the tenancy agreement, or, in the case of secure tenants, one of the grounds for possession as defined by the Housing Act 1985 applies. The grounds for possession include where the tenant or a person living with or visiting the tenant is guilty of anti-social behaviour”.
The ASB policy also describes how a community trigger case review operates and when a complainant can make a review request. This, in part, states:
1. “The community trigger provides victims of ASB with the ability to hold agencies dealing with their reports to account. Where a reporting person or victim has made 3 reports within the previous six months where reports are made within one month of them occurring, they can request a review under the community trigger. Where a review meets the community trigger threshold, partners and involved agencies must submit their actions to a formal review meeting”
The landlord operates a two-stage complaints process. When a complaint is received, the landlord will acknowledge the complaint in three working days and aims to provide a response at stage one within 15 working days. If the complainant is dissatisfied with the response, they can, within 28 days of receiving the response, request an escalation of the complaint to the next stage. The landlord will then undertake a review of the complaint and provide a stage two response within 15 working days. This will be the landlord’s final response to the complaint.

Scope of investigation

The resident has stated his dissatisfaction that the landlord did not properly consider the effect on his health caused by the ASB during its investigation. The Ombudsman does not doubt the resident’s comments regarding his medical conditions, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Matters of personal injury or damage to health, their investigation and compensation, are not part of the complaints process, and are more appropriately addressed by way of the courts or the landlord’s liability insurance policy, if it has one. Nonetheless, consideration has been given to the general distress and inconvenience which any errors by the landlord may have caused the resident.
This is in line with paragraph 39(i) of the Housing Ombudsman Scheme, which states that “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure”.

How the landlord handled the resident reports of ASB

It is outside the Ombudsman’s role to establish whether the noise nuisance and ASB reported was occurring or not; rather the Ombudsman’s role is to establish whether the landlord’s response to the resident’s reports was in line with its legal and policy obligations, and whether its response was fair in all the circumstances of the case.
Overall, the landlord has followed its ASB policy and procedures in responding to the resident’s reports of noise nuisance and ASB from his neighbour. It responded within its published timescales, opened an ASB case, undertook an assessment, and contacted the neighbour and the resident to discuss the allegations. The landlord then called the resident regularly to keep him updated on the progress of its investigation.
When more serious incidents of ASB were reported, the landlord liaised with the police and arranged an interview with the neighbour to discuss his behaviour and the possible consequences for his tenancy. The police informed the landlord that they would be taking no further action against the neighbour. The landlord then served a NISP on the neighbour. This meant that if any further incidents of ASB from the neighbour occurred in the next 12 months, the landlord could seek an order of possession. This was an appropriate response by the landlord under the circumstances.
Landlords can only take formal action against tenants for ASB such as acceptable behaviour orders, court injunctions or eviction proceedings if there is sufficient evidence to show that formal action is appropriate. In order to secure an injunction or eviction, the landlord would have to go to court and it would be expected to show the court that the ASB was severe and persistent and (except in the most extreme cases) reasonable efforts had been made to resolve the issues informally (mediation, tenancy warnings, acceptable behaviour orders etc.) before the landlord pursued court action.
In this context, it was reasonable for the landlord to issue a NISP in the first instance rather than pursuing eviction or an injunction against the neighbour right away. Moreover, due to the changes in housing law put in place during the Covid-19 pandemic it would not have been possible for the landlord to go to court to seek permission for an eviction during the time period considered in this complaint.
It was also reasonable for the landlord to wait until the police investigation had concluded before issuing an NISP to the neighbour. The landlord needed to ensure that any action it took did not interfere with the police’s investigation. Also, the outcome of the police investigation may have supported the landlord in taking further action. If the resident had been convicted of a criminal offence following the police investigation, then this conviction could be used by the landlord as evidence to present to the court in support of an application to evict the neighbour. It was appropriate in this context for the landlord to wait for the police investigation to be concluded before taking further action.
The resident has stated his dissatisfaction with how the landlord investigated his reports of noise nuisance and its decision not to install noise recording equipment in his property. The Environmental Protection Act 1990 and Noise Act 1996 give landlords the power to act where there is “excessive” noise between the hours of 11pm and 7am in domestic premises. The term “excessive” is not defined within either Act.
The landlord’s ASB case notes described numerous visits made to the neighbour’s property by the local authority’s Environment Health Team (EH). EH then contacted the landlord to inform it of their findings. During the time period of the complaint, the landlord was informed by EH that they had not witnessed any noise that could be considered statutory noise nuisance.
Therefore, it was reasonable, and in line with its ASB policy, for the landlord not to r install noise recording equipment and to advise the resident to continue providing it with diary sheets and continue to report any further noise nuisance to the EH. As with ASB, for the landlord to be in a position to take action against an alleged perpetrator of noise nuisance, it requires sufficient supporting evidence that the behaviour is causing significant nuisance and/or harm to others and has occurred over a prolonged of time rather than being a one-off incident. Furthermore, the landlord cannot reasonably be expected to take actions against tenants for noise that is considered everyday household noise. However, if a noise is confirmed as being statutory noise nuisance, then both the landlord and EH may be able to take formal action against the perpetrator, such as by issuing a Noise Abatement Notice.
The resident has also described his unhappiness with how he was dealt with by some landlord staff members and their attitude towards him. The landlord interviewed the relevant staff members and while it disputed the resident’s description, it did accept that its staff members had expressed their frustration to the resident during telephone conversations. It apologised to the resident for any upset that this had caused.
This was an appropriate response by the landlord. It carried out an investigation following the resident’s concerns and recognised that the conduct of some staff members was not acceptable. It was good practice for the landlord to raise the matter with the staff members concerned. However, due to data protection issues; it would not be expected to tell the resident specific details regarding what, if any, action it took regarding the members of staff. It is outside the Ombudsman’s role to investigate employment matters and therefore we would not assess any specific action which the landlord may have taken regarding the staff members concerned or comment on this as part of our assessment of this complaint. Therefore, an apology was reasonable in the circumstances to resolve this aspect of the complaint.
Overall, there is no evidence of service failure by the landlord in how it handled the resident’s reports of ASB and noise nuisance. It opened an ASB case and investigated the issues in line with its ASB policy. It clearly explained to the resident why it was unable to consider further action during the time of the complaint on his reports of noise nuisance. It also explained why it was not yet in a position to commence eviction proceedings against the neighbour, although it had contacted the neighbour and informed him that if similar behaviour continued that it would seek a possession order.
Section 7 of the landlord’s ASB policy relates to community triggers, when they can be requested by a complainant and how the threshold for a community trigger is met. No evidence has been provided by the landlord which shows that it informed the resident that he had the option of requesting a community trigger if he was not satisfied with how his ASB case was being handled. It is therefore recommended that the landlord write to the resident to explain the community trigger process and how to make a request.
At the conclusion of the stage two complaint response sent on 22 February 2021, the resident was incorrectly advised to bring his case to the Local Government and Social Care Ombudsman (LGSCO) if he remained dissatisfied.
It is not clear that this incorrect information caused any delay in the resident brining this case to this Service. The resident attempted to raise a new complaint over the matter with the landlord, which then wrote to him on 12 October 2020 and advised him to bring his case to the correct Ombudsman service. At this stage, the resident had already been in contact with this Service. To prevent similar errors in future, it is recommended that the landlord reviews its complaint procedures to ensure that complainants are referred to the correct Ombudsman service following the conclusion of its internal complaint process.

Determination

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of how it handled the resident’s reports of noise nuisance and ASB.

Recommendations

It is recommended that the landlord:
1. Write to the resident to explain the community trigger process and how to make a request for a community trigger.
2. Review its complaint procedures to ensure that complainants are referred to the correct Ombudsman service.