Birmingham City Council (202200471)

REPORT

COMPLAINT 202200471

Birmingham City Council

16 March 2023

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 is about the landlord’s:
1. handling of the antisocial behaviour (ASB) case involving the resident and her neighbour;
2. response to the resident’s request for a different housing officer;
3. response to the resident’s reports of discrimination due to her age;
4. complaint handling.

Background and summary of events

Background

The resident holds a secure tenancy with the landlord which began on 1 September 2014. The property is a three-bedroom mid-terrace house. The resident lives there with her four children.

Tenant handbook

The landlord’s tenant handbook sets out the landlord’s commitments to its tenants. These include treating tenants with respect and providing its services in a way that meets their needs; making sure it treats everyone fairly and equally; and acting quickly and firmly against any kind of discrimination.
The tenant handbook also sets out the tenant’s responsibilities. Tenants are expected to “be a good neighbour” and not cause a nuisance to neighbours. Among other things, they are required to keep noise down, be mindful of how their behaviour might affect those living nearby, and not interfere with others’ quiet enjoyment of their homes. The landlord states that it expects its tenants to “be reasonable and respect different lifestyles and daily routines”, noting that noise can easily pass between floors and walls in neighbouring properties.
The handbook states that tenants’ housing officers can provide “a range of support and information”. It also states that the landlord has six locally based antisocial behaviour teams, who will “work with [tenants] to sort out problems”.

ASB procedure

The landlord divides reports of ASB into three categories: Category A (very serious, with contact within 24 hours), Category B (serious, with contact within five working days), and Category C (minor, with contact within 10 working days). The landlord classes domestic noise and neighbour disputes as Category C reports, and noise nuisance as Category B reports.
The landlord’s ASB procedure states that when it receives a report of ASB, it will agree an action plan with the person who reports it; interview the alleged perpetrator; and investigate any counter-allegations separately, but in a cross-referenced manner. It will consider use of noise monitoring equipment in noise nuisance cases, and may refer neighbours engaged in a dispute to a mediation service.
The ASB procedure states that vulnerability of a complainant will be assessed as part of the landlord’s triage system and a risk assessment matrix will be completed.

Noise nuisance guidance

The landlord’s internal guidance on dealing with noise nuisance cases recommends use of noise monitoring equipment if mediation and practical solutions have not resolved a noise issue. It states that officers “must write to the [alleged] perpetrator to let them know that you’re considering using noise monitoring equipment” before requesting the equipment.

Complaints policy

The landlord operates a two-stage complaints process. At stage one, it will acknowledge complaints within 48 hours of receipt, and provide a response within 15 working days if it is unable to resolve the issue straight away. At stage two, it will respond within 20 working days.

Summary of events

The landlord’s records show that there is a history of allegations of ASB between the resident and her neighbour, dating back to at least March 2020 when the resident reported “noise nuisance and intimidation” by her neighbour. This coincided with the start of the first Covid-19 lockdown. The landlord documented that the case was closed after “initial letter sent and problems ceased”.
In July and September 2020 the resident’s neighbour reported noise nuisance by the resident, and in September 2020 the resident reported harassment and assault by her neighbour. The case was referred for mediation by the landlord. It was then closed after mediation had taken place, with follow-up calls made by the mediator in October 2020. The landlord documented that both parties had engaged in mediation and a resolution had been reached. The mediator provided a summary of agreements made during mediation and recommended re-referring the case when lockdown restrictions lifted.
In April 2021 the resident’s neighbour reported continued noise nuisance by the resident. The landlord interviewed the resident about the reported noise over the phone on 20 April 2021. The resident said that she was not intentionally causing a nuisance to her neighbour. She explained that she was a single parent with four children, and had previously taken part in mediation to try to resolve the issues with her neighbour. She said she had put measures in place to minimise noise transfer to her neighbour’s property, such as installing foam around her doors. She said she was now scared to play music, and felt there was no point in further mediation.
The landlord then took the case to an internal noise nuisance meeting, where it sought advice regarding a way forward. Among the options discussed were the installation of noise monitoring equipment, which would soon become available, and a visit to the resident when Covid-19 restrictions allowed.
The landlord discussed the case at a second internal noise nuisance meeting on 25 May 2021. The landlord’s records state that as it had previously referred the resident and her neighbour for mediation, a warning letter would need to be sent before noise monitoring equipment could be installed. The landlord then sent a warning letter to the resident the same day. The resident said that the letter was incorrectly addressed and did not arrive for around three weeks.
In June 2021 the resident made three reports of ASB, which were investigated by the landlord as a single case. The resident reported that:
1. She felt her neighbour was harassing her by making “false claims”.
2. Every time she went into her garden, her neighbour would also come into their garden and shout abuse.
3. On one occasion, the resident was putting up some bamboo fencing in her rear garden when the neighbour said the fence was “ugly” and threatened to break it.
4. Her neighbour kept trying to speak to her, despite the fact that she and her neighbour had been told by the landlord not to speak to each other.
5. She felt the landlord was “ignoring her due to her colour and age and taking the side of an elderly white couple”.
6. She was “extremely affected” by the situation and welcomed the installation of noise monitoring equipment, which would show whether excessive noise was coming from her property.
The landlord interviewed the resident about her reports of ASB on 15 June 2021. Its record of this interview indicates that it spoke to the resident about her concerns and gave advice regarding the level of evidence it required in order to take action. The landlord said it would speak to the resident’s neighbour about the matters she had reported, and asked her what action she would like it to take. The resident told the landlord she felt it was taking the neighbour’s side, saying “because they are old they get away with things”. The landlord’s records that it interviewed the resident’s neighbour after speaking to the resident, and that it subsequently submitted a noise monitoring equipment request form.
The same day, the landlord’s records show that the resident contacted its customer service hub and said that she wanted to make a further report about her neighbour, but did not want to speak to her housing officer. She said this was because her housing officer had sent her a warning letter the previous week.
On 17 June 2021 the landlord wrote to the resident. It advised that it had combined the resident’s two most recent reports into its existing open case. It also said it understood that the resident had told its call centre that she didn’t want to speak to her housing officer, but if the housing officer was not able to speak to the resident then she would be unable to investigate the issues raised. The same housing officer was also investigating the neighbour’s reports of noise coming from the resident’s property.
On 21 June 2021 the resident emailed the landlord and said that she did not wish to speak to her housing officer about her case. She said she had sent a formal complaint by post about the way her case and request for a different housing officer had been handled. She also said that when the housing officer had called her to speak about the ASB reports she had made, the housing officer began the call by telling the resident of her neighbour’s allegations and discussing the noise monitoring equipment, and the resident had to raise the issues she had reported. The resident asked the housing officer not to contact her further “as I find interactions with you stressful”.
On the same day, the landlord wrote to the resident about the noise monitoring equipment.
On 29 June 2021 the landlord received a letter of complaint from the resident. In her letter, the resident said that:
1. She was unhappy about the way her ASB reports and reports against her had been handled by her housing officer.
2. The housing officer had shown bias towards her neighbour and lacked empathy and understanding.
3. The housing officer had excused her neighbour’s unacceptable behaviour due to their age and asked the resident what she really expected the landlord to do to the neighbour.
4. When she requested that the housing officer send a letter to the neighbour stating that she did not want them to contact her, the housing officer tried to change her mind, saying it would make matters worse.
5. The housing officer told her she would need to seek the landlord’s permission for a video doorbell she had installed.
6. The housing officer had questioned her as to how she could have caused her neighbour’s behaviour. For example, when the resident reported that her neighbour was harassing her when she was putting up fencing in her garden, the housing officer asked how the fence could be affecting her neighbour, and the resident felt she had to defend herself.
7. The housing officer talked about the neighbour’s reports when the resident tried to make her own reports.
8. The housing officer was aware that the resident did not want any further communication with her, but continued to contact her.
9. She had received a ‘final warning before action’ letter from the housing officer in June 2021, which referred to allegations of the resident breaching her conditions of tenancy. The warning letter was sent to the wrong address and took around 21 days to arrive.
On the same day, 29 June 2021, the resident contacted the landlord who completed a complaint form on her behalf. The resident said she would like to request that another member of the housing team took on her case. She said she did not want her housing officer to be in charge, and she felt she was “being bullied” due to receiving a further letter from the housing officer in question.
On 9 July 2021 the landlord acknowledged the resident’s complaint. It said it had begun an investigation and would provide a response within 15 working days.
The landlord then provided its stage one response the same day, stating:
1. It was writing in response to the resident’s concerns about her housing officer dealing with her case.
2. It had investigated the resident’s concerns, reviewed her case and spoken to the housing officer in question.
3. It was aware there was a long-running dispute between the resident and her neighbour, with allegations made by both sides.
4. The housing officer had contacted the resident to relay the allegations made by the neighbour and give her a chance to respond to them, which was a standard part of the landlord’s policies and procedures.
5. It had reviewed the notes of the current ASB case, which stated that the resident felt harassed as the neighbours said her fence was ugly and threatened to break it. The housing officer spoke to the resident’s neighbour who denied saying this. The resident also referred to some graffiti on her property, but did not see the neighbour spray this.
6. The housing officer had spoken to the resident’s neighbour about the allegations made by the resident, just as she had spoken to the resident about allegations made by the neighbour.
7. It was unable to find any reasons why the housing officer could not continue to work with both parties on the case.
8. It had every confidence in the housing officer’s integrity and impartiality in dealing with the matter according to policy and procedure, and so she would not be reassigned.
9. It did not have the resources to allow residents to choose their housing officers.
10. The resident’s complaint was not upheld and would be closed.
11. If the resident was unhappy with the way the landlord had dealt with her complaint, she could ask for a review, and a final response would be sent within 20 working days of the request.
On 12 July 2021 the landlord noted that the resident did not want her housing officer to deal with her case, and that the case would be closed down if the resident was not willing to engage.
On 14 July 2021 the resident requested a review of the landlord’s stage one response. She said she did not feel there had been “an actual investigation” into her complaint. She said her housing officer’s notes did not reflect conversations that had taken place, and requested that an officer listened to the phone calls. She also asked if the landlord had received her letter, which she had sent “the second week of last month”.
On 2 August 2021 the landlord issued its stage two response, stating:
1. It had spoken to the resident’s housing officer at length about her case.
2. It felt it would be “a backwards step” to allocate the case to another housing officer at present, as the housing officer in question had “all of the knowledge going forward” and another officer would have to “start from scratch”.
3. The housing officer was in the process of arranging for noise monitoring equipment to be installed in the neighbour’s property, which would confirm “if the complaint is justified or not”.
4. It had spoken to the housing officer about the resident’s complaint regarding her fence. The resident’s neighbour denied this allegation, and as there were no independent witnesses the landlord could not take it forward. However, the report had been logged.
5. It trusted this clarified the matter, and if the resident remained unhappy, she could refer her complaint to the Local Government and Social Care Ombudsman.
The Ombudsman notes that the issues between the resident and her neighbour have continued and were ongoing at the time of the landlord’s update to this Service in August 2022.

Assessment and findings

The landlord’s handling of the resident’s reports of ASB

The background to this complaint is one of allegations and counter-allegations of ASB by the resident and her neighbour. It is relevant for the Ombudsman to acknowledge at the outset that ASB cases involving allegations and counter-allegations of the extent presented in this case can be among the most difficult and intractable for a landlord to resolve. That difficulty is not the fault of any party, but it is important that the Ombudsman’s assessment of the landlord’s actions recognises this fact.
It is noteworthy that the events of this case coincided with the start of the Covid-19 pandemic and associated restrictions, which presented unforeseen challenges for many landlords and limited their ability to carry out certain functions such as visits. The lockdown periods were also a stressful time for many residents, who found themselves unable to leave their homes and see loved ones, and faced disruption to work and school routines. While it would not be appropriate to detail the impact of Covid restrictions on particular individuals in this case, it is apparent that the landlord has taken account of this background when assessing the reports it received.
The information provided to this Service by the landlord indicates that, in general, the landlord responded appropriately and in accordance with its policies when it received reports of ASB from the resident and from her neighbour. In both cases it promptly logged the reports on its system, agreed action plans with the reporting party, interviewed the alleged perpetrator, made enquiries regarding any independent witnesses, and gave appropriate advice. It was reasonable for the landlord to offer mediation at an early stage, and given the effectiveness of this, to revisit mediation when issues resurfaced. Some of the landlord’s actions that the resident objected to were in fact consistent with good practice and current guidance, such as requiring permission to install a video doorbell.
The landlord’s ASB policy states that it expects its tenants to “respect different lifestyles and daily routines”, and there is evidence that it explored this expectation with the resident and her neighbour, both during interviews conducted by the housing officer and through the mediation process. This included encouraging the resident and her neighbour to see things from each other’s perspective and to consider the impact of their actions on the other party.
It was also appropriate for the landlord to consider use of noise monitoring equipment in a situation where it was receiving two contrasting accounts of noise, as this would demonstrate the extent of the noise and evidence whether a statutory nuisance had occurred. While it is possible the installation of equipment could have been considered sooner, the landlord’s records indicate that this option was explored as soon as the equipment became available.
While much of the landlord’s handling of the ASB case was well judged, its decision to issue a ‘final warning before action’ letter to the resident in May 2021 was unhelpful and overly heavy-handed. The landlord’s records suggest that the warning letter was issued simply because this was a pre-requisite for installing noise monitoring equipment. However, the landlord’s internal guidance states only that it must write to tenants alleged to be causing noise nuisance to notify them that it is considering installing equipment, not that it must issue a warning.
The landlord had previously emphasised the need for corroborating evidence before it could take action, and had identified the neighbour’s reports as potentially relating to ‘domestic’ noise from normal family life rather than unreasonable noise. The warning letter refers to diary sheets completed by the resident’s neighbour, which the landlord viewed on 5 May 2021. However, the allegations listed in the warning letter do not indicate that the landlord had received new evidence that the noise was unreasonable or that it was deliberate; only that the resident’s neighbour had described hearing noise of a type previously reported to the landlord. The landlord’s decision to send a warning letter on 25 May 2021 therefore appears an arbitrary and unjustified one, which contributed to the breakdown of the resident’s relationship with her housing officer and caused her to feel that she was being discriminated against. Furthermore, sending a final warning letter rather than an advice letter or first warning does not indicate that the landlord adopted an incremental approach or acted proportionately. The threat of formal action and mention of eviction understandably caused considerable distress to the resident.
The fact that the letter was incorrectly addressed and took some time to arrive was unfortunate, and while this alone was an isolated and relatively minor error, the Ombudsman understands that the resident was confused and upset by subsequent communications that did not refer to the warning.
The landlord is entitled to take action to manage ASB, but it should also recognise its own role in maintaining relationships both with and between its tenants. Having previously made efforts to resolve the situation between the resident and her neighbour amicably, the landlord’s issuing of a final warning letter to the resident made her feel that she was being treated unfairly and differently to her neighbour, which created an ongoing distrust of the landlord.

The landlord’s response to the resident’s request for a different housing officer

When the resident first told the landlord she did not want to speak to her housing officer on 15 June 2021, she said this was because she had recently received a warning letter from the housing officer. This was an understandable reaction and it was not unreasonable for the landlord to ask her to reconsider. On this occasion, the resident was able to make a report of ASB via the landlord’s customer hub without speaking to her housing officer.
It was appropriate for the landlord to assess the housing officer’s suitability to work with both parties, having regard to the individual circumstances of the case, and to inform the resident that it had done so in its stage one response. While it is not clear why the landlord felt the case should remain with a housing officer rather than its dedicated ASB team, it is accepted that landlords may utilise their staff as they see fit. It was also reasonable for the resident to be asked to follow the same procedure as the landlord’s other residents and in accordance with its current service delivery, as the landlord is expected to treat all of its residents fairly and consistently.
At stage two, the landlord reviewed its initial response and stated that it would be a “backwards step” for another housing officer to take over the resident’s case, as that officer would lack the knowledge accumulated by the current officer and would have to “start from scratch”. This was an unconvincing response, as any newly allocated officer would be quickly able to bring themselves up to speed if the landlord had kept adequate records (which it had). However, it was appropriate for the landlord to reaffirm its previous decision not to reallocate the resident’s case, and to explain its decision making.

The landlord’s response to the resident’s reports of discrimination due to her age

During her correspondence with the landlord, the resident stated that she felt discriminated against due to her age, race and “privilege”. She went on to pursue her allegation of age-based discrimination by the landlord through its complaints process and with this Service.
There are two aspects to the discrimination the resident felt she was subjected to by the landlord: firstly, she believed the landlord “ignored” her due to her age, and secondly, she believed the landlord treated her neighbour differently and in a preferential way because they were older.
The landlord has an obligation under the Equality Act 2010 to consider how its policies and decisions affect people with characteristics that are protected under the Act, including age. It is not the Ombudsman’s role to establish whether or not the landlord has been discriminatory in its treatment of the resident, as that is a matter for the courts. Instead, the Ombudsman can look at whether the landlord responded appropriately and sensitively to the resident’s concerns about discrimination, and whether it followed good practice.
There is evidence that the landlord rightly took account of the parties’ ages in its decision making throughout the ASB investigation: for example, when assessing vulnerability and completing risk assessments, and when speaking to the resident and her neighbour about different lifestyles. It was appropriate for the landlord to highlight the differences in routine, and possibly expectations, between an older couple and a young family with children.
In the Ombudsman’s opinion, while the landlord has acknowledged the age difference between the resident and her neighbour, it has not done so in a disadvantageous or intentionally insensitive way. It would have been good practice for the landlord to reassure the resident regarding this aspect of her complaint in its stage one and two responses, and this is covered below. However, taking account of all the information available to this Service, no service failure has been found in respect of this aspect of the resident’s complaint.

The landlord’s complaint handling

The landlord did not acknowledge the resident’s complaint within 48 hours of receipt, as stated in its complaints policy. Instead, it acknowledged the complaint and provided its stage one response on the same day. This resulted in a delay of six days in acknowledging the complaint. The information provided by the landlord indicates that the emails containing its acknowledgement and formal response were sent five minutes apart, meaning that the resident had no opportunity to contact the landlord’s stage one responder before it issued its response to her complaint.
The landlord’s stage one response was issued eight working days after it received the resident’s complaint, which was in line with its policy of responding within 15 working days. However, it is unclear whether the landlord was responding to the resident’s letter – which was two pages in length and raised a number of concerns – or to its own brief summary of the resident’s complaint. In any case, the landlord’s stage one response disregarded many of the points made by the resident in her letter, and only addressed her request for a different housing officer. The job title of the stage one responder was also not stated.
The resident escalated her complaint to stage two on the grounds that the landlord had not carried out “an actual investigation” into the issues she had raised. In her escalation request, she specifically asked the landlord whether it had received her letter. The landlord’s stage two response did not answer this question, although the letter was recorded on the landlord’s system on 20 July 2021, almost two weeks before the stage two response was issued.
The landlord provided its stage two response 13 working days after the resident’s escalation request, which was within the 20 working days quoted in its policy. However, the response was cursory and unsympathetic, and again did not address many of the points made by the resident in her complaint, including her allegation of discrimination. Had the landlord not responded to the resident’s letter at stage one, it had the opportunity at stage two to explain this and demonstrate appropriate investigation; however, it did not do so.
The stage two response concluded by signposting the resident to the Local Government and Social Care Ombudsman, when in fact it should have referred her to this Service. This error is replicated in the landlord’s tenant handbook, although its complaints policy is correct.
The resident’s complaint presented an opportunity for the landlord to review, acknowledge and apologise for issues such as the warning letter, and provide more explanation than it did, which it failed to take. This gave the resident little reassurance that her concerns about its handling of the ASB case were adequately considered and contributed to her dissatisfaction with the landlord. This outcome is contrary to the landlord’s aim of resolving differences between the parties.
It is the Ombudsman’s conclusion that the failures identified in the landlord’s complaint responses amount to service failure, for which some level of redress is required in order to put things right and rebuild the landlord-tenant relationship.
It is relevant to note that this Service produced a spotlight report in relation to noise cases in October 2022, which may assist the landlord in reviewing and shaping its procedure. The Ombudsman has also recently conducted a wider investigation into the landlord under paragraph 49 of the Scheme, which has highlighted issues with the landlord’s compensation policy. Recommendations made as a result of that investigation may apply to this case.

Determination (decision)

In accordance with paragraph 52 of the Scheme, there was:
1. service failure by the landlord in its handling of the ASB case involving the resident and her neighbour;
2. no maladministration by the landlord in its response to the resident’s request for a different housing officer;
3. no maladministration by the landlord in its response to the resident’s reports of discrimination due to her age;
4. service failure by the landlord in its complaint handling.

Reasons

The ASB case involving the resident and her neighbour is a complex one that required the landlord to make a large number of sensitive and balanced decisions. The majority of these decisions were made appropriately and in accordance with the landlord’s ASB policy. However, the landlord’s decision to issue a final warning letter to the resident, seemingly with the sole aim of allowing it to install noise monitoring equipment, was inappropriate and inconsistent with decisions the landlord had made in other circumstances. This decision constituted a misinterpretation of the landlord’s guidance and had a substantial negative impact on the landlord-tenant relationship.
It was reasonable for the landlord to refuse the resident’s request for a different housing officer and to explain the reasons for its decision.
The landlord took appropriate account of all parties’ ages when investigating reports of ASB made by the resident and her neighbour. This formed part of an assessment of vulnerability and risk, and allowed the landlord to offer relevant advice. The landlord’s actions were informed by policy and, in the Ombudsman’s view, were not discriminatory.
The landlord’s stage one and stage two complaint responses, while timely, only meaningfully engaged with the resident’s request for a different housing officer. They did not address a range of other issues raised by the resident in her letter of complaint, which the landlord received before the time of its stage two response. The landlord did not acknowledge the resident’s stage one complaint within the stipulated time, and its stage two response did not answer a question asked by the resident in her escalation request. Due to the limited scope of the landlord’s complaint responses, it did not identify any failures and so did not offer appropriate redress (such as an apology or compensation). It also did not take the opportunity to give reassurance to the resident that all her concerns had been considered.

Orders and recommendations

Orders

The landlord is ordered to do the following within four weeks of the date of this report:
1. Apologise to the resident.
2. Pay the resident £200, comprising:
  1. £100 for its handling of the ASB case involving the resident and her neighbour, in recognition of its service failure in issuing a final warning letter to the resident;
  2. £100 for its complaint handling service failure.
3. Provide evidence of compliance with the above to this Service.

Recommendations

It is recommended that the landlord ensures its staff who deal with ASB cases are trained in dealing with reports of noise, including the issuing and wording of letters.
It is recommended that the landlord reviews its template letters and tenant handbook to ensure that these refer to the Housing Ombudsman, rather than the Local Government and Social Care Ombudsman, where appropriate.