Birmingham City Council (202103379)

REPORT

COMPLAINT 202103379

Birmingham City Council

29 June 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:
1. The landlord’s response to the resident’s reports of anti-social behaviour and harassment.
2. The landlord’s handling of the resident’s concerns about the CCTV cameras attached to the block.
3. The landlord’s complaints handling.

Background

The resident’s complaint relates to events that occurred while she occupied her previous property (referred to in this report as ‘the property’), which was a two-bedroom flat in a block. The resident had a secure tenancy at the property, which had started on 24 October 2011. On 20 September 2020, the tenancy came to an end and the resident moved to an alternative property owned by the same local authority landlord.
The resident’s complaint relates to a neighbour (referred to in this report as ‘the neighbour’) who was the tenant of the flat that was directly below the resident’s property.
The landlord’s tenancy agreement states that tenants must not:
1. Do anything which causes or is likely to cause a nuisance to anyone in the local area;
2. Do anything which interferes with the peace, comfort or convenience of other people living in the local area;
3. Harass, or threaten to harass, or use violence towards anyone in the local area.

Summary of events

The resident has advised this Service that while she lived at the property, she had been harassed by her neighbour since 2013. After reporting the matter to the police in 2016, a restraining order was granted by the courts prohibiting the neighbour from having any contact with the resident.
On 24 March 2020, the resident reported to the police that someone had vandalised her partner’s car while it was parked near the block, but there was no evidence of who had caused the damage. On the same day, the resident informed the police that while she was in the building, the neighbour had stared at her and then followed herand her partner to the property. The resident therefore believed the neighbour had breached the restraining order. The police advised the resident that,based on the incidents reported by the resident, they could not take action in relation to the neighbour breaching the restraining order.
On 25 March 2020, the resident notified the landlord of the incidents that had occurred on 24 March 2020. The resident stated that had the block’s CCTV cameras been working, they might have recorded the perpetrator who damaged her partner’s car. The resident requested the landlord to consider installing new CCTV cameras that were fit for purpose. Following the communication from the resident, the landlord reopened its ASB case.
On 1 April 2020, the landlord wrote to the resident regarding her concerns about the decommissioning of the CCTV in the block. The landlord explained that the system was over ten years old and was “beyond economical repair”. The landlord stated that the system, therefore, did not comply with the Home Office guidelines.
During April to June 2020, the landlord contacted the police on different occasions to check whether they would be taking action against the neighbour for potentially breaching the restraining order. On 15 June 2020, the police wrote to the landlord to confirm they would be taking no further action regarding the incident in March as no direct threats had been made by the neighbour.
On 30 June 2020, the landlord sent a warning letter to the neighbour for breaching his tenancy conditions. The letter stated that the landlord would take action in relation to the tenancy if the neighbour breached the restraining order. The landlord closed the ASB case after sending the warning letter.
The landlord opened a new ASB case on 13 July 2020 as a result of the resident reporting that she had been harassed by the neighbour. The resident provided the landlord with social media messages sent to her by the neighbour, police crime reference numbers showing she had reported the incidents to the police and a letter from Victim Support. The landlord contacted the police on the same day to check whether any charges had been brought against the neighbour and, if so, when he would be due in court. The police replied to the landlord on 14 July 2020 and confirmed that the neighbour had been charged with harassment and breaching the restraining order and was due in court on 10 August 2020.
On 15 July 2020, the landlord wrote to the council’s Housing Registration team regarding her rehousing application. The landlord outlined the ‘exceptional circumstances’ being experienced by the resident and attached a supporting letter from the resident’s doctor. The evidence indicates that after the landlord had contacted the council, the resident successfully bid for an alternative property through the council’s choice-based lettings system (the exact date is unclear).
On 10 August 2020, the resident reported to the landlord that the neighbour had damaged her door by kicking it several times and had therefore breached his bail conditions. The resident was advised by the police that the neighbour’s court case had been adjourned until October 2020.
On 11 August 2020, the resident wrote to the landlord to ask if she could view the alternative property earlier than had previously been agreed. The resident phoned the landlord again on 12 August 2020 to enquire whether she could view the property. The landlord replied on the same day and advised the resident that the property was not yet ready for her to view. The resident advised the landlord that the neighbour had been arrested on 11 August 2020 and it was unclear whether he would be released on bail.
The police contacted the landlord on 19 August 2020 to advise the landlord that the resident had been ‘sectioned’ under Section two of the Mental Health Act 1983 on 11 August 2020 and was being held at a secure psychiatric unit. The police confirmed they had been unable to charge and remand the neighbour, but bail conditions were in place requiring the neighbour to present himself to the police within 24 hours of being released from the psychiatric unit.
On 20 August 2020, the resident viewed and accepted the alternative property.
On 3 September 2020, the landlord was advised by the police that the neighbour was still in the secure psychiatric unit.
The resident moved into her new property on 21 September 2020 and her previous tenancy came to an end on 20 September 2020.
The landlord’s ASB log indicates that the neighbour was due in court on 25 November 2020 and that the landlord emailed the police on 4 December 2020 to check the outcome of the court hearing. The police replied on 7 December 2020 to confirm that the case had been adjourned.
On 16 January 2021, the resident submitted a stage one complaint to the landlord, in which she stated the following:
1. The resident had experienced harassment and stalking from her neighbour for eight years and had first reported the matter to the police in 2013.
2. She had registered with the council for rehousing but had not been awarded sufficient points to qualify for a transfer.
3. The neighbour had continued to make contact with the resident during 2014 via social media and the resident applied for a transfer again in 2015, but once again had not been awarded sufficient points to qualify for a move.
4. The resident reported the ASB to the landlord in 2015 and 2016 following further unwanted contact from the neighbour.
5. In 2016, a restraining order was granted by the court prohibiting the neighbour from contacting the resident. This order was breached in 2017 and he received a six month suspended sentence.
6. During 2016 and 2017, the resident contacted the landlord on various occasions to seek rehousing. The resident stated that she provided many letters supporting her request for rehousing, including letters from Victim Support.
7. The resident said she suffered anxiety and depression as a result of the situation.
8. The resident outlined the events of 24 March 2020 when her partner’s car was vandalised and the neighbour had followed the resident and her partner to her property.
9. The resident had been told by the landlord that the CCTV cameras on the estate had not been working and there were no plans to bring them back into operation.
The resident submitted another complaint on the same day (16 January 2021), which mainly covered her dissatisfaction with the rehousing delays and issues with her new property. However, the complaint also repeated the information about the events that had occurred in relation to the reported harassment by her neighbour and the impact these events had had on her health. The resident confirmed in the complaint that she had not heard from the neighbour since August 2020.
On 19 January 2021, the landlord contacted the police to check the outcome of the neighbour’s court hearing and it was informed by the police that the neighbour had been remanded on bail to reappear in court on 12 April 2021.
On 4 February 2021, the landlord sent its stage one reply, in which it included the following information:
1. The landlord confirmed that its ASB log showed that a case had been opened in 2015 but had been closed as the resident had not responded.
2. In 2017, a further ASB case had been opened and the landlord had sent the neighbour a final written warning after he had received a suspended prison sentence by the court. At the time, the resident had been referred to a support agency as a victim of harassment.
3. In relation to the more recent incidents, the landlord’s ASB log showed that its housing officer had been in contact with both the resident and the police throughout the period.
4. The CCTV cameras had been removed from all of the landlord’s blocks in 2020 as they did not comply with the Government’s policy and there was no programme to replace the cameras.
5. The landlord had sent a warning letter to the neighbour in June 2020.
6. The landlord had been waiting for the neighbour to appear in court, so that it could take possession proceedings once the outcome of the hearing was known. The new court hearing date had been set for 12 May 2021.
7. The landlord had worked with the resident to complete a transfer application form for submission to the council.
8. When the neighbour had been removed from his home, the landlord had stated to the resident that it would offer her hotel accommodation should the neighbour return.
9. The landlord explained that the resident’s new property had required electrical certification before the resident could move in and this was done on 7 September 2020. The landlord also explained that there had been no mention of clearing the garden at the new property, nor of any leaks in the property.
The resident contacted the landlord on the same day (4 February 2021) to say she was unhappy with the landlord’s stage one reply and therefore she wanted to escalate her complaint to stage two.
The resident contacted the landlord on 28 February 2021 to inform the landlord that she had already requested a review of her complaint on 4 February 2021. The resident then wrote to the landlord on 4 March 2021 to make a further formal complaint, in which she outlined the harassment she had experienced in earlier years and the incident regarding the damage to her partner’s car on 24 March 2020. The resident said she was unhappy that the CCTV cameras were not functioning as they might have provided information to identify the perpetrator.
The landlord sent its stage two reply on 4 March 2021, in which it stated the following:
1. Some of the landlord’s staff previously involved in the case had moved to other posts.
2. Some of the points mentioned in the resident’s complaint related to the police and the landlord had no control over the police.
3. At present, the landlord was waiting for the courts to take action against the neighbour. Once the court case was completed, the landlord would take its own action. The landlord could not make use of the police evidence until the case had been through the criminal court.
4. The landlord referred the resident to the council’s legal team if she wanted to submit a claim for compensation. Alternatively, she could seek her own legal advice.
A further letter quoting the complaint reference number was sent by the landlord on the same date (4 March 2021) confirming that the landlord had completed its review of the complaint and the resident should contact the Local Government and Social Care Ombudsman (LGSCO) if she was still unhappy.
The landlord’s ASB record shows that the neighbour received a 30-week custodial sentence on 19 April 2021.
The resident submitted a further complaint to the landlord on 21 April 2021 covering similar points to her earlier complaint of 16 January 2021, but she also included information about reported delays in the processing of her rehousing application and issues relating to her new property.
The resident wrote to this Service on 13 May 2021 and 28 May 2021 to report that she was suffering from post-traumatic stress disorder (PTSD) as a result of the reported harassment by her neighbour. The resident felt that the neighbour should have been evicted in 2016 when the restraining order was granted. The resident also mentioned that she is concerned about one of her new neighbours because they knew she had made an ASB complaint about them.
On 30 November 2021, the LGSCO issued an investigation report confirming it had investigated the resident’s complaint that the council had delayed rehousing her following harassment by the neighbour.
On 28 March 2022, the resident wrote to this Service to confirm that her complaint related to her previous property rather than the property she was rehoused into.

Assessment and findings

Scope of the investigation

On 13 May 2021, the resident stated in her complaint to this Service that she was suffering from post-traumatic stress disorder (PTSD) as a result of the reported ASB and harassment from her neighbour. The Ombudsman does not doubt the resident’s comments regarding her health, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be better dealt with as a personal injury claim through the courts. This is in accordance with paragraph 42(g) of the Housing Ombudsman Scheme, which states that such issues are more appropriately addressed by the courts. The resident may wish to consider taking independent legal advice if she wishes to pursue this option.
For clarification, the Housing Ombudsman has not investigated the resident’s complaints about the arrangements to rehouse her and the reported delays in doing so. These matters were handled by the local authority and fall outside of the jurisdiction of this Service because they do not relate to the provision or management of social housing. Rehousing matters are investigated by the Local Government and Social Care Ombudsman (LGSCO) and, in this case, this Service is aware that the LGSCO has already investigated and issued its final report regarding these matters.
The resident wrote to the landlord on 4 March 2021 and stated that she had experienced harassment and ASB from her neighbour for eight years. The Ombudsman encourages residents to raise complaints with their landlords in a timely manner, which would normally be within six months of the matters arising. This is in accordance with paragraph 42(c) of the Housing Ombudsman Scheme. Therefore, as the resident submitted her stage one complaint on 16 January 2021, the Ombudsman’s investigation has focussed on the events from 2020. The information about harassment and ASB in earlier years has, however, been considered as contextual background.
The resident wrote to this Service to outline various problems she had experienced in relation to the property she moved to in September 2020. A key part of the Ombudsman’s role is to assess the landlord’s response to a complaint and therefore it is important that the landlord has had an opportunity to consider all of the information being investigated by the Ombudsman as part of its complaint response. In this case, this Service has not seen evidence that these issues have exhausted the landlord’s internal complaints procedure. Furthermore, the resident wrote to this Service on 28 March 2022 to confirm that her complaint related to her former property. Therefore, the Ombudsman has not investigated the issues relating to the resident’s new property. This approach is consistent with paragraph 42(a) of the Housing Ombudsman Scheme, which states that the Ombudsman cannot consider complaints unless they have exhausted the landlord’s complaints procedure.

Assessment

The landlord’s response to the resident’s reports of anti-social behaviour and harassment

The landlord’s ASB procedure states: “Contact should be made with other involved agencies to establish their involvement. Fundamental to the process is the need to share information”. The procedure mentions the police as one such agency with which information should be shared.
Following the reported incidents on 24 March 2020, the landlord contacted the police on various occasions during April to June 2020 to enquire whether the police would be taking criminal action against the neighbour for breaching the restraining order. As the breach of a restraining order is a criminal matter, it was appropriate for the landlord to contact the police for further information as the police are responsible for investigating crimes and charging suspects where appropriate.
The police informed the landlord that they would not be taking action regarding the possible breach of the restraining order. However, despite the police’s decision not to charge the neighbour, the landlord sent a warning letter to the neighbour on 30 June 2020. The view of the Ombudsman is that the landlord’s action to send a warning letter was proportionate at that stage because without a police prosecution, the landlord could not, for example, rely on the absolute ground for possession introduced by the Anti-social Behaviour, Crime and Policing Act 2014. This ground allows landlords to apply for possession of a property where, for example, a resident has been convicted of a serious offence. The warning letter was therefore appropriate in the circumstances because it clearly reminded the resident about the ramifications in relation to his tenancy should he breach the restraining order.
The landlord’s ASB log shows that the landlord closed the case immediately after sending the warning letter. Although the Ombudsman has not had sight of the landlord’s guidance on closing ASB cases, the landlord’s ASB procedure states: “each complaint will be monitored regularly by the Investigating Officer…”. Therefore, given the seriousness of the resident’s complaint, this Service would have expected the landlord to have kept the case open for monitoring for a reasonable period. It was therefore a shortcoming on the part of the landlord that it closed the case so quickly and did not monitor the case for a period of time, which would have included regular contact with the resident to check for further incidents. Despite this, the landlord’s ASB log indicates that there was a reasonable level of contact between the resident and the landlord during the period from March to September 2020.
The landlord reopened the case on 13 July 2020 after the resident reported further harassment by the neighbour. The landlord contacted the police on the same day to check whether they intended to charge the neighbour. Again, this was an appropriate action by the landlord because it was seeking information about a potential breach of the restraining order. The police replied on the next day and confirmed that the neighbour had been charged for breaching the restraining order and was due in court on 10 August 2020.
The landlord notified the council’s Housing Registration team on 15 July 2020 that the resident was experiencing ‘exceptional circumstances’ as a result of the ASB and it forwarded a letter from the resident’s doctor supporting her request to be rehoused. Shortly afterwards, the resident bid on an alternative property, viewed and accepted the property. The landlord’s actions in contacting the council about a transfer were reasonable given the seriousness of the neighbour’s actions and the resident’s known vulnerabilities. As mentioned earlier, the landlord was not directly responsible for rehousing the resident and for any delays in doing so.
As per the landlord’s stage one reply, at the time the resident was away from his property (in August 2020), the landlord had informed the resident that it would offer her hotel accommodation in the event the neighbour was released. However, the resident was anxious about her safety and felt that the landlord should have removed her from the property rather than waiting for the neighbour to be released. While the Ombudsman understands that the resident was particularly anxious following the incident with the neighbour on 10 August 2020, this Service considers the landlord’s response to have been reasonable because:
1. The landlord’s ASB log shows that it was in contact with both the police and the secure psychiatric unit at the time in order to monitor the situation;
2. The police had informed the landlord on 19 August 2020 that the neighbour was still in the secure psychiatric unit and that the neighbour had bail conditions to present himself to the police within 24 hours of release so the police could monitor his movements;
3. The landlord had contacted the secure psychiatric unit on 3 September 2020 and had been advised that the neighbour was still located there and the landlord would be informed if this changed;
4. From 20 August 2020, the landlord was aware that the resident had accepted an offer of alternative permanent accommodation and would be moving shortly.
In terms of supporting the resident, the view of the Ombudsman is that the landlord provided a reasonable level of support during 2020 because:
1. There was a reasonable level of contact between the landlord and the resident during the period;
2. The landlord provided support in relation to the resident’s rehousing application by ensuring the council was aware of the ‘exceptional circumstances’ of the resident’s case;
3. The landlord confirmed it would offer temporary accommodation in the event the neighbour was released.
The landlord’s ASB log shows that the landlord maintained contact with the police after the resident was rehoused. This was appropriate as the landlord would still be expected to take action in relation to the neighbour’s tenancy, even though the resident had moved.

The landlord’s decision to decommission the CCTV cameras attached to the block

In 2019, the local authority took a decision to decommission various CCTV cameras as they no longer met the Home Office Surveillance Camera Commissioner’s compliance guidelines. The council’s website explained that the cameras were identified as non-compliant for various reasons, such as obsolete or faulty equipment that was no longer fit for purpose, or cameras being used in areas where little or no crime was recorded.
The Government’s guidance on the use of domestic CCTV was updated in August 2019. The guidance was summarised on its website (www.gov.uk/government/publications/domestic-cctv-using-cctv-systems-on-your-property/) and more detailed guidance was provided in the Home Office’s publication called ‘Surveillance Camera Code of Practice’. One of the principles within the code of practice was that surveillance cameras operating in public places must always have a clearly defined purpose in pursuit of a legitimate aim and be necessary to address a pressing need, such as public safety or the prevention of disorder or crime. In addition, the website stated that CCTV systems should be checked and maintained regularly to ensure they were working properly.
The resident wrote to the landlord on 25 March 2020 regarding damage that had occurred to her partner’s car. The resident was unhappy that the CCTV cameras attached to the block had not recorded the incident. The landlord replied on 1 April 2020 and explained that the cameras did not comply with the Home Office guidelines in place at the time because they were beyond economical repair. The landlord also addressed the question in its stage one reply on 4 February 2021, in which it stated that the CCTV cameras had been removed from all of its blocks in 2020 as they did not comply with “central government policy”. The landlord stated that it had no plans to replace the cameras. The resident was dissatisfied with the landlord’s explanation and in her stage one complaint she mentioned she had been given conflicting explanations about the decommissioning of the CCTV cameras. The resident stated that she had originally been told the cameras were being decommissioned due to a lack of crime reporting in some areas and was now being told that the cameras were defective.
The Ombudsman’s view is that the landlord’s messaging regarding the decommissioning of the CCTV cameras was reasonable because:
1. The information contained in its letter dated 1 April 2020 was that the system did not comply with Government guidelines because it needed repairs, which were considered to be uneconomical to carry out. This was consistent with the messaging on the council’s website in 2019 and with the Government’s guidelines that systems should not be used unless they are working properly.
2. The council’s website in 2019 made it clear that some systems were being removed because they were obsolete, and some were being removed because of low crime reporting. Both of these reasons were consistent with the Government guidance in place at the time.
3. The landlord was clear in stating that it had no plans to replace the CCTV system. While the Ombudsman understands that the resident does not agree with the landlord’s decision not to renew the CCTV system, this Service is aware that landlords have limited financial resources and need to balance competing demands.

The landlord’s complaints handling

The landlord has a formal complaints process consisting of two stages. At stage one of the process, the department responsible for providing the service will investigate and respond to complaints within 15 working days. At stage two, an independent officer will review the complaint and respond within 20 working days.
The landlord’s complaints policy states that it will acknowledge complaints and provide a reference number.
The resident submitted a stage one complaint to the landlord on 16 January 2021 and the landlord responded with its stage one reply on 4 February 2021, which was 13 working days after receiving the complaint. The landlord therefore replied within the appropriate timescale as per its complaints policy.
The resident phoned the landlord on 4 February 2021 to explain that she was unhappy with the landlord’s stage one reply and therefore wanted to escalate her complaint to stage two. The evidence indicates that the landlord did not acknowledge this request, which was a shortcoming on the part of the landlord because the resident then had to contact the landlord again on 28 February 2021 to explain that she had requested the landlord to escalate her complaint on 4 February 2021. The resident also re-submitted her complaint on 4 March 2021.
Although the landlord did not acknowledge the stage two complaint, it did send a stage two reply on 4 March 2021, which was 20 working days after 4 February 2021 when the resident had requested the landlord to escalate her complaint. The landlord therefore replied within the appropriate timescale as per its complaints policy. However, the evidence shows that the stage two review was carried out by the same officer who replied to the stage one complaint. This was inappropriate as the landlord’s complaints policy makes it clear that the stage two review should be carried out by an independent officer. Also, the Ombudsman’s complaint handling code states: “The person considering the complaint at stage two, must not be the same person that considered the complaint at stage one”. The landlord’s failure to arrange for an independent person to review the complaint at stage two meant that the landlord missed the opportunity to examine the complaint from a different perspective. It also left the resident feeling that her complaint had not been properly reviewed.
The landlord’s stage two reply did not initially signpost the resident to the Ombudsman. However, the landlord sent a follow up email on the same day explaining that the resident had now been through the landlord’s internal complaints procedure and if she remained unhappy, she could contact the Local Government and Social Care Ombudsman (LGSCO). As the resident’s concerns related to her occupation of the property, and was therefore a housing management activity, the landlord should have signposted the resident to this Service (the Housing Ombudsman) instead. It is unsatisfactory that the landlord did not ensure that the resident was given appropriate information on her next steps following the end of the complaints procedure. The incorrect signposting by the landlord meant there was a delay in the resident contacting the Housing Ombudsman as indicated in her letter to this Service on 28 May 2021, in which she said: “I would have complained sooner to the Housing Ombudsmen but I was told as seen on the email from [the landlord] to complain to the Local Government and Social Care Ombudsman who then told me to also complain to the Housing Ombudsman”.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s reports of anti-social behaviour and harassment.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s concerns about the CCTV cameras attached to the block.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure by the landlord in its complaints handling.

Reasons

The landlord kept in close contact with the police and maintained a reasonable level of contact with the resident. It also assisted the resident with her rehousing application by providing supporting information to the council and sent a warning letter to the neighbour. Finally, the landlord offered to provide hotel accommodation to the resident in the event the neighbour was released.
The landlord explained the reasons for its decision to decommission the CCTV cameras and these reasons were consistent with both the Government guidance and with the earlier advice issued by the council.
The same member of the landlord’s staff replied to the stage one and stage two complaints and the landlord incorrectly signposted the resident to the LGSCO in its stage two reply rather than to the Housing Ombudsman. The landlord also failed to acknowledge the resident’s stage two complaint.

Orders and recommendations

The landlord is ordered within four weeks of this report to pay the resident £100 in relation to its complaints handling.