Canterbury City Council (202011397)

REPORT

COMPLAINT 202011397

Canterbury City Council

11 August 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 is about:
1. The landlord’s handling of the resident’s reports of damage to her belongings.
2. The landlord’s handling of the resident’s reports of antisocial behaviour (ASB).
3. The landlord’s handling of rubbish removal.

Background and summary of events

Policies and Procedures

The landlord partly owned East Kent Housing which provided its housing management services for it and three other local authorities. On 1 October 2020 staff were returned to the landlord.
The landlord’s ASB Policy states, “There are some types of complaints that while we recognise they may constitute ASB or neighbour nuisance we may not be the lead investigator of. These are …
1. Environmental issues such as abandoned cars, bonfires and fly tipping.
2. Drug dealing.

When incidents of this type are reported to EKH we will provide advice and signposting to the agency best placed to investigate these allegations and work with partner agencies where required, to support resolution of these issues. Where a clear breach of tenancy has been proven by a partner agency, EKH may rely on this and consider taking tenancy enforcement action”.

The ASB Policy also states that “In some cases ASB can be resolved through the use of early warnings and interventions. These interventions include but are not limited to:
1. Written or verbal warnings.
2. Joint visits with the Police or other agency representatives.
3. Prompt action for repairs as a result of anti social behaviour e.g. the removal of graffiti.
4. Referral to Environmental Health to investigate a statutory nuisance.
5. Referral to the Mediation Service.
6. Acceptable Behaviour Agreements.
7. Support for vulnerable alleged perpetrators on a case by case basis.
8. Extension of Introductory and Starter Tenancies, where applicable.
9. Multi agency partnership working”.

Summary of Events

The resident’s property is a ground floor flat in a block.
The resident has stated that there was damp and mould in her property that was only resolved on 2018 when the landlord repaired some guttering at the rear of her property. She noted that the landlord had assessed that the damp and mould were due to lifestyle factors and that many of her possessions were damaged because of the mould.
The resident has made allegations that her neighbour, whose tenancy began in January 2019, her partner and other associates have been responsible for ASB incidents including overflowing rubbish, dumped items, noisy arguments, threats to fight her and vandalism. She has stated that when the neighbour made a counter-allegation against her in June 2019, the landlord asked the police to make a welfare check on her as the neighbour was very angry. On 15 July 2019 the landlord closed this ASB case after it did not receive a response from the resident to a letter sent to her.
During February 2020 the resident logged complaints that her neighbour kept rubbish outside her property and constantly overflowing bins in the public footpath.
On 1 May 2020, the resident reported that she was unhappy with arguments and constant mess from the neighbour and her partner. She described an incident where the neighbour’s partner did not social distance. She also advised that the neighbour had installed a tumble dryer in the communal area which caused noise.
On 12 May 2020 the police carried out a drugs raid at the neighbour’s property. On 13 May 2020 the resident phoned the police after having an argument about the non-removal of the tumble dryer and being shouted at by the neighbour.
The resident provided diary sheets covering 1 – 6 May 2020, 10 – 12 May 2020 and 13 – 24 May 2020 detailing incidents of noise, dumped rubbish, cigarette butts, the tumble dryer in the communal area and overflowing bins. She also referenced the police raid and feeling threatened by the neighbour and an associate.
On 29 May 2020 the resident completed the landlord’s complaint form reiterating her concerns. She stated that the neighbour and her sister “who visits all the time despite lockdown, make threats of violence against me” and “and I can’t open my window without getting abuse or fearing abuse and threats to fight me”.
On 3 June 2020 the landlord attended the block, and its notes indicate that it saw the neighbour wheel her tumble dryer back in her property. On 7 June 2020 she again reported her neighbour leaving rubbish outside.
On 9 June 2020 the landlord made an action plan, noting the resident was complaining about tumble dryer noise, dropped cigarette butts, the drugs raid, arguments and threats of violence, constant comings and goings and firecrackers being put outside the resident’s door with black gloves (the resident has advised firelighters were actually placed). The landlord noted that the resident stated that incidents were daily although the neighbour was not at her property lately. The resident was to keep a record of further domestic incidents, to continue to gather evidence and to contact police to report any incidents of criminal activity. The landlord agreed to liaise with the police and take necessary legal action as a result. The action plan noted that the resident was happy for the landlord to contact the neighbour but that she did not wish to engage in mediation.
On 9 June 2020 the resident reported she was advised not to complete diary sheets in May 2020 as the neighbour was being evicted but today, she saw them moving back in. She asked for a call back, but it is not evident that this took place.
On 11 June 2020 the resident reported expandable foam in her locks and foodstuff thrown at the door. The incident was also reported to the police. The landlord advised it would take legal action against the neighbour if there were criminal charges. It also confirmed to the resident that there were no conditions in place to prevent the neighbour returning to the property at that time. It reiterated its advice to the resident to gather her own evidence of ASB and to report criminal incidents to the police.
The resident made further reports of items in communal areas including on 19 June 2020 stating that there was dumped carpeting. The landlord advised this did not fall under its ASB remit but stated it would refer the dumped items to the estates team to clear.
On 9 September 2020, the resident advised again she had been told to not compete diary sheets as neighbour was being evicted but now it appeared she had moved back in. The resident further contacted the landlord on 10 and14 September 2020 stressing she was scared because her neighbour had moved in and was fearful of repercussions. The landlord confirmed that she should report any incident to the police and it, but that it needed evidence that neighbour was responsible.
On 7 October 2020 the resident raised the Community Trigger highlighting reports she had made in June 2019, May 2020 and September 2020. The resident sent further letters on 9 October 2020 in which she described her experiences since the neighbour moved in and also her experiences with the previous neighbour and his friends since which were also upsetting.
On 14 October 2020 the landlord advised the resident that she needed to continue making reports, otherwise it could not prove that her neighbour was causing the ASB complained of. The resident advised that rubbish was building up again now that the neighbour had returned.
On 21 October 2020 the landlord made a referral to its Sustainment Team to provide support to the resident given that she had raised the Community Trigger; however, the resident did not anticipate the call and declined assistance. During an exchange of correspondence about the matter the resident mentioned her concerns about dogs’ mess not being cleared although the landlord understood that the neighbour did not have a dog.
On 26 October 2020 the resident wrote to the landlord stating that she was seeking compensation for seven years of damp. She stated that she had been advised that she was causing the damp until 2018 when guttering at the property was changed. She also asked for compensation for living next to a violent drug dealer for two years.
On 27 October 2020 the landlord wrote with the outcome of the Community Trigger. It stated that the tumble dryer was taken back from the communal hallway into the neighbour’s flat on 3 June 2020, the police had not received a report of the vandalised door on 1 June 2020 and there was no evidence who left rubbish or put foam in her key lock. The response noted that the police had not received recent reports since July 2020 and that the neighbour had appealed against legal action and was “given a final opportunity”. It asked the resident to complete diary sheets. In response the resident made a Subject Access Request (SAR) asking for information from her tenancy file.
In a response to the MP after the Community Trigger meeting, the landlord advised that the resident had not made reports considered to be ASB and that she had not completed diary sheets or contacted the police which made investigating complaints difficult. It advised reports of rubbish could not be linked to the neighbour but would still be investigated by its Estates Team. It also noted that the police had not received any reports since July 2020.
On 9 November 2020, the resident reported being yelled at. In response the landlord advised that it would not contact the neighbour without her consent but explained that it could not take the case further without doing so. It explained that it needed to demonstrate to a judge that it had repeatedly warned a perpetrator and sought to work with them for successful legal action; hearsay alone would be insufficient.
On 30 November 2020 the landlord advised that rubbish was not considered ASB, and that the resident should report this matter to its Estates Team. It asked the resident to confirm whether she would complete an incident diary who advised she would not as the neighbour might “go on another vandalism spree”.
The landlord’s records indicated that on 2 December 2020 it closed the ASB case although it would check with its Estates Team about rubbish. The resident made another report of rubbish piling up and blocking paths on 16 December 2020.
The resident again reported rubbish between 15-20 January 2021. In response the landlord advised that it would visit, and the correspondence on the case indicates that the landlord carried out a litter pick after which the resident advised she could “see no rubbish for the 1st time in about 9 months”.
The resident also contacted this Service which wrote to the landlord on 3 February 2021 asking it to raise a formal complaint about the landlord’s handling of rubbish, the resident’s reports of damp in the property and her reports of ASB from her neighbour.
On 15 February 2021 the resident reported dogs’ mess outside her flat which she attributed to another resident within the block with three dogs. She also reported that several people were dumping items.
On 10 March 2021 the landlord sent a letter to residents advising them not to drop cigarette butts which were a fire risk and breach of tenancy. On the same day the landlord advised the resident that it wanted to inspect her property in response to her claim.
Following another request from this Service on 1 April 2021 the landlord responded to the resident’s complaint stating that when it visited to enquire about the damp and mould in February 2021, she had confirmed there was no longer a mould issue in the property. Therefore, it would not be considering compensation. Regarding the resident’s request to investigate reports of ASB from the neighbour, the neighbour had not resided at her property since 21 December 2020, and there were no current reports of ASB to investigate therefore there was not a current open ASB case for this address. Any historic complaints made by the resident regarding her neighbours would be provided within her SAR request. On 6 April 2021 the landlord clarified that the resident could escalate her complaint.
On 11 April 2021 the resident escalated the complaint stating that:
1. She had contacted the landlord and its contractor many times over seven years as items were ruined; however, the response to her SAR did not contain the reports she had made. A consultant had on two occasions identified damp. She was held responsible for the damp which only stopped in 2018 when the contractor replaced part of the guttering. The resident noted that she had previously sent a spreadsheet detailing damage of nearly £8,000 which did not include sentimental items.
2. She had written and phoned about her current neighbours who were aggressive and dumped rubbish. She noted it was hard to capture evidence. She expressed her dismay that the neighbour had won her appeal against her eviction and was back at the property.
3. She was unhappy with the behaviour of the previous neighbour and about things she had learnt about him since his tenancy ended. She raised concerns about the conduct of the police in relation to that neighbour and the relationship between the landlord and the police. She advised that both the current and previous neighbours had vandalised her front door for keeping ASB diaries and reporting them to the police.
4. On the day that the current neighbour was raided for drugs the landlord had advised her not to keep a diary as the neighbour would be evicted.
5. She suspected she was receiving malicious calls by friends of the former neighbour.
6. She was unhappy with the outcome of the Community Trigger which was that she should resume completing diary sheets.
7. She also questioned what had happened to emails where she had informed the landlord of ASB incidents.
8. Rubbish that she reported on 16 December 2020 was still there. She understood that the landlord was sending the neighbour to clear the rubbish.
On 28 April 2021, the landlord sent the Stage 2 response to the complaint. It noted:
1. With regards to the loss of irreplaceable items as result of damp, its Responsive Repairs team was refused access on the last visit as there was no further problem with damp.
2. It was not responsible for the process or outcome of the Community Trigger. There was insufficient information for formal action.
3. It had dealt with reports of rubbish as promptly as possible. Photographs provided showed additional waste which was common and other pictures were unclear. The tumble dryer had been promptly removed.
4. There was no evidence of the neighbour being the dog owner. In response to resident’s report it had written to all residents.
5. The police had investigated the resident’s front door being vandalised and no evidence was found to link it to her neighbour.
6. The referral to tenancy sustainment was intended to ensure that the resident had a support network and contact she was comfortable with.
7. Staff did not recall asking the resident not to complete diary sheets, and it apologised for any miscommunication
8. It was sorry to hear that the resident was not happy and fearful in her home and suggested she discuss her concerns with a Sustainment Officer.
The resident responded stating her dissatisfaction with the Stage 2 response. She stated that threats of violence were ignored and that there were piles of rubbish for months. She also noted that the neighbour’s friends were staying in her property and coming and going every 15 minutes which was intimidating.
On 19 May 2021, the landlord carried out a damp survey at which no mould was witnessed. It recommended a repair to kitchen extractor fan and for the tenant to make good staining to a wall in lounge from a historic issue.
It is understood that the resident’s neighbour is no longer at the property.

Assessment and findings

The landlord’s handling of the resident’s reports of damage to her belongings.

In her correspondence with the landlord, the resident has mentioned damage to belongings occurring between 2011 and 2018. However, there is no evidence of a formal complaint or claim being made until October 2020. The Ombudsman encourages residents to raise complaints with their landlords in a timely manner, so that the landlord has a reasonable opportunity to consider the issues whilst they are still ‘live’, and whilst the evidence is available to reach an informed conclusion on the events which occurred. As the substantive issues become historic it is increasingly difficult for either the landlord, or an independent body such as the Ombudsman, to conduct an effective review of the actions taken to address those issues.
This is in accordance with paragraph 23(e) of the Scheme, which states that the Ombudsman will not consider complaints which were not raised with the landlord as a formal complaint within a reasonable time, which would normally be within six months of the matter arising. In view of the time periods involved in this case, taking into account the availability and reliability of evidence, this assessment does not consider the landlord’s handling of reports of damp and mould in 2018 and prior.
It should also be noted that it is not the role of this Service to determine whether a landlord has been negligent and is liable for damages; such decisions should properly be made by the courts or insurance companies. The Ombudsman is concerned in establishing whether there was service failure and as such, this investigation is focused on the landlord’s actions in responding to the more recent events and, in particular how it responded to the resident’s claim for damages to her belongings.
As the resident made a claim in respect of damp it was reasonable that the landlord sought to inspect as this would enable it to take an informed view of the condition of the resident’s property and possibly confirm any damaged items claimed for. It transpired that the resident initially did not see the value of the visit given that the damp had gone. At the second visit in May 2021 the landlord did not identify damp or witness damaged items. Nonetheless, it was reasonable that the landlord pursued an inspection in the first instance given it had received a claim from the resident relating to the condition of her property and needed to investigate before formulating a response.
However, there was a delay in responding to claim which the resident originally made on 26 October 2020. Having received a claim from the resident the landlord had a responsibility to outline its position including any further steps to be taken. The landlord did not respond at the time and only sought to visit several months after, according to the evidence provided to this Service. As such there was an unreasonable delay in the handling of the claim which left the resident in a position of uncertainty.

The landlord’s handling of the resident’s reports of antisocial behaviour (ASB)

The assessment of this complaint does not include an assessment of the landlord’s handling of reports of rubbish / dumped items. This has been defined and dealt with as a separate complaint.
It is important to reiterate at the outset that it is not for this Service to determine if the behaviour evidenced here constituted ASB, as that was a judgement which fell to the landlord to determine. It must also be recognised that responsibility for ASB lies with the perpetrator, not the landlord. The landlord, however, has a responsibility to ensure that it takes appropriate and proportionate action to address and seek to resolve reported ASB, and that it has adequate and effective procedures in place for doing so.
It should also be noted that a resolution which suits all parties may not be possible in cases where there are lifestyle differences or personality clashes, resulting in neighbour disputes rather than ASB, for example. However, where ASB has been identified the landlord has a responsibility to address this and be seen to be taking proactive action in doing so.
Upon receiving reports of alleged ASB the landlord needs to gather evidence to establish whether the behaviour is unreasonable and constitutes ASB. Its procedures must also ensure that it remains impartial and does not seek to apportion responsibility for behaviour until it has established the facts. In this regard it was appropriate that the landlord confirmed an action plan on 9 June 2020 whereby the resident should log incidents and report criminal incidents to the police. Similarly, it was also appropriate that the landlord reiterated to the resident in its further correspondence that she should make reports. Ultimately specific reports will allow a landlord to ascertain the nature, frequency and impact of reported ASB which in turn can inform what action can be taken against the alleged perpetrator.
It is also crucial that ASB is addressed quickly to prevent it from escalating in the first instance. Conclusive evidence is not required for this to happen; the landlord is entitled to approach the alleged perpetrator of ASB to put an allegation to them to enable them to respond and where appropriate, to take steps to change their behaviour and to put things right. In speaking with an alleged perpetrator about a matter reported, the landlord is not making a finding of fact but facilitating an open dialogue and a reminder of tenancy responsibilities, where relevant. Before a landlord contacts an alleged perpetrator, it should inform and gain approval of the person reporting the ASB. Its action plan of 9 June 2020 indicates that the resident allowed it to do so at that point in time.
It is not evident that the landlord approached the neighbour about the resident’s reports, the only action taken against the neighbour resulting from the drugs raid. The resident completed diary sheets for May 2020 which provided a basis for contacting the neighbour, although it is not clear when the landlord received them. It would appear that the landlord’s reliance on taking action in response to the drugs raid and the fact that the neighbour moved out for a period of time superseded any action that may have been taken to resolve the resident’s reports received at that time. However, the resident’s reports in the diary sheets required consideration and a response in their own right.
After the action plan of 9 June 2020 the landlord asked the resident to complete log incidents / completed diary sheets several times which was appropriate so the extent of ongoing problems could be assessed and specific incidents could be raised with the alleged perpetrator. However, the resident in this case did not complete further diary sheets and there is no evidence that incidents were reported to the police as also suggested. Therefore, it was reasonable that the landlord did not consider it had reason to contact the neighbour about the resident’s reports of ASB (aside from the rubbish and dumping issue). Furthermore, given the absence of further diary sheets, it cannot be conclusively stated that the landlord’s decision not to contact the neighbour about the resident’s diary sheets of May 2020 fundamentally impacted the course of events to the resident’s detriment.
The landlord also took steps to manage the resident’s expectations on the possibility of taking formal action against the neighbour on the basis of her reports. It did this by advising her that it needed to demonstrate to the court that it had repeatedly warned a perpetrator and sought to worked with them for successful legal action and that hearsay alone would be insufficiently strong evidence. This advice was appropriate given the evidential threshold required for an application for a court order to be successful.
The landlord’s action plan of 9 June 2020 states that it offered to arrange mediation between the resident and her neighbour. Mediation is an option noted in the landlord’s ASB policy and often used to resolve neighbour problems before they escalate. It allows the parties to understand the view of the other party and reach a mutually agreed way to live together in an amicable way. This Service acknowledges that the resident did not wish to engage in mediation; nonetheless it was reasonable and in accordance with its policy that the landlord explored this option.

The landlord’s handling of rubbish removal.

In her correspondence from February 2020 and in her diary sheets for May 2020, the resident reported the regular accumulation of rubbish and dumped items. She largely attributed this to her neighbour. The landlord’s tenancy agreement states that residents should not be “Dumping or hoarding rubbish either on communal land (including bin areas) or in your own garden or property. This includes items of household furniture or appliances or car parts”. As such the build-up of rubbish in communal areas was a potential tenancy breach (if carried out by residents of the block or their visitors) that the landlord had a responsibility to address.
The landlord’s ASB policy recognised that environmental issues can be ASB or neighbour issues. The policy notes that the ASB team is not the lead investigator. In this regard the landlord was entitled to refer rubbish and fly-tipping to its Estates Team which had responsibility for clearing items. Nonetheless, the landlord still had a responsibility to consider to what extent this was a consequence of ASB, separate to the clearance of the rubbish by the Estates Team. However, there is no evidence that the landlord obtained information from the Estates Team or otherwise took a view on the amount and frequency of built-up rubbish and dumped items in communal areas as complained by the resident. It was also inconsistent with the tenancy agreement and its ASB policy that the landlord advised the resident rubbish was not an ASB issue. This contributed to the resident’s perception that the landlord was inactive in its response to this issue.
The landlord did not contact the neighbour about the resident’s reports of rubbish or dumped items therefore missed opportunities to raise this aspect of the resident’s case with the neighbour. Whilst the landlord did not identify any particular individual as being responsible for dumping or hoarding rubbish, this did not prevent it from seeking to resolve the resident’s concerns by writing a block letter reminding residents of their tenancy obligations, or at least considering whether this would have been a proportionate response. From the evidence provided to this Service the landlord did not do this in a prompt manner, only writing to residents on 10 March 2020 and then only addressing the cigarette butt issue. Therefore, it is concluded that the landlord did not take sufficient steps to investigate and manage the repeated build-up of rubbish that the resident reported.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of the resident’s complaint about its handling of her reports of damage to her belongings.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the resident’s complaint about its landlord’s handling of her reports of antisocial behaviour (ASB).
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of the resident’s complaint about its handling of rubbish removal.

Reasons

There was a delay by the landlord in responding to resident’s claim for damaged belongings which the resident originally made on 26 October 2020.
It was appropriate that the landlord asked the resident to complete diary sheets. Given that it did not receive a log of specific incidents or supporting evidence of ASB, it was reasonable that the landlord did not consider it had reason to contact the neighbour. It was reasonable and in accordance with the resident’s reports that it offered mediation. The landlord also took steps to manage the resident’s expectations on the possibility of taking formal action against the neighbour on the basis of her reports.
The landlord did not take sufficient steps to investigate and manage the repeated build-up of rubbish that the resident reported.

Orders and recommendations

Orders

The Ombudsman orders that the landlord within the next four weeks:
1. Apologise to the resident for the failures identified in this report.
2. Pay the resident £100 compensation for the distress and inconvenience caused by the delay in responding to her claim for compensation.
3. Pay the resident £150 compensation for the distress and inconvenience caused by the failures in investigating and managing the repeated build-up of rubbish that the resident reported.

Recommendation

The Ombudsman requests that the landlord confirms its intention regarding the following recommendation within the next four weeks:
1. The landlord reviews its procedures for dealing with complaints of Environmental Issues such as rubbish in communal areas and fly-tipping. In particular consideration should be given to how communication between different teams can best be carried out and how problems including tenancy breaches best be managed.