Sandwell Metropolitan Borough Council (201913046)

REPORT

COMPLAINT 201913046

Sandwell Metropolitan Borough Council

29 November 2022

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s:
1. Handling of the resident’s antisocial behaviour (ASB) case.
2. Response to reports that the fence had been removed.

Background and summary of events

The resident is a tenant of the landlord, and his property is an end of terrace house. There is fencing at the front of the property which forms the boundary to his neighbour’s property.
The complaint relates to a long running dispute between the resident’s family and their neighbour and his family. Both parties have made multiple reports of ASB about the other since 2013.
The resident has made similar complaints about the landlord’s handling of his reports about ASB by the neighbour and his family to this Service. He complained about the handling of reports in 2017, which was determined by this Service in September 2018, and the handling of reports made between August 2018 and July 2019 which was investigated by this Service in January 2020. As such, this complaint covers events that post-date our previous determinations.
Around April 2019, the neighbour who was previously a tenant of the landlord, purchased his home under the Right to Buy (RTB) scheme to become an owner occupier.
The landlord’s ASB policy set out that it will respond to “serious complaints” (including hate crime and harassment) by contacting victims within 24 hours. It further says that it will respond to other complaints within five working days.
In regard to harassment / hate crime, the policy says that “we take harassment/ hate crime in any form against any member of our community extremely seriously” and that “Hate crime involves any criminal offence which is perceived, by the victim or any other person, to be motivated by hostility or prejudice based on a personal characteristic” including disability.
The ASB policy explains that “It is essential when dealing with complaints effectively to intervene at an early stage and tackle problems quickly to prevent them from escalating. The council will utilise the intervention it deems most appropriate when dealing with a case”. It further explains that such interventions include verbal and written warnings, mediation, restorative justice and good neighbour agreements. The policy further states “We will, where appropriate, take action against individuals engaging in antisocial behaviour in the borough including residents, leaseholders and owner occupiers”.
The policy also recognised that “Victims will be able to use the Community Trigger to demand action, starting with a review of their case. Agencies including councils, the police, local health teams and registered providers of social housing will have a duty to undertake a case review when someone requests one and the case meets a locally defined threshold”.
The landlord has a two stage complaints procedure. At Stage 1 the landlord will respond within 10 working days. The timeframe for responding to a Stage 2 complaint in 20 working days.

Summary of Events

The resident has stated that the landlord inspected his fence three times in 2019 after he reported that his neighbour was damaging the fence. He also states that he went to the landlord’s office on 26 June 2019 to report that his neighbour was damaging the fence posts. He states that the receptionist showed him on screen his repairs file which had a record of him raising a request for his garden fence to be removed in line with a garden project. The resident states that he advised the receptionist that he did not raise this request and when he got home, on checking his online account with the landlord the repair request had been deleted.
On 28 June 2019, the landlord recorded that the neighbour asked for permission to remove the fence as part of a landscaping job they were carrying out.
On 22 October 2019, the landlord confirmed to the resident that it had spoken to the neighbour about a report of derogatory comments. However, on 25 November 2019 the resident reported further incidents of verbal abuse occurring on 14 and 17 November 2019.
The landlord’s internal correspondence at this time noted that it would only consider recent events and not revisit historical matters from previous years. It spoke to the resident on 5 December 2019 who agreed to mediation and to download the noise app. The landlord’s internal notes indicate that it viewed a recording of incidents played by the resident “but nothing could be heard that would substantiate the complaint”.
The landlord advised the resident that it would ask the neighbour to attend an interview on 19 December 2019. After the neighbour did not attend the appointment, the landlord arranged new appointment made for 24 January 2020. Although the neighbour did not attend the interview the landlord spoke to his partner. The partner denied all allegations and made a counter-allegation. The landlord made further efforts over the next few weeks to confirm if the neighbour wished to engage in mediation.
The landlord and police carried out a joint visit to the neighbour on 28 February 2020 at which it raised the resident’s reports; however, the neighbours attributed problems to the resident’s behaviour towards them and stated that they did not wish to engage with options the landlord had proposed which included mediation. The landlord advised the resident of the outcome of the visit on 5 March 2020 and advised him to report any further incidents.
The landlord arranged a joint meeting with the police the resident’s property for 12 March 2020. Its records indicate that the purpose was for the police to provide its perspective on whether the incidents the resident was reporting were criminal offences. However, the meeting was cancelled by the police due to an urgent situation arising. The landlord then advised that it had made a provisional appointment with the police for 26 March 2020. The landlord cancelled the meeting of 26 March 2020 due to the introduction of Covid-19 lockdown but advised the resident that he could continue to report incidents and send in CCTV footage.
Over the next three months the resident reported further incidents involving the neighbour, mainly him mocking him and making derogatory comments. He also advised again that the fence had been damaged. The correspondence from this time notes that the landlord stated there was no evidence that the neighbour had damaged the fence. In response to the resident reporting an instance of loud music, the landlord suggested he make recordings on the noise app.
On 6 July 2020 the police visited the resident. On the same day, the police emailed the landlord explaining why it believed that a recent incident was not a hate crime and that other incidents reported were not new. The police also stated that there was no evidence to support the resident’s allegation that the neighbour had caused a crack in the concrete gravel board of the fence. Subsequently, the landlord advised the resident that the police had advised it that it did not consider he was subject to harassment or a hate crime. It advised that it could not carry out home visits at that time although it could “potentially change this” if matters changed. However, it was not sure what difference this would make given the police’s findings.
After the resident advised that he had wanted to show the police seven years of evidence the landlord responded stating that it was “under the impression everything was mentioned however if you feel as though there is a lot more evidence for them to see then I am happy to arrange a meeting to discuss all of the evidence you have, however this will of course be when we are able to do so”.
On 14 September 2020 the resident asked the landlord if his ASB case was still open. The landlord advised that it was and that it had received his recordings although as the recordings were from June it had not taken further action. In response to a CCTV recording provided by the resident from August 2020, the landlord on 28 September 2020 advised that it could not be proven that the neighbour was talking about the resident but that it had arranged for Environmental Health to open a noise case
On 1 October 2020, contractors carrying out works to the neighbour’s driveway for him attended the property. It started to undertake work to the party fence, including removing the concrete beneath gravel boards and removing the lateral support to the posts supporting the fence. The resident reported these actions to the landlord which went on site that day. The landlord informed the neighbour that no further works that affected the boundary fence should be carried out until it had attended. On 2 October 2020 the landlord visited and established that the driveway works had temporarily made the fence insecure but the fence would regain stability once the driveway was re-laid. It is understood that the neighbour erected another fence next to the resident’s fence.
On 5 October 2020 the landlord held a conversation with an advocate for the resident. Later that month the resident became aware of the conversation and believed that the landlord had made damaging and demeaning comments about him, therefore he asked the landlord to provide copies of its notes of the conversation.
On 6 October 2020, the landlord advised the resident that it was closing his ASB case. It advised that the police should investigate alleged false/malicious reports. It noted “from what I understand, your neighbour has asked permission to replace the boundary fence, you have declined to allow this to happen. Housing and Property Services have inspected and found the boundary to be in the correct location and the fence in a serviceable condition. I fail to see how your neighbour making alterations / improvements to their driveway (independent of you) can cause you harassment, alarm or distress as they have now kept the fence in situ and made alterations on their own land”. The landlord further advised that there was no evidence of harassment by the neighbour and it had arranged for Environmental Health to assess whether there was statutory noise nuisance. It also suggested that the resident activate the Community Trigger for an independent review of the case.
On 17 March 2021 the resident raised concerns with the landlord that his neighbour’s CCTV camera was pointing to his bedroom On 24 March 2021 landlord emailed the resident stating he should refer his concerns about his neighbour’s CCTV to the Information Commissioner’s Office (ICO), which he was already in contact with. It noted that it would only check whether tenants had complied with their tenancy agreement by asking permission to install CCTV, and that the neighbours were private residents in any case.
On 26 March 2021, the resident stated that he believed the landlord when responding to a Subject Access Request (SAR) did not provide all notes from the conversation of 5 October 2020 and that he was unhappy it did not give permission for the advocate to release her notes.
On 28 April 2021 the resident obtained an injunction against his neighbour.
On 10 May 2021 this Service notified the landlord that the resident had raised a complaint and that it should respond within its complaints procedure. We advised that the resident had complained that it had allowed the neighbour to purchase his property under the RTB, about the handling of his requests that the neighbour’s CCTV did not point towards his windows, that it did not believe that he was making “valid” reports. We advised that the resident had also alleged that the neighbour had impersonated him by asking the landlord to pull down the fence between the properties.
On 8 June 2021 the landlord sent the Stage 1 response to the complaint, noting that its response of 24 March 2021 had addressed the resident’s concerns about CCTV and that it did not believe he was making “valid points”. It added that it was unable to share information about the purchase of a home with a third party and that there were no repair jobs booked for the fence in June 2020 [this appears to be a typographical error as the resident had referred to an incident in June 2019] or evidence that anyone had raised repair requests purporting to be the resident. Its repairs team has also confirmed that alterations had been completed to a reasonable standard.
On 24 June 2021 the resident made another SAR asking for notes of conversation of 5 October 2020 and complained that the landlord had not previously provided then under previous SAR’s. On 20 June 2021 the landlord advised that it had already provided the notes for the conversation and held no other notes. The landlord added that related notes taken by a third party were not approved agreed by it and that it could not approve or authorise the release of that organisation’s data.
On 1 July 2021 the resident emailed his Stage 2 complaint. He stated:
1. He was unhappy with the advice provided by the landlord in the phone call with his advocate in October 2020 and that he believed that it had not disclosed personal information about the call.
2. He did not want details of the neighbour’s RTB application but an explanation of why the landlord had processed the neighbour’s RTB application even though it had the option of suspending it. At the time, there was an open ASB case, a police warning in September 2017, a pending housing ombudsman investigation and he had started a private injunction.
3. He had found out in 2021, after his neighbour had provided pictures from his CCTV in court, that the neighbour’s camera was pointed to his house.
4. The landlord did not see evidence of the fencing job that was raised in his name because it had delete the job minutes after he had left the office.
5. He had been told to put seven years of evidence for the meeting arranged for March 2020. The landlord then cancelled the meeting even though the police had only considered one incident.
6. The landlord had not acted on reports made from November 2019 to June 2020.
On 19 July 2021 the resident sent the landlord a screenshot of a service request raised and closed on 26 June 2019 from his online account. He has stated that this was evidence that he attended the landlord’s office that day and had requested a senior member of staff call him after he found that the neighbour raised a job that day purporting to be him.
On 3 August 20201 the landlord sent the Stage 2 response. It stated:
1. It had met its obligations under the Data Protection Act by providing notes of the phone conversation with the advocate. Two separate responses regarding the conversation, sent on 21 April 2021 and 30 June 2021, had been sent to the resident clarifying the position of the third-party notes, with the second following it seeking advice from its Information Management Team.
2. An application to suspend the neighbour’s RTB in 2019, which required a punitive order made in court, was unlikely to succeed and therefore it would have been an inappropriate use of Council funds to make an application, especially as there were no findings of facts of ASB. It noted that an open ASB case or an open Ombudsman case did not prove there was ASB and in addition there had been counter-allegations. It noted that it would set a dangerous precedent where a tenant’s right to buy could be delayed indefinitely by repeat allegations, even if there were no finding of facts. The landlord advised that it would be inappropriate to rely on a behaviour warning from over a year and a half previously to seek to suspend the right to buy. Regarding the private injunction, the landlord further explained that it was not the purpose or intent of the legislation to suspend a right to buy while other court proceedings for which there had yet been no findings, were progressed.
3. It would not consider historic reports of ASB and whilst the resident stated that he now had proof in 2021 of the positioning of his neighbour’s CCTV, his neighbour’s property was no longer under tenancy conditions, therefore the resident should contact the ICO.
4. There was no evidence that someone had stolen the resident’s identity and booked a job online to remove fencing. There were no jobs of this nature booked on June 2020. It noted that the repair request that the resident had shown from his online account related to 26 June 2019 and to a request for an inspection. The request appeared to have been logged to the resident’s account as the result of an administration error rather than as a result of any malice or fraud for which it apologised.
5. The police had interviewed the resident on 6 July 2021, then it wrote to the resident to confirm the outcome. After the resident insisted on a meeting, the landlord agreed to meet him when it was “able to do so”. However, this was superseded by other events. However, the resident still reported matters therefore the case management function did not suffer. It apologised for the minor administrative error in not formally advising that the meeting would not take place.
On the resident advised this Service that he was dissatisfied with the Stage 2 response due to:
1. The contents of a conversation between the landlord and a third party.
2. The landlord’s provision of notes relating to the above conversation as requested.
3. The landlord’s decision not to suspend the neighbour’s RTB application.
4. The landlord’s response to his reports that the neighbour had CCTV covering his property.
5. The landlord’s investigation into a request to remove fencing state which was raised without his knowledge. The resident has provided this Service with a statement made by the neighbour in court that he had permission to replace the fencing.
6. The cancellation of a planned meeting with police to ASB.
7. The neighbour had damaged his fence and the landlord had not acted on the report that his neighbour had impersonated him.

Assessment and findings

Handling of ASB case

It is important to note that it is not the purpose of this report to investigate any of the alleged ASB itself, to apportion blame or to assess the credibility of the reports made by the complainant and his neighbours. Rather it has been to assess the landlord’s response to the reports and to the complainant’s subsequent complaint with reference to its own policies as well as our own assessment of what is fair, given all the circumstances of the case.
The landlord 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. Upon receiving reports of alleged ASB the landlord needs to gather evidence to establish whether the behaviour is unreasonable and constitutes ASB. Its policies and procedures must also ensure that it remains impartial and does not seek to apportion responsibility for behaviour until it has established the facts. The landlord’s policy allowed for the prioritisation of reports and provided a number of measures that could be taken either in isolation or in conjunction, depending on the severity and urgency of the reports
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. Ordinarily, it is the responsibility of residents themselves to resolve these and/or to find a way to live together with minimal impact of any mutual dislike.
The landlord spoke to the resident’s advocate about the ASB case on 5 October 2020. The resident subsequently raised concerns about the content of the conversation and the landlord’s provision of its notes of the conversation. Ultimately, it was at the landlord’s discretion to advise the advocate as it thought appropriate; it did not require the resident’s agreement on its assessment of his case. As such there is no identifiable service failure by the landlord. However, it missed an opportunity to elaborate on the conversation when responding to the resident, which may have, in part at least, allayed his concerns about how it handled the conversation.
The resident also raised concerns that the landlord did not provide full notes of the conversation, when responding to his SAR’s. Any concerns about how a landlord has kept personal information and responded to a SAR falls under the remit of the ICO and is therefore outside of this Service’s jurisdiction to consider. The resident raised a related concern that the landlord did not give permission for the advocate to release her notes of the conversation. The information he has provided to this Service indicates that he was in fact sent those notes in March 2021. Again, any concerns about the provision of the third-party notes are a matter for the ICO to adjudicate on.
The resident also complained that the landlord allowed his neighbour to purchase its property under the RTB. It should be noted that the neighbour had a statutory legal right to purchase his property and correspondingly the landlord had a legal obligation to process the transaction. Furthermore, the purchase of the property in itself was not a matter that directly impacted the resident. The suspension of the RTB can also entail significant losses to the tenant. Therefore the decision to apply to seek to suspend a tenant’s RTB is at a landlord’s discretion and requires good reason with corroborative evidence.
In this case, the landlord responded reasonably to this aspect of the resident’s complaint by making clear the factors that it took into account and why it did not consider applying to suspend the RTB was reasonable or proportionate. In particular it explained that it had to mindful of the cost of such action, the evidential threshold required and the prospects of gaining an order. It also clarified that there were no finding of facts of ASB when it was processing the RTB application that it could rely on, nor would the resident’s own private action require it suspend the RTB.
The resident in his complaint stated that he had now obtained evidence that the neighbour’s CCTV was pointed towards his property. Whilst the neighbour may have installed the CCTV at a time when he was a tenant, the landlord’s responsibility in responding to the complaint was to address the situation at that time. The neighbour was now an owner-occupier, and therefore not in landlord-tenant relationship with the landlord whereas the resident through his tenancy agreement had a legal estate in his property. Therefore, it was reasonable that the landlord directed the resident to the ICO which can advise and adjudicate on uses of CCTV.
The resident complained that the landlord cancelled the planned meeting with police in 2020. The initial postponements of the meeting, on 12 and 26 March 2020, were reasonable given that there were factors outside the control of the landlord. The police visited the resident solely on 6 July 2020 because according to the landlord’s subsequent email it was not carrying out visits at that time. The focus on the visit was to consider whether the resident was subject to criminal behaviour, which is a judgement for the police to make. However, the police operate to a criminal standard of proof and the threshold to take action is much higher than that in civil law or other non-legal processes, including landlord action and response to reports of ASB. Therefore, it was not sufficient for the landlord to rely on the police visit alone.
After the resident advised that the police did not consider all the evidence he wished to provide, spanning seven years, the resident advised that it was “happy to arrange a meeting to discuss all of the evidence you have” (at a time when it had resumed home visits). The landlord therefore raised the resident’s expectations that it would visit him, and, moreover, take into account the full history of the resident’s relationship with his neighbour before deciding what further action it could take. However, there is no evidence that the landlord then made clear to the resident that it had decided not to meet him with the reasons why or that it would not consider the historic reports. It therefore failed to manage the resident’s expectations about the handling of his ASB case which caused disappointment, especially as he collated a full history of his case and had waited four extra months for the meeting. This also contributed to his perception that the landlord was not taking sufficient steps to resolve the case. Its apology for a “minor administrative error” in its Stage 2 complaint response minimised the impact on the resident and therefore did not contribute reasonable redress.
Whilst the landlord failed to manage the resident’s expectations about meeting with him to review his case, this failing is mitigated by it acting on reports received at this time, in line with its ASB Policy. It had contacted the neighbour and his partner about reports made by the resident and explored the option of mediation which is commonly used for neighbours to understand the point of view of the other party and reach mutually agreed solutions. With regards to noise its suggestion that the resident make recordings and contact Environmental Health was appropriate as this would enable it to take an informed view whether the neighbour was making noise that constituted a statutory nuisance and/or ASB. The landlord liaised with the police and took steps to establish whether the fence remained in good repair. It was also appropriate and in line with the policy that landlord provided the resident with his options having closed the case, specifically that he had the right to request a review of the case by requesting a Community Trigger.

Response to reports that the fence had been damaged / removed

The resident made reports that the neighbour had damaged his fence. The landlord took appropriate steps to establish the condition of the fence by inspecting on several occasions and also relying on the observations of the police. When the resident raised concerns that the neighbour’s contractor was dismantling the fence the landlord responded promptly, agreeing that the works be put on hold, attending the property and establishing that the integrity of the fence would only be weakened on a temporary basis pending completion of the neighbour’s work. Ultimately the fence remained in place, therefore it is not evident that there was any significant adverse effect to the resident from the fence situation that required further action by the landlord.
The resident also made a specific allegation that the neighbour had impersonated him in 2019 by raising a repair for the fence to be removed. It should be noted that the landlord is not responsible for the alleged actions of the neighbour. When the resident raised this matter within his formal complaint in 2021, the landlord took reasonable steps to address his concerns by checking its repair records and confirming its understanding of events (although its reference to the year 2020 added confusion). It explained that it understood that that the neighbour had requested an inspection of the fence but that this request had erroneously been entered on the resident repair account indicating that the resident had requested the inspection/removal of the fence. It thereby took reasonable action to resolve this aspect of the resident’s complaint.
The resident in his complaint to this Service has repeated his allegation that his neighbour impersonated him and that the landlord should had acted further. However, he provided no conclusive evidence to the landlord that this was the case or that its understanding that there was simply an administration error was incorrect. Furthermore, given that two years had passed since the incident, the fence was not removed and the neighbour was no longer a tenant of the landlord, its response to his complaint was reasonable and sufficient.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of the resident’s ASB case.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to reports that the fence had been damaged / removed

Reasons

With regards to its conversation with the resident’s advocate, it was at the landlord’s discretion to advise as it thought appropriate. The landlord responded reasonably to the resident’s query that it should have suspended his neighbour’s RTB by making clear the factors that it took into account and why it did not consider applying to suspend the RTB was reasonable or proportionate. It was reasonable that the landlord directed the resident to the ICO when he raised concerns about his neighbour’s CCTV. However, in respect of the joint meeting with the police, the landlord failed to manage the resident’s expectations about the handling of his ASB case.
The landlord took appropriate steps to establish the condition of the fence by inspecting on several occasions and also relying on the observations of the police. When the resident raised concerns that the neighbour’s contractor was dismantling the fence the landlord responded promptly, agreeing that the works be put on hold, attending the property and establishing that the integrity of the fence would only be weakened on a temporary basis pending completion of the neighbour’s work. With regards to the resident’s allegation that his neighbour had impersonated him, the landlord responded reasonably by checking its repair records and confirming its understanding of events.

Orders and recommendations

Order

The landlord is ordered:
1. to pay the resident £75 for the distress and inconvenience caused by the failings in its handling of his ASB case, in particular, the handling of the proposed joint meeting with the police.

Recommendation

It is recommended that the landlord reviews its procedure for recording requests made by third parties for repairs/improvements/alterations to a tenant’s properties, with particular attention to making clear who has made the request and the outcome.