Dartford Borough Council (202303482)

REPORT

COMPLAINT 202303482

Dartford Borough Council

28 September 2023

Our approach

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

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

The complaint

The complaint is about the landlord’s handling of:
1. Reports of anti-social behaviour involving the resident’s neighbour including noise nuisance, smell from the neighbour’s property and the storing of bulky items and household waste in the garden.
2. The resident’s neighbour accusing the resident of racism and threatening to take legal action against her.
3. The resident’s request to be rehoused.
4. The associated complaint.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
Paragraph 42(a) of the Housing Ombudsman Scheme states the Ombudsman may not consider a complaint which is made prior to having exhausted a landlord’s complaints procedure, unless there is evidence of a complaint-handling failure, and the Ombudsman is satisfied that the member [landlord] has not taken action within a reasonable timescale.
The resident stated as part of her complaint sent to the Ombudsman that she was unhappy with the landlord’s handling of her neighbour accusing her of racism and threating to take legal action against her. The evidence provided to the Ombudsman suggests that the resident did not include this point when she submitted her complaint to the landlord. Therefore, the landlord has not had the opportunity to address this element of the complaint in its stage 1 or 2 complaint response. This part of the complaint has not exhausted the landlord’s complaints procedure and is outside of the Ombudsman’s jurisdiction. The resident should complain to the landlord if she wishes to pursue this matter further. The resident may be able to refer the complaint about the landlord’s handling of her neighbour accusing her of racism and threatening to take legal action against her to the Ombudsman if she remains dissatisfied once the complaint has exhausted the landlord’s internal complaints process.
Paragraph 42(k) of the Housing Ombudsman Scheme states the Ombudsman may not consider a complaint which falls properly within the jurisdiction of another ombudsman, regulator, or complaint-handling body.
The resident has stated that part of her complaint is about the landlord’s handling of her request to be rehoused. Rehousing requests which are undertaken on behalf of the local authority in accordance with its allocation policy are outside the Housing Ombudsman’s jurisdiction. Complaints about rehousing under a local authority fall within the jurisdiction of the Local Government and Social Care Ombudsman (LGSCO). The resident may be able to refer the complaint about this issue to the LGSCO if she wishes to pursue it further.

Background

The resident is a secure tenant of the landlord.
The resident first reported noise nuisance coming from her neighbour’s property in September 2022. In addition, the resident reported items and household waste in the garden and a strong smell from her neighbour’s property in February 2023.
On 6 March 2023, the resident submitted a complaint to the landlord. The resident explained that since her neighbour moved into the building there had been constant noise, including arguing and slamming of doors. She also stated that there was a strong smell coming from the neighbour’s property.
The landlord provided its stage one complaint response to the resident on 16 March 2023. The landlord explained that it had taken the correct and appropriate action in liaising with other agencies and acted based on the information provided. It also stated that it had kept the resident updated on ongoing enforcement actions regarding the ASB allegations.
On 16 March 2023, the resident requested her complaint to be escalated to the next stage of the landlord’s complaints process. She stated that she disagreed that she was kept informed regarding all the protocols. The resident also stated that she had been waiting for 4 months to move to a different property and every room in her flat had a nasty smell.
On 26 April 2023, the landlord responded to the resident’s escalation request and stated that it did not believe the resident’s complaint should be escalated to stage 2 of the landlord’s complaints process. However, it did provide a response to the additional points that the resident raised.
The resident remained dissatisfied with the landlord’s response and submitted her complaint to the Ombudsman. She stated her desired outcome was for the landlord to respond to her complaint escalation request and to receive compensation.
The resident and landlord have confirmed that the resident has moved to a different property and she is no longer experiencing the ASB.

Assessment and findings

Reports of anti-social behaviour involving the resident’s neighbour including noise nuisance, smell from the neighbour’s property and the storing of bulky items and household waste in the garden.

It is outside the role of the Ombudsman to establish whether someone has committed anti-social behaviour, but rather, this service will assess the landlord’s handling of the residents’ anti-social behaviour reports. This service will consider whether the landlord’s response was fair and reasonable in view of all the circumstances and whether it acted in line with its own internal policies, the law and industry best practice.
The landlord’s anti-social behaviour (ASB) policy defines anti-social behaviour as:
1. conduct that has caused, or is likely to cause, harassment, alarm, or distress to any person.
2. conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises or
3. conduct capable of causing housing-related nuisance or annoyance to a person.
The policy references that the landlord may use informal interventions to help stop and prevent cases of anti-social behaviour escalation. Some of the informal measures include:
1. Mediation,
2. Community resolution,
3. Waning letters and interviews.
The landlord’s ASB policy also states that the landlord will consider taking enforcement action when ASB continues following an attempt to resolve anti-social behaviour informally. It states that examples of enforcement actions that may be considered include:
1. Community protection warnings,
2. Community protection notices,
3. Civil Injunctions,
4. Fixed penalty notices.
The policy also states that the police are the principal reporting agency for incidents of anti-social behaviour that constitute a criminal offence.
The resident reported noise nuisance coming from her neighbour’s property in September 2022. The noise nuisance included noise from her neighbour’s toilet flush, loud music, arguing and the slamming of the doors. In addition, the resident reported the items and household waste in the garden and a strong smell from her neighbour’s property in February 2023.
The landlord acknowledged the resident’s report of noise nuisance. In response, it requested for the resident on 6 September 2022 to download the noise app on to her mobile phone and to take recordings of any noise nuisance. It was reasonable for the landlord to ask the resident to download the noise app to record the noise nuisance, so that it could investigate the issues she had reported. The noise app is an important tool to understand the type of noise nuisance and also the volume of the noise. It was a necessary starting point for the landlord to conduct its investigations into the resident’s reports of noise nuisance.
The landlord also offered mediation to the resident and her neighbour on 6 September 2022. However, this was declined by both parties. Mediation is optional; therefore, it was entirely the resident’s decision whether she accepted the mediation offer. This service recognises that it was reasonable for the landlord to offer mediation to the resident as mediation can be an effective tool to resolve disputes between neighbours in some cases.
One element of the noise nuisance was related to the resident’s neighbour’s toilet flush creating a loud sound. The landlord agreed to inspect the neighbour’s toilet and carry out any necessary repairs to reduce the loud noise when it was flushed. The landlord responded promptly to the resident’s concern and initially tried to arrange an appointment with the resident’s neighbour on 29 September 2022. However, the resident’s neighbour was not available on that date, therefore the appointment was rescheduled for 10 October 2022. The landlord’s plumber attended the resident’s neighbour’s property, inspected the toilet flush, and changed the syphon in the toilet, which resulted in the toilet flush being much quieter. The Ombudsman believes that the landlord responded quickly to investigate the loud toilet flush. It also took reasonable steps to resolve the loud toilet flush by changing a part of the toilet.
In regard to the other noise nuisances. It is acknowledged that one of the resident’s neighbours also reported loud music coming from the same neighbours’ property. It is also recognised the resident also recorded loud music and arguing on the noise app on some occasions. However, it is recognised that there were several instances of noise nuisance that were not recorded by the resident on the noise app. The landlord also arranged for its environmental health department (environmental health) to install a noise machine at the resident’s property in November 2022 to also help record the noise and gather evidence to support any further action regarding the ASB. The landlord can only be expected to take formal action against residents for ASB such as tenancy warnings or acceptable behaviour contractors if there is extensive evidence to support the allegations. Noise recordings can provide such evidence. However, the resident requested the installation of the noise machine to be cancelled as at the time, her neighbour had been quiet and was not causing any noise nuisance. The landlord took reasonable steps to investigate and gather evidence regarding the reported noise nuisance. The Ombudsman recognises the noise app recordings were not sent to the landlord frequently and the noise machine installation was cancelled by the resident, therefore it was proportionate for the landlord not to carry out any enforcement action against the resident’s neighbour in relation to the loud music, due to lack of evidence.
In February 2023, the resident reported to the landlord that a strong smell was coming from her neighbour’s property. She stated that the smell was a mixture of incense and drugs. The landlord informed the resident that because she had referenced that the smell was related to illegal substances that she should report the issue to the police. It was reasonable for the landlord to provide this advice, as the police are responsible for investigating criminal behaviour such as drug use. The landlord would be expected to assist the police with any investigation and the landlord may be able to take action following the end of the police investigation, if there was sufficient evidence to support enforcement action. The advice was also in line with the landlord’s ASB policy, which states that the police are the principal reporting agency for incidents of anti-social behaviour that constitute a criminal offence.
In addition to the noise nuisance and smell, the resident also reported on 20 February 2023 that her neighbour was storing bulky items and household waste in the communal garden/pathway area. Following the report, the landlord contacted the resident on 23 February 2023 to confirm if the bulky items and household waste were still at the front of the property. The resident confirmed with the landlord that items were still present.
After the landlord confirmed that the items were still at the front of the property, it issued a community protection warning to the resident’s neighbour. A community protection warning informs the individual concerned about the problem behaviour and requests them to stop that particular behaviour. In this instance, it requested the resident’s neighbour stop storing bulky items in the shared garden/pathway.
Following the issue of the community protection warning, the resident’s neighbour did not contact the landlord or remove the items. Therefore, due to this, the landlord issued the resident’s neighbour with a community protection notice. This was an appropriate enforcement measure by the landlord and was in line with its ASB policy. After the community protection notice was issued, the resident’s neighbour contacted the landlord and informed it that the items were located in the garden because he was decorating his property. The landlord asked the resident’s neighbour for a reasonable timescale of when the decorating works would be completed. The landlord also informed the resident on 23 March 2023 that it would consider taking further enforcement action if the items were still there after 5 working days.
The resident’s neighbour continued to store the bulky items and household waste in the garden in April, May, and June 2023. In response, the landlord carried out further enforcement action against the resident’s neighbour in line with its ASB policy.
The Ombudsman recognises that it must have been difficult for the resident to deal with the reported noise nuisance, smell and bulky items and household waste in the garden. However, the landlord took reasonable steps to investigate and deal with the reported ASB incidents in line with its own ASB policy. The landlord also carried out the necessary enforcement action in response to the resident’s neighbour leaving bulky items and household waste in the garden. Therefore, there has been no maladministration by the landlord in its handling of reports of anti-social behaviour involving the resident’s neighbour including noise nuisance, smell from the property and the storing of bulky items and household waste in the garden.

The landlord’s handling of the associated complaint.

The landlord’s complaint policy states that under its stage 2 process, it will aim to provide a full response to the complainant within 20 working days of receiving the stage 2 escalation request. The Ombudsman’s Complaint Handling Code (the code) sets out the Ombudsman’s expectations for landlords’ complaint handling practices. The code also states that a landlord should not unreasonably refuse to escalate a resident’s complaint through all the stages of its complaint procedures. It explains that a landlord must have a clear or valid reason for refusing to escalate the complaint.
The resident requested her complaint to be escalated to stage 2 of the landlord’s complaint process. On 17 March 2023, she emailed the landlord with the reasons why she would like her complaint escalated. She stated that she disagreed that she was kept informed regarding all of the protocols. The resident also explained that she had been waiting for 4 months to move property and all the rooms at her property have a strong nasty smell.
On 26 April 2023, the landlord responded to the resident’s escalation request. It explained that it would not be escalating the resident’s complaint to stage two of its internal complaints process. It stated that the evidence submitted by the resident was not sufficient to escalate the complaint. The Ombudsman believes this was unreasonable. The resident provided valid reasons for her complaint to be escalated. Therefore, this service would have expected the landlord to consider the points raised by the resident and issue a stage 2 complaint response in this instance, in line with the code.
The Ombudsman recognises that the landlord provided a response in its email to the points the resident raised. However, the landlord declined to escalate the resident’s complaint to stage two and provide a full stage two complaint response. Therefore, there has been a service failure by the landlord in its complaint handling. It would be appropriate for the landlord to pay the resident £100 compensation for the distress and inconvenience caused by this error. The compensation is sufficient to recognise the inconvenience. The compensation offered was also compliant with the Ombudsman’s remedies guidance, (published on our website) which sets out the Ombudsman’s approach to compensation. The remedies guidance suggests awards of £50 to £100, where there was a minor failure by the landlord in the service it provided, and it did not appropriately acknowledge these and/or fully put them right.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of reports of anti-social behaviour involving the resident’s neighbour including noise nuisance, smell from the property and the storing of bulky items and household waste in the garden.
In accordance with paragraph 42(a) of the Housing Ombudsman Scheme, the complaint relating to the landlord’s handling of her neighbour accusing her of racism and threatening to take legal action against her is outside of the Ombudsman’s jurisdiction.
In accordance with paragraph 42(k) of the Housing Ombudsman Scheme, the complaint relating to the resident’s request to be rehoused is outside of the Ombudsman’s jurisdiction.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s complaint handling.

Orders

The landlord to pay the resident £100 compensation for its complaint handling errors.
The above payment should be made within four weeks of the date of this report.

Recommendations

It is recommended that the landlord carries out staff training to ensure that stage 2 escalation requests are considered correctly, in line with its complaints process and the complaint handling code.