Birmingham City Council (202007856)

REPORT

COMPLAINT 202007856

Birmingham City Council

29 November 2021

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 antisocial behaviour (ASB).

Background and summary of events

The resident is a leaseholder and lives in a ground-floor flat, which is contained within a block of flats.
The resident has reported her neighbour being antisocial (including smoking and drinking alcohol on shared paths, smoking cannabis, and verbally abusing her) for some time, and since December 2019. The resident has previously requested that the landlord install CCTV, or allow her to do so; however, the landlord rejected this on the basis that it would be with a view of it being directed at one person (the neighbour).
Prior to the formal complaint, the resident reported the neighbour for smoking in a way that caused her nuisance. In June 2020 the landlord explained to the resident that the area that she reported the neighbour smoking in was not a communal or enclosed area; therefore, it “did not fall under the restrictions in respect of smoking”. The landlord confirmed that while the neighbour was not breaching his tenancy, it had asked him to be mindful. However, he suggested that the resident close a window or avoid him to reduce the nuisance she felt was caused by the smoke. The landlord offered to refer the resident and her neighbour to mediation and explained that there was no formal action it could take, therefore it would close the ASB case.
On 3 July 2020 the resident reported to the landlord that on 2 July 2020 the smell of cannabis entered her home and when she looked out of her window, she saw her neighbour walking along the communal path.
The landlord discussed the resident’s report with the neighbour on 9 July 2020 and he said he did not smoke cannabis. He said the resident was constantly filming him and he admitted to swearing at her on one occasion due to it irritating him.
The landlord subsequently updated the resident that the neighbour denied smoking cannabis and there was no independent evidence to corroborate the report. The resident replied and maintained that her neighbour was smoking cannabis in the communal area under her window, causing her distress. She highlighted how she had previously requested to fit CCTV but was refused.
On 16 August 2020 the resident reported to the landlord that her neighbour had approached another neighbour and alleged that the resident and her partner were involved in criminal activity. The resident explained that this distressed her, and she was not willing to approach her neighbour. The landlord advised, on 22 August 2020, that a housing officer would be in touch. It said that, if the resident had any evidence from neighbours which could corroborate her report, she should report it to the police and the landlord could liaise with the police. The landlord also advised that the neighbour had made his own allegations, which it would also investigate.
The resident informed the landlord on 24 August 2020 that she had reported the incident to the police and was awaiting contact.
On 25 August 2020 the resident reported that she continued to notice the smell of cannabis in the hall and stairway. She reported that she had witnessed her neighbour outside the building smoking and drinking alcohol with a visitor, who was also drinking alcohol and singing. She said that this was causing a nuisance and asked for permission to install CCTV around the building.
On 7 September 2020 the resident reported an incident in which her neighbour aggressively shouted “what are you looking at” to her when she looked through her window. She also reported that her neighbour’s associates had knocked on her door to leave a message for the neighbour, which she was unhappy with. The resident expressed her concern about her neighbour drinking alcohol around the building.
On 24 September 2020 the landlord spoke with the resident, who advised that the police had logged and closed her case regarding defamation of her character by the neighbour. The landlord noted that the resident refused mediation with the neighbour and said she wanted her neighbour to leave her alone and stop smoking and drinking alcohol outside of the property. She said that she did not want her family and friends to visit because of the neighbour smoking on the communal path, and he had recently taken to drinking and smoking on the grass verge which she would discuss with the police. The landlord noted that it said it had previously sent the neighbour a letter regarding his smoking conduct, which the resident said she was unaware of.
The resident reported to the landlord, on 28 September 2020, that she witnessed her neighbour smoking cannabis. She also mentioned that the neighbour had cut the grass around the building and left the cuttings in plastic bags to rot for several days.
On 10 October 2020 the resident reported to the landlord that on 7 October 2020 her neighbour woke her up in the early hours of the morning by sweeping in the communal area and banging a broom against the wall. She said she had tried to record it, but the neighbour ran away. The resident said that later that day, the neighbour was playing loud music and sang it to the resident when she returned home, which disturbed her.
The resident called the landlord on 14 October 2020 regarding her ASB case and asked for a call back. The landlord’s records indicate that it attempted to call her back but could not reach her.
On 20 October 2020 the landlord sent the resident an ASB case closure letter. In it, it explained that it did not consider the actions reported (including smoking and consuming alcohol on the footpath and outside the building, sweeping outside the building in early hours, leaving grass cuttings in a plastic bag for some time, singing, and visitors knocking on the resident’s door) to be ASB. The landlord confirmed it had, however, approached the neighbour and asked him to be mindful of his actions.
The landlord confirmed that the neighbour admitted to smoking and drinking outside his front door in the open air but refuted any allegations that he smoked cannabis or any other type of drugs. It said that the neighbour said he felt harassed by the resident filming him every time he stepped out of his property and that the resident dragging around furniture in the property created a nuisance. The landlord concluded that there was no further action it could take at the time, and that the only realistic option to resolve the dispute was mediation, which the resident had declined.
On 21 October 2020 the resident reported that her neighbour had mocked her, swore, made rude gestures, and acted in a threatening manner. She asked the landlord to visit the neighbour regarding the ASB, noting that it had not done so even prior to the coronavirus pandemic. The resident also asked if the landlord had liaised with the police.
On 26 October 2020 the resident contacted the landlord, following receipt of its letter dated 20 October 2020. She asked if the landlord had visited the neighbour and reiterated that the situation was unresolved. The resident noted that the landlord’s letter did not mention the neighbour approaching other neighbours and accusing her of criminal activity and asked how the landlord handled this.
On 17 November 2020 the landlord sent the resident a letter, closing the ASB case. It noted on the system that this was because the resident refused mediation and it could not take any further action in what it considered a neighbour dispute between two neighbours who did not get on.
In a call with this Service, dated 11 December 2020, the resident expressed her dissatisfaction with the landlord’s handling of her ASB case and confirmed she would escalate the matter through the landlord’s complaints procedure.
The resident formally complained to the landlord about its handling of her reports. The landlord later acknowledged that this was on 12 January 2021, but a copy of this correspondence has not been provided for this investigation.
The resident reported to the landlord on 25 January 2021 an incident in which she believed her neighbour was following her and said that her partner then later recorded the neighbour challenging him. The resident said she reported the incident to the police.
In the landlord’s complaint response, dated 1 February 2021, it concluded that it investigated the resident’s reports of ASB in line with its policies and procedures and ensured that it was fair, reasonable, and proportionate in its response. It confirmed that the neighbour denied smoking cannabis and it could not corroborate the resident’s reports of him smoking cannabis, despite visits by the landlord’s contractors and police. The landlord also advised that it did not consider the resident’s reports of the neighbour drinking outside the property with friends persistent, due to there being few reports during a ten-month period, and there was no evidence to suggest his visitors acted anti-socially or caused nuisance.
The landlord noted that the police had explained the resident’s case about the neighbour allegedly telling neighbours she was involved in criminal activity. It also confirmed that the neighbour made counter allegations about the resident filming him every time he left his property, which the resident admitted to doing in an attempt to gain evidence of her reports. The landlord confirmed that on 18 December 2020 the resident made a report to police, who confirmed the neighbour appeared hostile towards the resident and her partner due to them filming him. It confirmed that the police offered mediation which the resident was yet to accept, and the landlord encouraged the resident to consider it. The landlord advised that the information from the police did not necessitate further action at that time, other than the verbal and written requests it previously made that the neighbour be more considerate and ensure he did not risk breaching his tenancy. It confirmed it was awaiting an update from the police in relation to the recent report made by the resident.
On 5 February 2021 the landlord raised an ASB case in relation to the neighbour’s reports that the resident was harassing him by filming him frequently.
The resident asked to escalate her complaint on 7 February 2021. She said that she believed that the landlord’s failure to visit the neighbour in person allowed his ASB to escalate. She reiterated that her neighbour alleged to other neighbours that she was involved in criminal activity; and that he would smoke cannabis on the doorstep of the property, under her window, but was unlikely to do this in the presence of contractors or police. The resident suggested that the landlord introduce a boundary around the building. The resident said that she reported in December 2019 that her neighbour was verbally abusive to the police, and she overheard him insulting her to the police who attended. The resident confirmed that the police would be contacting the landlord about the incident where the neighbour followed her.
The landlord corresponded with the police on 24 February 2021. The police confirmed they had attended on 18 December 2020 and that the resident had no evidence of the neighbour following her’ and did not phone the police at the time she thought she was being followed.
In the landlord’s final complaint response, dated 9 March 2021, it confirmed it contacted the neighbour to address the allegations by telephone. It said it was an acceptable method of investigation under normal circumstances and even more so during the coronavirus pandemic, under its essential visit only covid risk assessment policy. The landlord explained that the nature of the complaint did not require it to complete face-to-face interviews and it was most important that it put the complaint to the neighbour and heard their version of events, which had been achieved.
The landlord reiterated that there was no evidence of the neighbour smoking cannabis. It confirmed that the neighbour admitted to drinking alcohol with friends on occasion, and it told him this must stop because it could be deemed a nuisance. The landlord said it would be unable to consider the option of a boundary around the building, as suggested by the resident. The landlord also said there was no evidence of the neighbour being a drug dealer or selling stolen items (this appears to have been a misunderstanding of the resident’s report that the neighbour had said this about her and her partner).
In relation to the conversation that the resident overheard between the neighbour and police, the landlord confirmed that the neighbour was angry with the resident’s allegations and that she was reporting him to police. The landlord noted that the neighbour made counter allegations that the resident was harassing him by filming him every time he stepped outside his property.
The landlord concluded that it investigated the resident’s reports in line with its policies and procedures. It confirmed that the neighbour agreed to restorative justice with the police, who would commission this with both parties if agreed. It also said that mediation was available, and these options were the most pragmatic and proportionate way of attempting to resolve the disputes between the resident and her neighbour.

Assessment and findings

ASB procedure

In line with the landlord’s ASB Procedure, it categorizes ASB reports (and accordingly responds to them) as follows:
1. Category A includes very serious ASB such as: hate incidents and harassment (verbal abuse, threats of violence, assault, or damage to property based on race, sexual orientation, gender, age, disability, religion etc.); physical violence; harassment; and intimidation. The landlord will contact the reporter within 24 hours.
2. Category B includes serious ASB such as: vandalism, noise nuisance, verbal abuse or insulting words, drug dealing or abuse, prostitution, threatening or abusive behaviour, and complaints that have potential for rapid escalation to category A. The landlord will contact the reporter within five working days.
3. Category C includes minor ASB such as: pets or animal nuisance, misuse of a public/communal space, loitering, fly tipping, nuisance from vehicles, domestic noise, and neighbour disputes. The landlord will contact the reporter within ten working days.
The landlord’s ASB procedure says that initial contacts must be by phone or visit and done at the earliest opportunity. Initial contacts can be by letter or e-mail if there is no success with either a phone call or visit. It also says that, if the complaint is not actually ASB, advice should be given (to the reporter) and if appropriate signposted to another department or agency
Prior to beginning an investigation, in line with the ASB procedure, the landlord’s staff should carry out system checks to establish what is already known about all parties. The reporter will be interviewed in detail and an action plan agreed with them and confirmed in writing with them.
The ASB procedure says that, when investigating:
1. With agreement from the reporter, the alleged perpetrator should be interviewed and also any witnesses interviewed after this.
2. Contact should be made with other involved agencies to establish their involvement.
3. When considering evidence, it should be to a civil standard “on the balance of probabilities”.
4. To support the collection of evidence in legal cases, diary incident books can be issued but instruction will be given on how to complete the books and how often they will be reviewed.
5. If the alleged perpetrator makes counter allegations, these should be recorded separately and investigated as a separate ASB complaint but cross referenced to show the two cases are connected.
If evidence is substantiated that ASB has taken place, in line with the ASB procedure, the landlord must decide on the appropriate action to take to help change the perpetrators behaviour. It can take the form of supportive or preventative referrals or signposting for mediation etc, a warning to the perpetrator and advice about the consequences of further ASB, or acceptable behaviour contracts and good neighbour agreements. Legal actions may be pursued for cases of serious ASB and are escalations on from other actions.
In line with the ASB policy, each complaint will be monitored regularly by the investigating officer, and this will be done by keeping in regular contact with the reporter. If a complaint investigation concludes, contact will be made with the reporter and closure should be agreed. All closures should be confirmed in writing including a summary of the actions taken to resolve the complaint. The ASB procedure confirms that, on some occasions, an investigation concludes and it is unable to resolve the matter to the satisfaction of the reporter. In those cases, a supervisor will review the complaint and can close it without the reporter’s agreement if they are satisfied the investigation was thorough and there are no other options available.

The handling of the ASB case

It is evident that this situation has been distressing for the resident. It is important to clarify that the role of the Ombudsman is not to establish whether the ASB reported was occurring or not. Our role is to establish whether the landlord’s response to the resident’s reports of ASB was in line with its legal and policy obligations and whether its response was fair in all the circumstances of the case. This means while ASB may be ongoing, the landlord may also have already exhausted all the actions it is able to take.
For a landlord to take formal action in respect of ASB, a landlord requires independent corroborative evidence of the alleged behaviour to support formal action. In this case the landlord took reasonable steps to investigate and seek corroborative evidence in line with its ASB policy. For example, it considered and discussed the resident’s reports, discussed the reports with the neighbour involved, asked him to be considerate, and liaised with the police.
Landlords cannot reasonably be expected to take formal action against tenants for actions it does not consider ASB. The landlord’s policy allows it to categorise the nature of ASB in a case. It was clear in its explanation as to why it did not consider the majority of reports in this case to constitute ASB, and instead considered it a neighbour dispute. This includes both the actual actions of the neighbour, and that the neighbour’s actions were sometimes in response to the resident’s regular filming of the neighbour (as confirmed by the resident). It appears that this is a case where the dispute has escalated because of a clash of lifestyles. It appears the initial clash revolved around issues that would not reasonably be considered ASB (everyday noise, smoking, drinking) but then escalated. This will have limited the options available to the landlord to ensure its response was proportionate.
In cases where formal action is not appropriate or supported by independent evidence the landlord may be able to try to resolve the matter locally by speaking to those involved and asking them to be mindful, and referring them to mediation. However the resident refused mediation at the time and there was no clear evidence of significant ASB, despite the landlord’s investigations into the matter. It was therefore reasonable that the landlord did not take further action against the neighbour.
The resident believes that the landlord should install a boundary fence or make it clear to the neighbour that he and his visitors should not smoke outside and underneath her windows or congregate while doing this, blocking the communal pathway. The landlord has attempted to resolve the matter informally such as through mediation and managing the resident’s expectations in relation to the actions it can take, and which areas were classed as communal, in line with its ASB procedure and good practice. There is no evidence to suggest that installing a boundary fence was a viable option for the landlord, and it has explained this to the resident. Installing a fence would be considered an improvement, as opposed to a responsive repair, and so is outside the landlord’s repairing obligations.
When bringing her complaint to this Service, the resident said that she did not make allegations about the neighbour being a drug dealer or selling stolen items, but that the neighbour made these allegations to another resident about the resident. The landlord appears to have misunderstood this in its final response. However this confusion had no overall bearing on the outcome of the case because the landlord had previously referred the resident to the police, who had in turn closed their investigation on the matter.
Ultimately, the landlord’s handling of the matter was in line with its ASB policy and good practice, and there is no evidence to suggest that the landlord should take further action at the time.

Determination (decision)

In accordance with paragraph 54 of the Scheme, there was no maladministration by the landlord in its response to the complaint about its handling of the resident’s reports of antisocial behaviour.

Reasons

The landlord investigated the resident’s reports in line with its ASB procedure. Ultimately, there was no corroborating third party evidence of ASB that would support further action by the landlord.