Birmingham City Council (202204007)

REPORT

COMPLAINT 202204007

Birmingham City Council

18 January 2024

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. The resident’s reports of antisocial behaviour (ASB) against neighbour A.
2. An ASB report made by neighbour B against the resident.
3. The resident’s reports of his driveway being blocked.

Background

Scope

The Service understands that the relationship between the resident and his neighbours (at the time of complaint) broke down in 2019. After this point, the resident and his neighbours have made allegations of ASB against each other. The Housing Ombudsman Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, were not brought to the attention of the landlord as a formal complaint within a reasonable period. There is no evidence that a complaint was escalated through the landlord’s complaints procedure prior to the complaint, which was raised in March 2022 While important to note, this investigation will focus only on events from December 2021, up until the landlord’s stage two response in June 2022.

Background and summary

The resident, at the time of the complaint, lived in a two-bedroom property. The landlord has no known vulnerabilities recorded for the resident. However, the resident has disclosed medical conditions in the evidence provided to the landlord.
In December 2021 the resident reported noise nuisance from neighbour A, specifically a “fan or mechanical noise” that was ongoing through the day and night. He also reported hearing a “horn” type noise each time he flushed his toilet. The landlord confirmed it would visit the resident.
Following the landlord’s visit, the landlord raised a repair to investigate a possible airlock in the system that may have caused the “horn” like noise when the toilet was flushed.
On 5 January 2022, Environmental Health (EH) wrote to neighbour A and confirmed that following reports of noise nuisance, it would be installing noise monitoring equipment in the property.
The resident made a further report on 24 January 2022, specifically doors were being slammed deliberately, waking him 4-5 times a night and the machine noise was continuing. He said that he had noticed that the noise stopped whenever someone came up the path.
In response to the resident’s reports, the landlord requested that a witness officer attended to corroborate the noise. The resident cancelled the officer’s attendance, stating that the noise would stop once an officer arrived. The landlord reiterated the importance of witnessing the noise and confirmed it would follow-up with EH on installing noise monitoring equipment in the neighbour’s property.
On 9 February 2022, the landlord wrote to the resident to advise him that neighbour B had reported a noise nuisance, specifically “loud amplified sounds.” A second complaint was made on 11 February 2022 when the resident was reported for behaving in an intimidating manner, starting arguments, and photographing visiting cars.
The resident emailed the landlord on 12 February 2022 in response to the reports. He stated that he had noise monitoring equipment in his property the previous week, so any noise that he made would have been picked up by the machine. He confirmed selling his hi-fi and TV so he could not be accused of making “vibrating sounds.”
The landlord spoke to the resident on 2 March 2022 in relation to the reports of intimidating behaviour. The resident confirmed that he had spoken to a gentleman in a car, who was blocking his driveway, but there had been no argument. He said that he had taken a photograph of the car, before speaking with the driver. Both the resident and neighbour B had agreed for referrals to the neighbourhood relations service and mediation.
On 14 March 2022, EH wrote to the resident to confirm that following the installation of noise monitoring equipment there was no evidence to prove a statutory noise nuisance. The resident was reminded that he could use the officer witness service until 27 March 2022, as a way of evidencing the noise.
The resident emailed the landlord on 15 March 2022 to confirm the noise he was hearing from neighbour A was heater fans, which were working at “capacity.” He said that neighbour A spent a lot of time in his “curtained shed which has electricity and lights” and they were “hard hearted substance smokers.” In a response on 17 March 2022, the landlord asked if the resident had contacted the police in relation to the reports. He was reminded to use the out of hours team to witness the noise he was reporting.
The resident sent a complaint to the landlord on 23 March 2022. He was unhappy that an ASB case had been opened following neighbour B’s report on 11 February 2022. The resident believed that the complaint had been withdrawn, and he had submitted CCTV evidence which he said disproved the report. The resident confirmed that since the incident, vehicles visiting neighbour A had continued to block his driveway and when they had been asked to move, he was met with anger and hostility. Because of his medical conditions, his car was his “only freedom.”
The landlord sent a complaint response on 1 April 2022 and said that:
1. It was aware that the resident was trying to articulate a defence regarding a complaint that was logged by neighbour B on 11 February 2022, but it had a duty to investigate the allegations.
2. After reviewing all the information and following a meeting with both parties, it was agreed to explore mediation to come to a resolution.
3. It requested that both parties did not engage in any further disagreements and to be mindful of their tenancy obligations.
On 24 May 2022, the resident asked the landlord for a letter of permission to park over his dropped kerb, to prevent anyone from blocking him in his driveway. A letter was sent to the resident the following day which said, “there is no impediment for you to continue parking freely across your driveway so long as he did not block other road users and followed any locally based parking regulations.”
The resident contacted the Service on 27 May 2022 after remaining dissatisfied with the landlord’s response. Following intervention from the Service, the landlord issued a stage 2 response on 28 June 2022 which said:
1. The resident entered mediation in April 2022 which was unsuccessful in resolving the parking dispute. The resident did not wish to have further interaction with neighbour B. The mediator provided the resident with coping strategies for when his driveway was blocked. The resident was written to on 25 May 2022 regarding permission to park on the dropped kerb.
2. It confirmed there was no legal threshold strong enough to justify taking legal action against neighbour A based on probability, accountability, and proportionality.
The landlord emailed the resident on 8 July 2022 to confirm that the report made by his neighbour B was closed on 14 April 2022 as there was no evidence to substantiate the claims.
The Service understands that the resident moved from the address in November 2023.

Assessment and findings

Reports of ASB against neighbour A

The landlord’s ASB procedure categorises ASB into 3 categories depending on the seriousness of the report. Neighbour disputes, misuse of public/communal space, nuisance from vehicles and domestic noise are classed as ‘Category C – minor ASB’.
All ASB complaints will be recorded on an electronic case management system which will be updated after each action.
It is relevant for the Ombudsman to acknowledge at the outset that ASB cases involving allegations and counter-allegations over an extended period, sometimes with little or no corroborating evidence, can be among the most difficult for a landlord to resolve. That difficulty is not the fault of any party, but it is important that the Ombudsman’s assessment of the landlord’s actions recognises this fact.
In line with its ASB policy, the landlord had an obligation to investigate reports of ASB and respond appropriately. The resident reported noise nuisance from neighbour A, which would fall under the heading of ASB, as set out in its ASB procedure.
The landlord was expected to investigate and take reasonable steps to resolve any ASB which was identified following its investigation. In response to the reports made by the resident, the evidence available shows that the landlord took various actions which included:
1. Opening ASB cases.
2. Speaking with the resident and his neighbour.
3. Requesting the completion of diary sheets.
4. Facilitating noise monitoring equipment.
5. Offering independent witness services.
6. Home visits.
7. Referrals to neighbourhood services and mediation.
The actions the landlord took were appropriate and in line with its ASB policy, taking reasonable and proportionate steps to assess the level of noise. EH concluded that the noise monitoring equipment did not evidence any statutory noise nuisance. Despite this, the landlord continued to support the resident and offered it’s witness services, to corroborate his noise reports, which the resident declined.
For a landlord to take formal action regarding ASB, such as written warnings, injunctions etc, the landlord would usually require extensive evidence to confirm that the alleged behaviour was serious and took place over a prolonged period. Landlords cannot reasonably be expected to take formal action against residents for noise that is considered everyday household noise or noise that is not considered a statutory nuisance.
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. This includes speaking to those involved and asking them to be mindful of their behaviour and/or referring them to mediation. Mediation allows each party to express their specific concerns and be given the opportunity to respond to the concerns of the other. It is evident that mediation was unsuccessful, however, it was a reasonable response for the landlord to offer it.
The landlord’s stage two response concluded that the action it could take following the evidence collected was limited. While it was regrettable that the landlord was unable to resolve the ASB while the resident was at the address, the landlord acted within its procedure, and took proactive and resolution focused steps, balancing its actions proportionately and fairly in the circumstances. Therefore, the Service finds no service failure by the landlord in its handling of the resident’s reports of ASB.
The Service is pleased to note that the resident was successful in reaching his desired outcome of transferring to a new property.

The landlord’s handling of ASB reports made against the resident by neighbour B

The Service acknowledges and understands that the resident was upset and distressed by what he said was “bogus” complaints. However, it was appropriate for the landlord to act in accordance with its procedure by recording and investigating the report. The evidence confirms that the landlord investigated matters fairly and proportionately and acted upon the evidence it had.
Following the resident’s evidence, the landlord confirmed that the allegations were unsubstantiated, and the case was closed in April 2022. It is unclear if the landlord advised the resident at the time that the case had been closed.
One of the outcomes sought by the resident was for the landlord to remove the report made against him from his file. If the resident objects to such information on his file he would need to approach the Information Commissioner’s Office (ICO), as that issue is not one the Ombudsman can adjudicate on. Nonetheless, it is important to note that the landlord’s email on 8 July 2022, in which it agrees there is no evidence to support the allegations, will also be in his file as a balance to the allegations.

The resident’s reports of his driveway being blocked

Section 12 of the tenancy agreement confirms that “you, your friends and relatives and any other person living in or visiting the property must not park any vehicle anywhere on the property unless the property has a garage, parking space, or drive with a dropped kerb.”
The landlord appropriately advised the resident that it did not have the power to deal with parking enforcement issues. The landlord signposted the resident to the civil enforcement department and/or the police if cars were parking in front of his driveway and restricting the access to his property. As the resident’s property was on a public road, matters concerning parking would fall within the remit of the highway’s agency rather than the landlord. As such, its response was appropriate.
The resident explained on several occasions that due to his medical conditions, his was caused significant distress when the access to his property was impeded. While the landlord noted the inconvenience that was caused to the resident in its stage two response, the landlord could have done more to acknowledge the impact the situation was having on the resident and sought to make further enquiries with the civil enforcement department or highways agency to establish if anymore could be done. The evidence does not demonstrate that the landlord considered or offered any other steps that the resident could try to resolve the issue. For example, sending letters to occupants in the street; increasing inspections in the area or asking civil enforcement to monitor the situation. These would have been reasonable steps to show that it had considered other steps to try and resolve the complaint.
The Service understands that the resident was frustrated after receiving a letter from the landlord which confirmed that he could continue to park freely across his driveway but followed locally based parking restrictions. The letter was ambiguous and did not provide the resident with the permission that he sought. While the landlord was not obliged to provide the resident with permission to park across his kerb, it would have been preferable to evidence the landlord progressing other options as well as showing empathy to the distress and inconvenience this caused him.
Therefore, the Service finds that there was a service failing in the landlord’s handling of the matter, and an order has been made to consider the distress and inconvenience this caused the resident.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s handling of:
1. The resident’s reports of antisocial behaviour (ASB) against neighbour A.
2. An ASB report made by neighbour B against the resident.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure in relation to the landlord’s handling of the resident’s reports of his driveway being blocked.

Orders

The Ombudsman orders, within four weeks of the date of this report that the landlord:
1. Pays the resident £75 in compensation for the distress and inconvenience caused to the resident due to its handling of his reports of his driveway being blocked.