Bournemouth Borough Council (202017558)

REPORT

COMPLAINT 202017558

Bournemouth Borough Council

27 January 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

1. The complaint concerns;
   1. The landlord’s handling of antisocial behaviour reports (ASB).
   2. How the landlord has handled the resident’s concerns regarding the service charges.

Jurisdiction

2. 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.
3. After carefully considering all the evidence, in accordance with paragraph 39(h) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
   1. How the landlord has handled the resident’s concerns regarding the service charges.
4. Paragraph 39(h) of the Housing Ombudsman Scheme states this Service will not consider complaints which concern matters that are, or have been, the subject of legal proceedings and where a complainant has or had the opportunity to raise the subject matter of the complaint as part of those proceedings.
5. The resident brought a case to the tribunal regarding costs incurred within her service charges. These included fly tipping, graffiti, and repair costs for damages amongst other costs. Following the hearing in January 2018, the Tribunal found that the charges were deemed reasonably incurred and payable.
6. The resident has advised that following the hearing, she also wanted to raise concerns regarding the landlord’s representatives at the hearing. The resident said that she had been providing the landlord with evidence of the perpetrators of the fly tipping however it was not taking this into consideration during the hearing. Based on the information provided, it is unclear if this evidence was considered at the hearing. In any event, the resident had the opportunity to appeal the decision made by the Tribunal within 28 days, to include the evidence she asserts she provided however there is no evidence to show that this was done.
7. The resident has subsequently raised concerns that she has brought to this Service about the continued fly tipping and damage to property and the costs she is subject to within her service charge payments from 2019 onwards. The resident has also raised concerns about whether criminal damage should be her responsibility to pay under the service charge.
8. As per the Tribunal findings, it was satisfied that the costs that the landlord reasonably incurs in removing fly tipping and graffiti and in carrying out repairs to parts of the property which have been damaged or allegedly damaged by third parties are properly recoverable by the landlord under the terms of the Lease from the lessees as part of the service charge.
9. The Tribunal further advised ‘it is not an issue for it to determine as to whether or not the landlord should or is able in turn to recover expenses from third parties. If it can do so, all well and good and in that event such recovery would appear no doubt as a credit in the service charge account or indeed never appear in that account. It is conceivable that in a case where the landlord has clear evidence that a third party has caused damage to the property or caused fly tipping and it is proportionate to pursue that third party, then it should do so. However, that does not mean that the costs that the landlord incurs in rectifying damage or removing fly tipping should not be charged to the service charge account even if subsequently there is a credit made to that account because monies are revered from the third party.’
10. As this issue has already been heard before the Tribunal, and the Ombudsman would not overturn such decision, given it cannot in any event consider the reasonableness of a charge, this aspect of the complaint is out of the Ombudsman’s jurisdiction to investigate.
11. The resident has also provided the Service with updates regarding arial charges within her service charge and further incidents of fly tipping. As these incidents occurred post the landlord’s ICP (internal complaints process), this would be something that the resident needs to raise with the landlord directly, to allow it to investigate. Furthermore, the Ombudsman is unable to look into these matters relating to the service charges as explained above.

Background and summary of events

12. The resident is a leaseholder of a two-bedroom flat, and the landlord is the freeholder.
13. The landlord has provided documentation and communication between it and the resident relating to fly tipping, problems with the back door and ASB incidents which occurred from 2013 to present. For the purpose of this report, the Ombudsman has assessed incidents of ASB from the beginning of 2020 as this is approximately 6 months prior to the formal complaint. Matters before this are noted for context only.
14. In 2019 the resident raised concerns about the back door being constantly propped open and the landlord arranged for the Housing Officer in the area to make spot checks on the door and it confirmed that it would look to attach signage requesting the door be closed and not propped open. The resident also reported that the door on the first floor had been damaged and the landlord arranged an operative to address the issue.
15. In June 2020 the resident reported the back door being damaged and the landlord arranged for this to be repaired. The resident expressed concerns that this was a reoccurring issue with other residents forcing open the door.
16. On 28 July the resident emailed the landlord to raise concerns with how it handled her reports of problems she had experienced over the years. The resident felt that the landlord was unable to manage its tenant’s behaviour. The resident made a formal complaint. The landlord acknowledged her complaint on 5 August and explained it aimed to provide her with a response within 20 working days.
17. On 18 August the resident emailed the landlord for an update on her case. The landlord responded to explain that the investigation could take longer than 20 working days following its information request from her, however, advised that it would continue to keep her updated.
18. On 8 September the resident emailed the landlord to advise that it was going to take time for her to provide the information the landlord requested as there was a substantial amount that she had to go through. The resident confirmed she had been in contact with the police regarding a recent incident and expressed her concerns with regards to the ASB from her neighbour. The resident informed the landlord that once she collated all the information, she would contact it to discuss a way forward.
19. Following contact from the police to the landlord regarding damage to the main door reported by the resident, on 24 September 2020 the landlord emailed the resident to arrange a call to discuss the case. The resident responded to confirm that she wished to communicate in writing as she was not comfortable speaking with the landlord over the phone due to past experiences.
20. The police spoke with the landlord who discussed the circumstances with the resident’s neighbour. There was an incident in which the neighbour’s son forced open the back door to the property. The landlord advised that the door was still closing, and the police confirmed that there was no criminal damage therefore there was no further action it would be taking.
21. The resident submitted further details regarding the ASB she was experiencing as well as the concerns regarding the main door.
22. The landlord took actions by contacting the resident’s neighbour about the reports and issued a warning letter. The landlord arranged for the neighbour to have more door fobs in order for the son not to force entry into the property and it was confirmed with the neighbour that any damages to the door would be their cost to cover.
23. In November the resident chased the landlord with regards to the damaged door as she was concerned because it was not closing correctly. The resident also had concerns about the charges to repair the door and whether this would be included in her service charges.
24. On 16 December the ASB case against the neighbour was put on hold as there were no further incidents reported.
25. On 25 December the resident advised that her neighbours son forced open the door again. She explained that when she attempted to talk to him about it, he verbally abused her. The resident also explained that she had items delivered to her which were taken in by someone else in the building. She confirmed that the senders did receive a refund however she was still upset that other neighbours were able to steal her parcels.
26. The resident emailed the landlord on 3 January 2021 regarding the incident that occurred on 25 December 2020 and had concerns regarding why the neighbour and their family were moved to the property. Following a conversation with her neighbour, the resident found out that they had moved from two different properties due to their son’s behaviour which had also affected tenants at their previous properties. The resident raised a further formal complaint.
27. On 11 January the landlord responded to advise the resident that the incident she raised was being investigated. It also referred back to her email of September 2020 regarding her complaint and requested confirmation on whether she was ready to proceed with the formal complaint. The resident provided further details for her complaint during January and on 26 January 2021, the landlord confirmed receipt of the information. The landlord acknowledged the resident’s complaint and advised she would receive a response in 20 working days.
28. The landlord has provided evidence indicating that it was working with the police through January 2021 following the reports of ASB by the neighbour’s son.
29. Incidents continued to occur with the neighbour’s son following on from the incidents which occurred in December 2020. The evidence on file again notes the landlord was liaising with the police regarding the issues, and it was also communicating with the neighbour as part of its investigations.
30. The landlord issued its first response on 17 February 2021. The landlord advised the repair to the damaged door would not be charged to the resident and would be recharged in full to her neighbour. It also confirmed that her reports of ASB were addressed with her neighbour and if she experienced any further issues, these must be reported to its representative dealing with the case. The landlord went on to explain that it appreciated that she had been making reports of fly tipping from 2019 however without eyewitnesses, it was impossible for the landlord to raise charges against the perpetrator. As such, the charge would be paid for by the tenants and leaseholders.
31. The resident responded on 25 February to raise concerns about magazines being left inside the main door and mud in the communal hallway which she had cleaned up. She also mentioned issues regarding the smell of cannabis. The resident requested this information to be held for her stage two complaint.
32. On 4 March 2021 the resident requested an escalation of her complaint to stage two. The resident was unhappy that she had to report instances of criminal damage to the police as they had advised her previously that the matter was the landlord’s issue. She acknowledged that the landlord advised that she would not be charged for criminal damage regarding the door however, queried whether this would be the case for all criminal damage which occurred over the years. The resident was unhappy that only some of her photos and submissions over the years were considered. She was also concerned with the advice to submit any further reports as she had not received responses to some of her previous emails.
33. The landlord acknowledged the resident’s complaint on 5 March 2021 and explained whilst it had a 15 working day timescale, there may be some delays due to the continuing pandemic and further lockdown.
34. The landlord addressed the residents’ issues regarding the magazines and reports of the smell of cannabis on 8 March 2021. It confirmed that it had contacted its communications department, and the third-party delivery company was advised not to leave the magazines in the communal area and if access was gained, for it to post them through the relevant individual properties. The landlord advised the resident to provide names and address details of the persons responsible for fly-tipping in order for it to recharge them accordingly. The landlord also advised her that it would arrange for a Housing Officer in the area to make weekly checks regarding the cannabis smell reports and advised her to report the issue to Crime Stoppers. It further explained that it had not received any other complaints regarding the smell from other residents.
35. On 25 March 2021 the landlord issued its stage two response. It confirmed it was satisfied with the first response provided, confirming that the ASB was dealt with in line with its procedures. The landlord advised the resident that she would need to provide specific details of past ASB reports which she felt were not dealt with previously. It requested the resident to provide specific examples where she had witnessed fly tipping and where she could identify the perpetrator.

Assessment and findings

36. I appreciate the resident has advised that she had experienced ASB issues for many years, but as noted above, the Ombudsman will not investigate complaints which were not brought to the attention of the landlord as a formal complaint within a reasonable period, usually six months.
37. When considering complaints about ASB it is not the role of the Ombudsman to determine whether or not ASB has occurred. Instead, the Ombudsman looks at whether the landlord has taken reasonable and appropriate steps, in line with its policies and procedures, to investigate the reports and take proportionate action, where necessary.
38. The resident experienced ongoing ASB from her neighbour, particularly the son. Evidence shows that he had caused damage to the back door on more than one occasion as well as allegedly verbally abused the resident.
39. The landlord has provided evidence to show that the repairs to the door were charged to the resident’s neighbour in February 2021. It is reasonable for the landlord to charge tenants for damages where it has evidence of the preparator. Evidence shows that the resident’s neighbour took responsibility for the son and the damage to the door. The landlord has also shown the Ombudsman that it was actively engaging with the resident’s neighbour to resolve the issues of ASB reported against the son. The landlord worked with the police and issued written warnings to the neighbour. I appreciate the landlord could have provided the resident with more frequent updates regarding what actions it was taking to progress the ASB case, however given General Data Protection Rules (GDPR), the landlord is limited with regards the information it can share about actions being taken with another individual.
40. The Ombudsman acknowledges that where there are underlying issues affecting a landlord’s ability to handle ASB, it is not straightforward for the landlord to address the problem as quickly as it would like, and steps must be taken to ensure that the matter is handled appropriately. Due to the neighbour’s son’s personal circumstances the landlord has shown the Ombudsman that it is working with third party agencies to address the issues in line with its ASB policy.
41. Whilst the resident states she does not understand why she needs to constantly report criminal damage to the police as they refer her to her landlord, as per section 8.13 of the ASB policy, the police work very closely with the landlord in dealing with ASB, particularly where the behaviour is also a criminal offence. Where the report of ASB might also be considered a crime, the Housing/ASB officer will advise the resident to contact the police. When the resident reports an incident to the police, the Housing/ASB Officer should still investigate the case as appropriate. The landlord has shown that it had been in communication with the police regarding the resident’s ASB reports (where the perpetrator was known) and took appropriate actions where necessary.
42. In line with the landlord’s ASB policy, all incidents are to be reported in order for it to keep a clear case file of ongoing issues and reports, in order for it to take the necessary actions. The landlord requires sufficient evidence to support any legal actions it may take against the perpetrator and therefore it is reasonable for the landlord to ask the resident to continue to report any incidents of ASB, including where they may be of a criminal nature.
43. Given the evidence considered, the landlord has followed its process with regards to dealing with the resident’s reports of ASB. It has provided the right advice regarding its limitations with respect of instances where it is unable to establish the perpetrator. The landlord requested the resident to provide examples of past ASB incidents where she could provide evidence to support her case against a specific perpetrator. This was a reasonable request for it to make in relation to any instances where the resident believed that the landlord did not fully address the reports. I note the resident has not provided exact incident details and therefore the landlord again would be limited in its response and actions.
44. The evidence also makes clear that where the resident reported damage to communal property, the landlord effected the repair in a reasonable time. As per the Tribunal decision, in instances where there is insufficient evidence to indicate who has caused the damage, this is something that would be chargeable to the tenants and leaseholders within the service charges. This is in line with the resident’s leaseholder agreement.

Determination (decision)

45. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s reports of antisocial behaviour.
46. In accordance with paragraph 39(h) of the Housing Ombudsman Scheme, the resident’s complaint about the landlord’s handing of her concerns regarding the service charges is out of jurisdiction.

Reasons

47. The landlord has shown us that in instances where the resident has reported ASB, and the perpetrator can be identified, the appropriate actions have been taken in line with its ASB policy.
48. The resident’s concerns about the service charge have been considered by a tribunal and the subsequent complaints continue to relate to the reasonableness of the charge.

Recommendations

49. The Ombudsman recommends that the landlord ensures that it provides regular updates to residents with regards to actions it is taking during an investigation into ASB reports, where it is able to in line with GDPR.