Camden Council (202009609)

REPORT

COMPLAINT 202009609

Camden 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

The resident’s complaint is about:
1. The landlord’s response to the resident’s reports of antisocial behaviour (ASB).
2. The quality of the landlord’s communication.

Background and summary of events

The resident is a leaseholder of a two-bedroom fourth floor flat in a block, which flat he purchased on 24 April 2007. The resident did not occupy the property but had let it out to a tenant, who will be referred to as the tenant in this report. The neighbour, who will be referred to as the neighbour, was a tenant of the landlord.

The legal and policy framework

Under the landlord’s ASB policy, the resident was entitled to report noise nuisance and if ASB was causing the resident alarm and distress. Any crimes were to be reported to the police. The resident would receive an email from the landlord with details of the action taken. It had a team of officers to investigate reports of ASB, find solutions and offer appropriate interventions to residents. It also had a team of patrol officers providing a visible and reassuring presence. Along with “disruption” of ASB, the patrol gathered information and intelligence and where possible would seek to engage perpetrators in addressing their actions.
Under the ASB, Crime and Policing Act 2014, a court may grant an injunction to a social landlord where the court is satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in anti-social behaviour. The second condition is that the court considers it just and convenient to grant the injunction for the purpose of preventing the respondent from engaging in anti-social behaviour. Where a party is under a disability, the court can have regard for the provisions of the Equality Act 2010 which would afford the respondent a defence to the proceedings.
The complaints policy set out various remedies the landlord may offer, including compensation. It would follow the Housing Ombudsman’s guidelines. It would consider the amount of time the complainant spent trying to resolve the issue, the difficulty the resident experienced trying to resolve the issue, and distress to the resident and/or others. The policy set out a range of compensation which ranged from £25 per month to £500 and £1,000 in severe and prolonged cases.
The landlord operated a two–stage complaint process. The first stage had a response timescale of 10 working days and 25 working days for its second stage.

Chronology

According to the resident’s complaint, the noise complained of began in December 2019 when the neighbour moved into the property above the resident’s flat. The tenant first reported noise and ASB to the landlord on 7 April 2020. The tenant made a number of further reports in April, May and June 2020. The reports mainly comprised of arguments, screaming, hammering, hoovering, items being dropped and loud music at “random hours”, including in the early hours of the morning. The tenant also reported that he considered there were incidents of domestic abuse. The landlord responded to the tenant on 22 April 2020 providing an explanation for the volume of the TV, attributing it to the neighbour’s hearing and it had advised the neighbour to wear headphones. It also assured the tenant that while it could not share the detail, it was working with agencies to address the situation, protect the neighbour, and prevent effects on the occupants of the block.
The resident wrote to the landlord on 23 April 2020 requesting information. The landlord replied on 29 April 2020 to state it was working with several agencies but was unable to share information about the neighbour. On 29 and 30 April 2020, the resident requested that the landlord lay flooring in the property upstairs and provide him with an update every week. He stated in this and further communications he considered the landlord to be in breach of its lease. He also put a number of questions about the letting of the property above, as well as seeking what precise steps the landlord was taking. The landlord replied the following day and stated that it was unable to provide daily updates or share information with the resident. The resident replied on the same day stating he merely wanted “just” a short call or email. He put further questions about the landlord’s specific actions in relation to the neighbour including which agency had been contacted, what had the outcome been, and about the circumstances in which the neighbour was allocated the flat.
On 13 May 2020, the landlord wrote to the neighbour at length stating that her tenancy was at risk because of the reports of ASB. It also added that the landlord was considering laying carpet “with good underlay” in the neighbour’s flat.
The landlord wrote on to the resident on 14 May 2020, again stating that it was still working with agencies “progressing through with different actions”. It was unable to provide any more detail as anything more would, by implication, unavoidably reveal confidential information. It explained the local authority’s allocations policy. The resident wrote further emails and continued to press the landlord for answers. On 3 June 2020, the landlord provided a further explanation about its data protection duties and referred the resident’s request to its data protection officer, who also explained on 10 June 2020 the reasons why it was unable to share information about the neighbour.
The resident wrote to the landlord on 8 June 2020 stating he was awaiting an update and copied in the complaints team. The landlord responded on 16 June 2020 assuring the landlord that it was still working on addressing the issues and requested incident logs. The resident replied the next day stating that providing logs was doing the landlord’s job, asking again about what action the landlord was taking and when were they going to fit carpets and sound–proofing. He stated he copied in the complaints team because he was not getting answers from the housing officers. He also requested confirmation that the complaints process had been exhausted.
On 19 June 2020, the landlord considered a grant application for a carpet in the neighbour’s flat.
On 25 June 2020, the resident wrote to the landlord stating it had failed to take any effective action, failed to answer his questions, and failed to call him to update him. He put a series of questions, including those raised previously and whether it was going to evict the neighbour. The landlord logged this email as a formal complaint with a due response date of 9 July 2020.
The resident’s tenant moved out of the property on or around 29 June 2020, citing to the landlord the impact of the noise and ASB on him as the reason.
On 1 July 2020, the landlord made a decision to fund laying a carpet in the neighbour’s property.
On 3 July 2020, the resident wrote to state that his complaint was about individual officers of the landlord for not replying to the resident’s emails, there being no carpet in the neighbour’s flat and not being told how it was that the landlord had granted the neighbour a tenancy.
On 24 July 2020, the landlord considered serving a notice seeking possession. There is no evidence whether it did do so.
The landlord responded to the resident’s complaint on 27 July 2020. It described the complaint as:
1. The nature of its responses and lack of response from particular individuals.
2. The landlord had not effectively dealt with the neighbour.
Its response was as follows:
1. It could not share information about what action it was taking in relation to the neighbour due to issues of confidentiality.
2. It had provided details of its allocations policy which was a satisfactory response to the resident regarding the neighbour’s move into the flat.
3. It had explained it let properties unfurnished but was assisting the neighbour with a carpet however there were delays due to the pandemic.
4. It accepted that it could have provided broader information about the types of remedies and actions it could take. It accepted that it could shared which partners it worked with, in order to reassure the resident. It listed those partners.
5. It explained the reason for the lack of responses from a particular individual manager was due to him being on leave longer than anticipated. It set out the manager’s attempts to contact the resident.
6. It upheld the resident’s complaint on the basis it could have provided more information and the manager should have written to the resident when he could not get through by telephone. It offered £100 compensation for its failure of communication.
On 29 July 2020, the resident requested a review stating that the main issue was the lack of effective action by the landlord rather that the housing officers themselves.
There was a further exchange of emails in August 2020. The landlord investigated a report by the resident that the neighbour dropped bottles from her window at a time when the resident was not, and could not have been, in occupation. On 21 August 2020, the landlord informed the resident that it would be writing to all residents to inform them of the increased security patrols at the block and that nuisance and anti-social behaviour could be reported to both the landlord and police. Legal action was being pursued, however at this point it was unable to share the specific details.
On 23 September 2020, the landlord considered that a carpet should be laid if the neighbour was not moving out. It again considered applying for a grant.
On 25 September 2020, the landlord wrote to the resident with its second response as follows:
1. It could not share information concerning the neighbour’s move. It had shared what it had been able to. It acknowledged the resident’s continued dissatisfaction that it could not share sensitive information and this led to his supposition that the landlord was taking little or no action on matters, but it was satisfied overall it had communicated the landlord’s position.
2. The landlord informed the resident that he should address his claim for material breach of his lease to the landlord’s legal department. Its complaints team could only investigate administrative processes and communication with the service.
3. It had explained that attempts were being made to resolve a complex situation during a pandemic and with limited resources. Many agencies were involved and the landlord could not remove tenants as requested. It acknowledged the length of time this was taking, and the effects on his property.
4. It did not uphold the complaint but apologised for the initial lack of responses and that the complaint response was delayed.
While the Ombudsman does not investigate events post the completion of the landlord’s internal complaints procedure, it is noted there were no reports of ASB by other occupants of the block in October 2020 until a single report on 12 November 2020 from another resident. The landlord’s actions focussed on arranging for the resident to be rehoused. An alternative property became available and the neighbour moved out of the property on 7 March 2021.

Assessment and findings

The resident raised in his request for a review of his complaint a contention that the landlord was in breach of the lease, that he had lost his tenant due to the ASB and was unable to relet the property while the ASB was ensuing.
The Ombudsman does not make findings of negligence or breach of contract leading to financial loss and it does not make orders of compensation in the way that a court may order a payment of damages. The Ombudsman only considers financial loss in limited circumstances The matters that the resident raised were matters of law which proper forum are a court due to the complexity and the type of remedy the resident was seeking.
In the circumstances, the Ombudsman has not investigated and will not make any findings on whether the landlord was legally liable to the resident for the neighbour’s behaviour or whether it was liable for any financial losses of the resident, or whether the landlord was in breach of its lease in that context. Those issues would be a matter of legal argument and beyond the Ombudsman’s jurisdiction in the circumstances of the case. The role of the Ombudsman is to consider the responses by the landlord to the resident’s reports, whether it complied with its legal obligations and policies, and to consider any impact on the resident of any service failure, if one occurred.
The Ombudsman has not seen the neighbour’s tenancy agreement. However, it is likely to contain standard clauses regarding not causing nuisance. Moreover, nuisance is a ground for possession for a secure tenancy and will be governed by the Housing Act 1985. In any event, the landlord did not dispute the neighbour was in breach of her tenancy agreement.
The Ombudsman would expect a social landlord to manage and restrict, if not eliminate, ASB. The landlord should consider the effect of the ASB on the occupants of the building affected by ASB. However, a social landlord also had a duty to all its residents, including the perpetrators of ASB and in particular towards its vulnerable residents. The landlord has to balance competing duties between its residents.
Its options to seek possession against the neighbour were limited by the neighbour’s circumstances and rendered impossible by the pandemic. It was not possible to evict the neighbour for a number of reasons. The principal reason being that possession proceedings were stayed during the pandemic, which stay began on 27 March 2020 and was extended so that it did not end until 20 September 2020, at which time the ASB situation had begun to improve. Once the stay had ended, there remained certain restrictions, even in relation to ASB cases. Moreover, the landlord would have faced a number of difficulties securing a possession order. In most cases, a court has a discretion whether to grant a possession order and even if the landlord’s grounds for possession were such that it would be entitled to a mandatory (automatic) possession order (which did not appear to be the case here), the neighbour would have had a number of legal arguments in her defence. Even if the landlord had issued proceedings early on, and it had been ultimately successful, they would have been stayed until 20 September 2020 and then taken several months to conclude.
The evidence showed that the landlord was proactive from early on and on receiving reports of ASB. The landlord considered on 22 April 2020 onwards whether to serve a Notice Seeking Possession serves as a formal warning and is a precursor to proceedings. The Ombudsman is unable to share all of the landlord’s reasons for not serving a notice, which was a three month notice at the time. One of the reasons for not serving a notice was that possession proceedings were suspended until 20 September 2020 due to the pandemic. It considers the landlord’s rationale reasonable, given the complexities of the circumstances.
While it was unable to evict the resident, the landlord acted appropriately taking alternative steps. The Ombudsman is unable to share all of the information with the resident that the landlord provided to this service. The situation was clearly very complex and difficult to manage. The evidence shows that the landlord was seeking to address the issues of ASB prior to the tenant’s reports. On 3 April 2020, the landlord arranged that its officers patrol the area and as the case progressed, for extensions of the patrol.
The evidence also shows that the carpet laying was delayed by events beyond the landlord’s control, including lockdown. It also showed the neighbour was out of the property for some weeks from approximately 24 July 2020 to 25 August 2020. It investigated the resident’s specific report regarding throwing bottles at that period so the neighbour could not have been responsible. The neighbour’s partner who appeared to be the cause of most, though not all of the ASB, was no longer attending the property. It also showed that by September 2020 there was an improvement in the noise in that the number of reports reduced.
It liaised with a number of statutory and non-statutory agencies. It sought to control the music levels and kept in close contact with the neighbour and sought to manage her behaviour. The landlord wrote warning letters and kept its decision making under consideration. It considered temporary accommodation for the neighbour. Later on in the case, it focussed on the neighbour securing alternative accommodation, which avenue it pro-actively pursued.
It was reasonable that the landlord considered laying carpet. The evidence showed that it was prevented from doing so during lockdown by government guidance which stated that works were to be limited to essential works only. It was reasonable of the landlord to explore grant funding in the meantime, and to then make the decision to fund the carpet. The evidence showed that the landlord did not implement its decision to lay carpet due to the fact the property was inaccessible for a period, during which time the neighbour was away from the flat, from approximately 24 July 2020 to 25 August 2020.
There was no explanation why the landlord reverted in September 2020 to consider grant funding rather than itself funding the carpet. However, the evidence showed that the landlord did not pursue the carpet laying at that stage, as it was expected the neighbour would be moving out. The decision was reasonable as it may not have been proportionate to have incurred the expense of laying carpet if the neighbour was moving out. In any event, the ASB reports were diminishing at that period.
There was no evidence that the landlord considered injunction proceedings with an exclusion order against the neighbour or neighbour’s partner. Such proceedings were not subject to a stay. Seeking an exclusion order against the neighbour would have been problematic, as she was a tenant of the landlord, this was her home and because of her circumstances. However, seeking one against her partner would have been less so. Even so, the test for granting an exclusion order is high and would have been higher in lockdown in a pandemic. The Ombudsman cannot determine what would have been the outcome and therefore the impact on the resident of any omission, if there was one, by the landlord in this regard. Moreover, there would be no guarantee that would have eliminated all the ASB as it was not entirely attributable to the neighbour’s partner. In the circumstances, the Ombudsman does not find service failure but will make a recommendation in that regard.

The quality of the landlord’s communication

The Ombudsman would expect the landlord to update the resident regarding its actions as was appropriate and proportionate, in line with the landlord’s own ASB policy. However, it was reasonable of the landlord to state clearly that it could not comply with the resident’s request to provide weekly updates. It would not have been a proportionate use of the landlord’s time and it was managing the resident’s expectations to be clear on that point.
The landlord’s decision not to share information about the neighbour with the resident was appropriate. Given the resident was aware of the neighbour’s identity, sharing much of the information he requested would have been a breach of the resident’s data protection rights and therefore unlawful. It shared what information it reasonably could. The evidence showed that the landlord responded to the resident’s communications, while not as promptly as the resident wanted, within a reasonable timeframe. The landlord’s explanation that more detail would have revealed confidential information was both appropriate and reasonable. The landlord managed the resident’s expectations by setting and explaining the limits on how much information it could share and that it would not provide weekly updates.
The Ombudsman understands that the resident found the situation frustrating and while he was not entitled to much of the information he requested, his request was an expression of his wish to see progress. It was reasonable that the landlord appreciated that the lack of detailed information gave the impression it was not taking little or any action and that this was frustrating for the resident. It recognised in in its first complaint response that it could have shared more than it had.
However, in the Ombudsman’s view, the landlord could have considered further what information it could provide such as explaining the position on bringing possession proceedings during the pandemic and once the stay ended, a few days prior to the landlord’s final response. It could have been clearer on what actions it could take. It made a number of requests for logs in order to support any legal action and made other references to legal action. While it was reasonable to seek evidence to support any legal case, the references to legal action may have raised the resident’s expectations. The position regarding the stay of possession proceedings was extended from time to time at short–term notice by the courts so the Ombudsman does not find service failure in its requests for diaries. However, in the circumstances, it would have been appropriate to have updated the resident in order to manage his expectations.
The landlord could have considered updating the resident in relation to the position regarding the carpet and, later on in the case, that it was focusing on the neighbour moving away from the property. These are additional steps in terms of communication which the landlord could have taken. However, doing so was not likely to have significantly reduced the resident’s frustration and it would not have improved the substantive issues and therefore impact on him. In the circumstances, the compensation of £100 the landlord offered was, in the Ombudsman’s opinion, reasonable redress for the landlord’s failures in relation to the quality of its communication.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman’s Scheme, there was no maladministration in relation to the landlord’s response to the resident’s reports of antisocial behaviour.
In accordance with paragraph 55 of the Housing Ombudsman’s Scheme, there was reasonable redress offered in relation to the quality of the landlord’s communication.

Reasons

It was not open to the landlord to evict the neighbour during the stay of possession proceedings. The landlord took what alternative steps it could to address the situation, which the evidence showed improved over time and was finally resolved by the neighbour being rehoused. While the situation lasted a significant time, the landlord did what it reasonably could to address it.
While the landlord responded to the resident within reasonable time frames, and it provided detailed explanations for its reasons not to share information with the resident, its communication regarding the substantive issue (the ASB) could have been more forthcoming. However, in the Ombudsman’s view, the compensation offered by the landlord was reasonable in the circumstances to recognise the failings here.

Recommendations

The landlord should consider training to ensure that its officers provide information and updates where it is appropriate and proportionate to do so and explore its legal remedies at its disposal to protect its residents, in particular action in relation to its non-tenants.