Camden Council (202014959)

REPORT

COMPLAINT 202014959

Camden Council

5 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 resident’s complaint is about the landlord’s:
1. Decision to serve her a ‘notice of seeking possession’ (NOSP).
2. Handling of her concerns about a neighbour’s flooring.
3. Complaint handling.

Background and summary of events

The resident is a secure tenant of the landlord, whose tenancy commenced on 25 July 1988. The property is a 1 bedroom first floor flat.
The landlord’s ‘Tenancy Conditions’ document states that residents “must not put down laminate floor coverings or other types of wooden or artificial floor coverings without written permission”. The landlord says that it will not give permission unless it is satisfied that enough will be done “to reduce noise nuisance to other residents”.
A NOSP is a prescribed form which must be served by a landlord as the first step towards ending a secure tenancy and reclaiming possession of the property. The notice must specify the grounds under which possession is sought and the date after which the landlord may make an application to court. The notice is valid for 12 months from the date it is served. Service of a NOSP does not automatically begin legal proceedings and the landlord may decide not to make an application to court and continue the possession process.
The landlord operates a 2 stage complaints procedure. Its ‘Complaints Policy and Procedure’ says it will provide a response within 10 working days at stage 1 and 25 working days at stage 2. The policy says that residents should submit a complaint within 12 months of the date of the relevant incident. It states that a request to escalate a complaint to stage 2 of its procedure should be made within 28 calendar days of the stage 1 response being provided.
The resident says that, on 26 October 2019, she contacted the landlord to express concern about the neighbour above her laying laminate flooring “without any written permission and without adequate underlay”.
On 5 May 2020, there was an incident whereby some flowerpots dropped from the resident’s windowsill into the communal area below where another resident was standing.
The landlord emailed the resident on 6 May 2020. It said it had been trying to contact her to discuss the incident the previous day and asked to arrange a convenient time to speak with her.
The resident responded by email on 7 May 2020. She said that she had knocked the pots from the windowsill accidentally whilst leaning out of it. The landlord replied the same day advising that it had witnesses to the event who claimed the resident “deliberately threw/dropped the 2 pots out of the window in the direction of the resident” and that she later shouted an offensive term towards a neighbour. It advised that it would be reviewing the incident internally to decide what “possible action to take”. The landlord asked the resident if there were any circumstances behind her behaviour which she required support with.
The landlord telephoned the resident on 14 May 2020 to discuss the incident. The landlord has not provided any record of this call, but it is referred to by the resident in emails of the same date.
On 16 June 2020, the landlord telephoned the resident again to ask if she had any further comments to add to a report it was compiling on the incident. During this call the resident raised the issue of the neighbour above’s flooring and the resulting noise she was experiencing.
The landlord wrote to the resident on 17 June 2020. It explained that it had conducted an investigation into the incident of 5 May 2020, including viewing CCTV footage and speaking to witnesses. It said the CCTV footage did not support the resident’s account of events due to the “trajectory and speed” at which the pots fell and the fact they landed in “completely different locations”. It also said it had received a witness statement from a member of staff confirming they had heard the resident call a neighbour the offensive term. It said as a result of its investigation it was giving her a written warning.
The resident emailed the landlord on 22 June 2020. She said she wished to appeal the written warning as the landlord had carried out its investigation “without letting me have a say at all in the process or laying down in writing what the issues were you were investigating and asking me to respond”.
On 24 June 2020, the resident emailed the landlord to say she had been interviewed by the police about the incident of 5 May 2020. She stated the police would be taking no further action which she said supported her calls for the landlord’s warning to be withdrawn.
The landlord emailed the resident the same day to advise the matter had been passed to its complaints team.
The landlord wrote to the resident on 29 January 2021 informing her that its contractor required access to the property to carry out an electrical inspection. An appointment for this was subsequently arranged for 11 February 2021.
The resident emailed the landlord on 6 February 2021. She said she intended to take legal action unless the landlord either moved her upstairs neighbours to another property or ensured that underlay was installed to address the noise issue caused by their flooring.
On 11 February 2021, the landlord’s contractor sent an operative to the resident’s property to carry out the electrical inspection. The contractor reported that the resident had sworn and been “generally abusive”, so its operative had decided to leave, but had then been attacked by the resident with a baseball bat whilst waiting for the lift.
The resident contacted the landlord using social media on the same day. She said the operative had “physically threatened” her and “attempted to enter” her property.
On 15 February 2021 the landlord wrote to the resident to say it had been made aware of the incident of 11 February 2021. It said it had attempted to contact her to discuss this, and other issues she had recently raised, but been unable to reach her. It asked her to contact it.
The landlord served the resident with a NOSP on 18 February 2021. This Service has not been provided with a copy of the NOSP, but subsequent correspondence between the parties indicates that the grounds listed included both the incidents of 5 May 2020 and 11 February 2021.
On 2 March 2021, the resident submitted a claim to the county court against the landlord. She sought an injunction to make the landlord enforce the terms of its tenancy agreement and remove permission for the neighbour above’s flooring, and also to stop its “harassment and abuses of process” including “a 22nd March 2021 eviction”.
The landlord emailed the resident on 5 March 2021. It clarified that “the date on the recent notice is not a possession date but a date after which the council will consider its next steps”.
The resident’s claim was heard at the county court on 9 March 2021. The court paperwork records that the claim was withdrawn by the resident after the judge indicated “he does not consider he has jurisdiction to give the remedies sought by the claimant” (the resident).
The landlord emailed the resident on 16 March 2021. It said that “regarding the notice that was served in February. This will remain on file for 12 months. This notice will not be acted upon unless there are further incidents which I trust there will not be. If there are any other reports of allegations of breach of tenancy then we will consider instigating Injunction and/or Possession proceedings”. It offered to arrange a telephone meeting with the resident “so we can agree the help we can provide you with”. The landlord’s records indicate a telephone meeting was held the following day, but no details of what was discussed have been provided.
On 25 March 2021, the resident made a complaint to the landlord using the council’s online complaint tool. She said the landlord had never responded to her complaint made in July 2020. She expressed dissatisfaction at the landlord’s handling of the incidents on 5 May 2020 and 11 February 2021 and described its actions as “disproportionate” and causing her “immense stress and alarm as well as fear and ill health”. The landlord closed the complaint the following day based on the fact that it had previously corresponded with the resident about the matters raised and “spent over an hour on the phone” with her the previous week.
On 13 April 2021, the resident made a further submission via the online complaint tool stating that, as the landlord was now dealing with the flooring issue and she had been told her written warning would expire in May 2021, she wished to “formerly drop the previous complaints”.
The landlord emailed the resident on 27 May 2021 to inform her that the upstairs neighbour was due to have carpet installed throughout their property “within the next 1-2 weeks” it said it hoped that this would “lead to a significant or total reduction in the household noises” the resident had experienced.
Following contact from the resident, the Ombudsman contacted the landlord on 13 January 2022 asking it to respond to the resident’s complaint of 25 March 2021.
The landlord provided its stage 1 complaint response on 28 January 2022. It said that:
1. It had spoken to the staff members involved and also called the resident “to discuss what had taken place” and why it “viewed these incidents as unacceptable”.
2. It considered serving the NOSP had been “proportionate to the incidents that had taken place”.
3. The NOSP would remain valid for 12 months, however this period had now almost elapsed.
4. It had raised the flooring issue with the neighbour above, after the resident brought it to its attention, and this was subsequently resolved.
On 20 December 2022, the Ombudsman contacted the landlord on the resident’s behalf asking it to escalate her complaint to stage 2 of its process.
The landlord provided its stage 2 complaint response on 27 January 2023. It said that its complaints policy “allows for investigation within 12 months of the issue(s) in question, and for a review to be requested within 28 calendar days of the stage 1 response” and that both the relevant incidents and its stage 1 complaint response “fell outside of these parameters”. It said due to this it was unable to investigate matters but had reviewed the stage 1 complaint response and was satisfied with the investigation and decision.

Assessment and findings

Scope of the investigation

The Ombudsman seeks to determine what is fair in all the circumstances of the case. The resident has disputed the landlord’s versions of the events which led to it serving her with the NOSP. It is not the role of this Service to determine which version of events is accurate, or to prefer one over the other, but only to assess whether the landlord acted reasonably in serving the NOSP based upon its investigations and the information available to it at the relevant time.
As part of her complaint, the resident also raised concerns about the landlord’s handling of the allegations against her compared to how it had handled allegations she had previously made about the behaviour of neighbours. This Service is not able to consider, or draw comparisons to, the landlord’s handling of matters which fall outside the scope of this investigation. Instead, this investigation will focus on the landlord’s handling of the events summarised above, and whether this was fair, reasonable and in keeping with its policies and procedures.

Decision to serve NOSP

The landlord’s decision to serve the resident with a NOSP was based upon the two incidents occurring on 5 May 2020 – involving flowerpots dropping from her window, and 11 February 2021 – involving an altercation with a contractor’s operative.
After the incident of 5 May 2020, the landlord emailed the resident the next day in an attempt to arrange a phone call to discuss what had happened. The resident replied by email on 7 May 2020 and provided her account of events.
In response the landlord provided details of its investigations thus far, which it said involved witness accounts which did not “correlate” with the resident’s. The landlord also reasonably enquired about any support it may be able to provide the resident if she was experiencing “distress” which may have contributed to the incident.
The landlord subsequently spoke to the resident on the phone about the incident on 14 May 2020 and then contacted her by email on 16 June 2020 allowing her to give any final comment before it concluded its investigation. Based upon this, the resident was provided with reasonable opportunity to give her account and challenge details of the conflicting accounts given to the landlord by other witnesses.
The landlord served the resident with a written warning on 17 June 2020. The warning letter appropriately outlined the investigations which it had undertaken, acknowledged the resident’s account of events, and detailed its findings which it said “refuted” this.
Following the incident of 11 February 2021, the landlord wrote to the resident on 15 February 2021 to say that it had been unable to reach her by phone and wished to “discuss the matter”. It served her with the NOSP 3 days later.
Whilst it is evident the landlord did not carry out as prolonged an investigation following this incident as it had for the one in May 2020, the allegation in this instance involved the serious matter of a physical assault against a contractor using a weapon and therefore it was reasonable for it to act swiftly. The landlord had taken steps to speak with the resident about the incident – which she declined due to her dissatisfaction with its staff’s handling of the previous incident.
The landlord clarified to the resident on 5 March 2021 that the date on the NOSP was “not a possession date but a date after which [it] will consider its next steps”. Although this Service has not been provided with a copy of the NOSP itself, or any enclosed covering letter, there is no evidence that the landlord at any stage indicated an intention to proceed with legal action, and it explained that the notice would “not be acted upon unless there are further incidents” to the resident in an email of 16 March 2021 – prior to the date upon which it became able to apply to court.
The resident has asserted that a lack of police action in relation to both of the incidents indicates that the landlord was unreasonable in serving her with both the written warning and later the NOSP. However, the burden of proof in criminal matters (as investigated by the police) is significantly higher than in civil matters (as would be dealt with by the landlord) – being “beyond reasonable doubt” as opposed to “on the balance of probabilities”. As a result, it was reasonable for the landlord to feel that the relevant burden of proof had been met, even if the police did not.
This Service does not doubt that the landlord serving her with the NOSP caused the resident a high level of distress and concern about losing her home. However, the landlord was entitled to rely upon its contractor’s version of events (which had also been reported to the police). In light of the resident having also received a written warning for the previous incident the landlord serving the NOSP cannot be said to have been unreasonable. The landlord’s communication with the resident around both incidents and its actions were clear and timely, and as such there is no evidence of maladministration.

Neighbour’s flooring

The resident has said that she first raised concerns with the landlord about the neighbour above laying laminate flooring with insufficient underlay on 26 October 2019. Although this report was made by phone, and the landlord has provided no records in relation to it, it formed part of her court application and she has provided relevant photographs taken on that same day.
The landlord’s ‘Tenancy Conditions’ are clear that this represents a potential breach of tenancy which it would have been appropriate for the landlord to investigate. However, the resident said the landlord failed to do so, and it has not provided any evidence to dispute this.
The resident raised the matter again on 16 June 2020 during a conversation with the landlord about the incident of 5 May 2020. Again, the landlord has failed to provide any evidence that it followed up on the flooring, despite the resident reporting that she was suffering from noise nuisance due to it.
On 6 February 2021, the resident gave the landlord notice that she intended “to take legal action” unless it addressed the insufficient underlay, describing the noise from the neighbours above as being “like a playground on my head 24 hours a day”. Although the landlord’s email of 15 February 2021 (in relation to the altercation with the contractor) made mention of also wishing to discuss other emails it had received in relation to her property, it is unclear whether this is what was being referred to and there is no evidence that such a conversation took place.
Indeed, in an email of 5 March 2021 the landlord asked the resident “you say that you have an issue with the upstairs neighbour. Can you let me know what that issue is please?” indicating that the matter had not been recorded appropriately or investigated prior to this point.
It was not until 27 May 2021 that the landlord contacted the resident and advised that the upstairs neighbour would be having the property carpeted throughout. The landlord has not provided any information as to how this came to be and what, if any, action it took to enforce the tenancy conditions.
Overall, this represented a period of 18 months from the resident first bringing the matter to the landlord’s attention, during which it failed to appropriately investigate her reports of a tenancy breach. The landlord’s inaction left the resident experiencing noise disturbance which she described as making it “very difficult to sleep or to work…from home” and causing her significant stress.
Although the resident raised the issue intermittently, the landlord missed several opportunities to address it which led to the frustrated resident attempting to take legal action to force it to enforce its own tenancy conditions. The landlord’s stage 1 complaint response did not acknowledge its failings, stating only that “when this was brought to our attention the matter was raised with your neighbour and subsequently resolved”. Therefore, no redress was offered to the resident for the landlord’s failings or the distress and inconvenience caused. This represents maladministration.

Complaint handling

The resident emailed the landlord on 22 June 2020 expressing her dissatisfaction at the landlord giving her a written warning for the incident of 5 May 2020 and asking to appeal this. The landlord responded on 24 June 2020 to tell her that it would be handling the matter as a complaint. However, there is no evidence that the complaint was appropriately logged, or a stage 1 response provided.
On 25 March 2021, the resident submitted a complaint to the landlord through the council’s online reporting tool. In this she referred to her earlier complaint and the fact that she had never received a response to this. Internal landlord correspondence shows that it closed the complaint the following day as it had been corresponding with her on the matters raised and spoke to her on the phone.
As the resident had requested to raise the matter as complaint, it would have been appropriate to handle it as such. This would have enabled the landlord to clarify its position, within the framework of its internal complaints procedure, and possibly served to draw the matter to a close. In closing the complaint, the landlord denied the resident access to its complaints procedure thus obstructing her right to escalate her complaint for review and subsequently refer it to this Service for investigation. The landlord has not provided any evidence that it informed the resident that her complaint had been closed in this manner and she contacted this Service on 6 April 2021 to advise that she was still awaiting a complaint response.
Although it is noted that the resident contacted the landlord on 13 April 2021 to withdraw her complaint, this was beyond 10 working days within which a stage 1 complaint response should have been provided and so offers limited mitigation.
A stage 1 complaint response was not appropriately provided until 28 January 2022 – after this Service requested it on the resident’s behalf. By this stage, the NOSP which was subject to the complaint had nearly expired due to the time elapsed. The landlord’s stage 1 response was provided within 10 working days of this Service’s request in accordance with its policy.
Following the stage 1 response, the resident contacted this Service requesting that we ask the landlord to escalate her complaint to stage 2. There is no evidence that she had previously contacted the landlord to request this herself. This Service emailed the landlord on 20 December 2022 and the landlord provided its stage 2 response on 27 January 2023 – within the 25 days allowed by its complaints policy.
The landlord’s stage 2 complaint response advised that it was unable to investigate the matters raised due to the length of time elapsed since they occurred and its stage 1 response was provided. This was reasonable considering it stated it had not been contacted by the resident about anti social behaviour or her written warning in the 12 months since issuing its stage 1 response, the NOSP had long since expired, and the issue with the flooring had been resolved. The position is also supported by its policy.
In summary, the landlord failed to appropriately log and respond to the resident’s complaints made on 22 June 2020 and 25 March 2021. This significantly impeded her access to both its own complaints procedure and the Ombudsman investigating her complaint. Although her complaint was eventually logged and appropriately responded to, this required her to seek intervention from this Service and a stage 1 response was not received until almost 18 months after she first made her complaint. This represents maladministration in the landlord’s complaint handling.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration in the landlord’s decision to serve the resident with a NOSP.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s handling of the resident’s concerns about her neighbour’s flooring.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s complaint handling.

Reasons

The landlord carried out a reasonable investigation into both incidents which led to it serving the NOSP and gave the resident with the opportunity to provide her versions of events. It communicated appropriately with the resident throughout and used its discretion in electing not to proceed with legal action unless further incidents occurred.
The landlord failed to investigate the resident’s reports in relation to the neighbour’s flooring, even though these amounted to a potential breach of tenancy. As a result, the resident lived with increased noise disturbance for a period of 18 months, and attempted to take legal action to make the landlord enforce its own tenancy conditions, before the landlord resolved matters.
The landlord failed to appropriately log and respond to the resident’s complaint in accordance with its complaints process on 2 occasions. This led to the resident approaching this Service for assistance with progressing her complaint and significantly delayed her in bringing her complaint to the Ombudsman for investigation.

Orders and recommendations

Within 4 weeks of the date of this determination the landlord is ordered to:
1. Pay the resident £600 compensation composed of:
  1. £400 for the distress and inconvenience caused by its handling of her concerns about the neighbour’s flooring.
  2. £200 for the distress and inconvenience caused by its complaint handling.
2. Write to the resident apologising for the maladministration identified in this report.
The landlord should provide evidence of compliance with these orders to this Service.