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Dudley Metropolitan Borough Council (202109196)

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REPORT

COMPLAINT 202109196

Dudley Metropolitan Borough Council

30 May 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 is about:
    1. The landlord’s response to the resident’s reports of antisocial behaviour (ASB).
    2. The landlord’s response to the resident’s request for reimbursement of costs related to his garden, travel, rent and council tax.
    3. The landlord’s handling of the associated complaint.

Background

  1. The resident was a tenant of the landlord at the property between December 2018 and July 2020. The resident’s neighbour lived in the flat above his property and was also a tenant of the landlord. The resident moved from the property via a mutual exchange in July 2020. His tenancy at the exchanged property ended in January 2021.
  2. During early 2020, the resident reported several incidents of antisocial behaviour (ASB) from his neighbour, including noise, drug usage and concerns about drug dealing. During this time, the resident’s neighbour also raised counter-allegations of ASB, and the resident was sent a warning letter regarding his behaviour towards his neighbour. The resident applied for a mutual exchange in May 2020 as he wished to move from his property due to the ASB he was experiencing. This was completed in July 2020.
  3. The resident raised a complaint with the landlord in September 2020 and explained the following: 
    1. He was dissatisfied with the landlord’s handling of his ASB reports made against his neighbour and felt that the landlord had treated his and his neighbours reports very differently. He explained that he had provided diary sheets of the issues experienced over a three-month period but felt that these had been ignored as no noise monitoring equipment was installed and no warnings were issued to his neighbour. He added that he felt his neighbour had breached their tenancy conditions on multiple occasions and the landlord had not taken any action in relation to his reports of drug usage or dealing.
    2. He noted that the garden was overgrown when he moved into his former property, and he had found a handgun and syringes. He also stated that the shed door was not hung, he had needed to replace some fencing and gates and it had taken him three months to clear the garden. He said that he felt forced out of the property due to the ASB he experienced and requested compensation for the costs he had incurred as well as for the labour associated with the work completed as he had not been able to use the space. 
    3. He requested additional compensation due to the impact the ASB had had on his mental health. He added that to attempt to escape the ASB, he had travelled by train to London and wanted reimbursement for the tickets he had bought. He later added that he had not physically moved into the mutually exchanged property but had been told that he would need to pay four weeks rent as notice to terminate the tenancy and that he would need to pay council tax at the property. He asked the landlord to withdraw these costs.
  4. In response to the resident’s complaint, the landlord explained the following:
    1. It concluded that it had thoroughly investigated and taken appropriate action in response to his reports of ASB from his neighbour. It noted that he had been advised to contact the police in relation to his reports of drug-use and dealing. He had also been asked to complete diary sheets in November 2019, but had refused and did not want to proceed with a case at this time. It had spoken to the resident’s neighbour on 23 March 2020 and verbally warned them that playing loud music and causing a disturbance was not acceptable. It further advised them that action may be taken against their tenancy if the behaviour continued. It noted that it had informed the resident of this call and he advised that the situation had improved as a result of the landlord’s actions.
    2. It noted that Covid-19 had impacted any investigation that it was able to take as it was prohibited from entering properties or visiting his neighbour. It was also unable to install noise monitoring equipment or use professional witnesses during this time which may have helped to evidence the ASB reported. It apologised for the limited action it could take during this time, but also noted that the resident had failed to provide additional evidence in the form of audio recordings or diary sheets as asked at the time. It said that the resident had been issued a warning letter regarding his behaviour as he had admitted to verbally threatening his neighbour. However due to a lack of evidence to support his claims, it was not able to take the same action against his neighbour.
    3. In relation to his request to be refunded money he had spent on train tickets, it explained that this was a decision the resident had made, and it had not instructed or advised him to do so. As such, it would not cover the cost of these in any circumstances. It confirmed that if proven, the allegations would not have met the threshold for it to provide him with an urgent move and it did not feel it was necessary for the resident to leave the property due to the behaviour experienced. it acknowledged that the resident had needed to pay for rent and garden costs but had not been able to benefit from them, but it did not believe that this was a result of any service failings.
    4. In relation to the resident’s garden, it noted that the resident had accepted that the garden was overgrown when viewing the property and there was no evidence to show that he had reported finding a gun or syringes. It said that the resident would have had the opportunity to raise any concerns at the time but there was no evidence that he did so.
  5. The resident referred his complaint to this Service as he remained dissatisfied with the landlord’s response to his complaint. He was dissatisfied with the landlord’s handling of his complaint and the timeframe involved. He was also dissatisfied with the lack of action the landlord had taken in relation to his reports of ASB and felt that as a result, he had no other option to move from the property. 

Assessment and findings

Scope of investigation.

  1. The resident has said he considers that the issues affecting his property have impacted his mental health. The Ombudsman does not doubt the resident’s comments.  However, it is beyond the remit of this Service to decide on whether there was a direct link between the ASB experienced and the resident’s health. The resident therefore may wish to seek independent advice on making a personal injury claim if he considers that his health has been affected by any action or lack thereof by the landlord. Whilst we cannot consider the effect on health, consideration has been given to any general distress and inconvenience which the resident experienced as a result of any errors by the landlord.

The landlord’s response to the resident’s reports of antisocial behaviour (ASB)

  1. It is evident that this situation has been distressing for the resident. There remains a dispute between the resident and the landlord regarding whether the landlord responded appropriately to his reports of ASB and noise. 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.
  2. In line with the tenancy agreement, the landlord is responsible for investigating reports of ASB or nuisance made by a resident. The landlord’s ASB policy states that when it receives a report of ASB or noise nuisance from a resident it should contact the resident and gain as much information as possible about the ASB reported in order to determine whether any action can be taken. The landlord should also ask the resident to complete diary sheets in order to assess the severity and frequency of the issue reported. Following receipt of sufficient evidence to support the claim, the landlord would be expected to show that it had attempted to resolve the matter informally such as through mediation, verbal warnings or tenancy warning letters before considering legal action against a perpetrator of ASB. The landlord would not be able to take any form of informal or formal actions against a perpetrator of ASB without sufficient evidence of the alleged behaviour such as diary sheets. The landlord would also be expected to liaise with third parties such as the police where appropriate.
  3. In this case, it was evident that the landlord took reasonable steps to investigate and seek corroborative evidence in line with its obligations by asking the resident to complete diary sheets as early as November 2019 following his initial reports of ASB from his neighbour. The evidence shows that the ASB case was closed at this time as the resident did not want to provide diary sheets or proceed with the case. The evidence also shows that the landlord advised the resident to contact the police regarding his concerns about drug usage and dealing which was appropriate as these would be criminal matters, better suited for the police to investigate. There is a lack of evidence to suggest that the resident had reported these issues to the police at the time and therefore reasonable that no further joint investigation was undertaken. It also acted appropriately by informing the resident that it was unable to investigate his claim that his neighbour owed him money and gave reasonable advice to not lend money to his neighbour in the future.
  4. It is noted that in February 2020, the resident was advised to keep a diary log of incidents of ASB or nuisance. The resident has provided copies of the diary logs of ASB he completed between January and February 2020. This included reports of loud music and banging which usually occurred in the early hours of the morning. It is unclear from the evidence provided as to whether the landlord was provided with a hard copy of the diary log during this time, however, it appears that the landlord was provided with sufficient evidence following a face-to-face meeting in March 2020 as it then took steps to verbally warn the neighbour against playing loud music or causing disturbances. This was a reasonable action to take in line with its ASB policies. It may have also been helpful for the landlord to have offered mediation to both the resident and the neighbour in an attempt to resolve the ongoing neighbour dispute during this time. However, it is noted that the resident had advised that the situation had improved following the landlord’s action, and this may not have been necessary.
  5. The resident has raised concerns that he and his neighbour’s ASB cases were handled differently, in that he had been sent a warning letter regarding his behaviour, but his neighbour had not. As the resident had admitted to using threatening language against his neighbour it was not unreasonable for the landlord to send him a warning letter against his behaviour due to confirmation that the incident had occurred. It is noted that the landlord had also discussed the resident’s concerns with the neighbour, however, there is no evidence to confirm whether the neighbour had admitted to their behaviour. As such, the landlord was only able to rely on the word of the resident. It was reasonable for the landlord to verbally warn the neighbour against this type of behaviour and confirm that the situation would be monitored. As the resident had reported that the situation had improved, there is no evidence to suggest that further action was needed at the time.
  6. The landlord has reasonably explained that the impact of Covid-19 had affected its ability to enter properties, install noise monitoring equipment or use the service of a professional witness to gain additional evidence of the issues reported. This was outside of the landlord’s control and would not amount to a service failure. The landlord has acted fairly by apologising to the resident in that it was not able to take any further action and confirming that if the resident had provided additional diary sheets or audio recordings of the noise as requested at the time, it may have been able to take further action. There is no evidence to suggest that further diary sheets or audio recordings were provided, and it was therefore reasonable that no further action could be taken in view of the lack of supporting evidence from the resident and the impact of Covid-19 at the time. 

The landlord’s response to the resident’s request for reimbursement of costs related to his garden, travel, rent and council tax.

  1. In the resident’s correspondence, he has advised that the garden of the property was in a poor condition at the beginning of his tenancy in 2018 and wanted financial compensation for the costs he had incurred whilst maintaining the garden and fencing, which amounted to at least £423. He added that he had found a gun and syringes, the door to the shed was hanging off its hinges and he had spent approximately three months clearing the space.
  2. As there is no evidence to suggest that the resident’s concerns about the garden or fencing were reported to the landlord at the time, the landlord did not have the opportunity to investigate the matter or carry out an inspection before the resident completed the work himself. In line with the tenancy agreement, the resident is responsible for the upkeep of the garden and boundary fencing of the property. The resident would also be responsible for the upkeep of any sheds or outhouses. As the resident is responsible for the upkeep of the garden and the boundary fencing in line with his tenancy agreement, and he had not raised concerns or asked the landlord to act at the time, he would be liable for any costs he had spent improving it. Furthermore, there is no evidence to suggest that the landlord had agreed to pay for the costs prior to the resident undertaking the garden clearing or fence replacement. As such, it would not be obliged to reimburse the resident retrospectively.
  3. in his communication with the landlord, the resident requested reimbursement for travel costs he had incurred by travelling to London as he felt he was unable to stay in the property as a result of the ASB by his neighbour. The landlord’s explanation as to why it would not cover these costs was reasonable and there is no evidence to suggest that the resident was advised to leave the property by the landlord as a result of the ASB he experienced. Furthermore, there is no evidence to suggest that the resident had informed the landlord of the time periods he was away from the property or that it had agreed to these costs in advance. Whilst it is noted that the resident felt he had needed to take this action as a result of the ASB experienced, there is no evidence to suggest that the landlord would be responsible for these costs or obliged to reimburse him.
  4. As part of his communication with the landlord, the resident also asked that the four weeks’ notice he needed to give to end his tenancy and the council tax payable during this time was waived. In line with the resident’s tenancy agreement, the resident is responsible for giving at least four weeks written notice if he wanted to terminate the tenancy.  Whilst it is noted that the resident has advised that he did not physically move into the property, this appears to be by choice as there is no evidence to suggest that it was uninhabitable or there were any repair issues outstanding for which the landlord would be responsible for. As such, no financial compensation is warranted as the property was available for the resident to use and he was responsible for paying rent as agreed when he completed the mutual exchange, regardless of whether he was using the property or not. The landlord’s decision not to refund the resident or withdraw its request for at least four weeks’ notice was reasonable in the circumstances as the resident had agreed to this when he accepted the property and signed the tenancy agreement.
  5. Under Paragraph 39(m) of the Housing Ombudsman Scheme, the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, fall properly within the jurisdiction of another Ombudsman, regulator, or complaints-handling body. The Ombudsman is only able to look at complaints about a local authority where the complaint relates to its actions as a social landlord. As such, we are unable to consider the resident’s concerns about his liability to pay council tax for the property. This is because council tax is payable by many individuals and is not specific to the landlord’s role as a social landlord. The Local Government and Social Care Ombudsman (LGSCO) is able to consider complaints about local authority’s activities (aside from their responsibilities as social landlords), including council tax. As such, the resident would be advised to approach the LGSCO if he has concerns about the council tax payable during this period.

The landlord’s handling of the associated complaint.

  1. The landlord’s complaints policy confirms that it has a two-stage formal complaints process. At each stage, the landlord should issue a response within 20 working days. if, at any stage, there is likely to be a delay, the landlord should contact the resident, explain the reasons for the delay and provide a response timescale. The policy confirms that the complaints process would not apply in certain circumstances, including where there is an ongoing insurance claim against the landlord which would be dealt with as a separate matter. 
  2. The resident initially asked for a complaint to be raised on 25 September 2020. Following this, the landlord had attempted to call the resident to discuss the complaint but had not been able to get through, the resident also attempted to call the landlord back, however, there was no successful communication regarding the complaint until 20 November 2020. It may have been helpful for the landlord to have used an alternative method of contact following several missed calls to prevent the delay at this stage.  In November 2020, the resident was advised that he could not raise a complaint and a claim for compensation at the same time as the latter would need to be raised through the landlord’s insurers. As such, the resident agreed to close the complaint, but reiterated that he would have pursued both options had this been permitted.
  3. It is the Ombudsman’s view that a landlord should raise a complaint in the first instance where a resident says that they are dissatisfied with the service provided. It may then decide to refer a resident to its insurer in view of a compensation claim as part of its complaint response, although it should still respond to the complaint formally to explain this and further explain how the resident may approach the Ombudsman to decide on whether it was reasonable for it to refer the matter to its insurer. As the resident had clearly expressed dissatisfaction with the service received, it would have been appropriate for the landlord to have raised a complaint following his request in September 2020 and conducted an internal investigation as to whether the claim for compensation was better suited to its insurance team. As such, the landlord failed to appropriately acknowledge and log the resident’s initial complaint, which meant that the overall timeframe of the complaint was prolonged.
  4. The resident raised a complaint again on 21 December 2020 and the landlord issued its stage one complaint response on 5 February 2021, which was 11 working days outside of its 20-working day timescale at stage one. The landlord does not appear to have acknowledged or apologised to the resident for this delay which was likely to have caused inconvenience. In addition, the response was sent via letter to the resident’s former address, and he did not receive this until 18 February 2021 via email. Whilst the landlord has explained that this was because his address was listed on the initial complaint form, the evidence shows that the landlord was aware that the resident had not moved into his mutually exchanged property and had ended his tenancy there in January 2021. As such, it would have been appropriate for the landlord to have identified this and ensured that it had the correct forwarding address for the resident. This was likely to have caused inconvenience to the resident who had needed to follow-up on the matter in order to gain its response.
  5. In addition, whilst it was reasonable for the landlord to liaise with its insurance team internally, it would have had the opportunity to have done this at an earlier date so that it could provide the correct advice and a response to the resident within a timely manner. Within the stage one response, the landlord included information from its insurance team who stated that the compensation claim was better suited to be dealt with under its complaints process. It is unclear from the evidence provided as to why the landlord did not follow this advice and issue a response to the resident’s request for compensation within its stage one complaint response. As such, the landlord has not demonstrated that it had fully investigated the resident’s requests at this stage which is likely to have, in part, prompted an escalation and caused inconvenience to the resident. 
  6. The resident asked for his complaint to be escalated on 10 March 2021. The landlord issued its stage two complaint response on 14 May 2021, which was 25 working days outside of its 20-working day timescale for stage two complaints. There is no evidence to suggest that the landlord had adequately informed the resident of the delay or provided a new complaint response timescale in order to manage his expectations. In addition, the landlord has not taken steps to acknowledge or apologise for this delay in its response to the resident which is likely to have caused additional inconvenience.
  7. In view of the service failures identified, the landlord should pay the resident £250 compensation in recognition of the inconvenience caused by its poor complaint handling. This amount is in line with the Ombudsman’s own remedies guidance which states that amounts in this range are proportionate where the Ombudsman has found considerable service failure, but there may be no permanent impact on the resident. Examples include a resident needing to repeatedly chase responses, necessitating in an unreasonable level of involvement by that resident. 

Determination

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to the resident’s reports of antisocial behaviour (ASB).
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to the resident’s request for reimbursement of costs related to his garden, travel, rent and council tax.
  3. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration (service failure) by the landlord in respect of its handling of the associated complaint.

Orders

  1. The Ombudsman orders that the following actions are taken within four weeks:
    1. The landlord is to pay the resident £250 in recognition of the inconvenience caused by its poor complaint handling.