Dudley Metropolitan Borough Council (202205365)

REPORT

COMPLAINT 202205365

Dudley Metropolitan Borough Council

31 July 2023

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s handling of anti-social behaviour by a neighbour, which includes:
1. threatening and physically abusive behaviour towards her and her family;
2. sending handwritten notes;
3. noise nuisance (loud music) at night; and
4. the misuse of the communal area.
The resident has also complained about the landlord’s handling of:
1. the associated complaints; and
2. the housing transfer application.

Background

The resident occupies the property under a secure tenancy which commenced on 20 March 2015. The property is a two-bedroom flat in an upper-rise building.
The resident states she has been reporting anti-social behaviour from her neighbour since around June 2015. However, there is no evidence to support this. The available evidence shows that the resident initially raised concerns about anti-social behaviour on 19 April 2019. The resident reported that she was physically assaulted.
Between April 2019 and July 2022, the resident made various reports to the landlord about her neighbour for the issues raised at paragraph 1 (above).
On 1 October 2021, the resident expressed her dissatisfaction with the landlord about how it had dealt with her reports. The landlord dealt with this as a service request.
On 8 February 2022, after the resident is supported by her local councillor, the landlord reconsidered the issues raised on 1 October 2021 to be a formal complaint. The landlord did not formally respond to the resident until 18 November 2022. The response set out that the resident had, at that time, only recently started to complain about her neighbour again and that these were low-level incidents. It stated that she had been allocated an ASB officer to work with and offered mediation to her.

Assessment and findings

Jurisdiction

The Housing Ombudsman is unable to investigate the complaint about the housing transfer. This is because, under 41(d) of the Scheme, the Housing Ombudsman does not have jurisdiction to investigate complaints about the allocation of council housing. This is because the Ombudsman may only investigate complaints about councils in respect of their management of social housing and leases. The resident has recourse to the Local Government and Social Care Ombudsman to complain about rehousing and priority.

How the landlord is required to respond to reports of ASB

The Ombudsman’s role in anti-social behaviour cases is to decide if the landlord followed its policies and procedures and fairly appraised the reports made to it. The Ombudsman expects landlords to make appropriate decisions based on a reasonable investigation and evidence gathering.
The landlord’s anti-social behaviour policy details that it will respond to reports of anti-social behaviour by taking “a proportionate and reasonable approach when using legal and non-legal action.” It is required to investigate by “gathering evidence and addressing concerns swiftly and effectively to maximise the resolution as early as possible.” On receiving a report, the landlord must provide initial advice to the victim, and make contact within 1 working day in violence-related cases. In all other instances, it must make contact within 5 working days.

Intimidating, threatening and physically abusive behaviour towards the resident and her family

The resident first reported she was verbally and physically assaulted by her neighbour on 19 April 2019. The resident said her neighbour swore at her and pushed her into the resident’s flat. She then hit the resident’s head against the wall. The resident pushed the neighbour out of the flat. The resident also reported an incident of verbal abuse towards her family member where he was sworn at. The landlord responded and took the following steps:
1. it interviewed both parties;
2. it liaised with the police;
3. it conducted a vulnerability assessment of the resident; and
4. it issued a breach of tenancy letter to the neighbour on 21 May 2019.
On 3 June 2019, the resident’s ASB case was closed as there had been no further incidents with the neighbour. There is no evidence to suggest the landlord could have taken further action in respect of this incident. Having considered all the evidence, the Ombudsman considers that the landlord responded in line with its anti-social behaviour policy.
The resident made further reports about the behaviour of her neighbour both inside the dwelling and within the local area. The case was closed because there was not enough evidence to take any further action. The landlord responded by:
1. interviewing the resident and the neighbour to discuss the allegations and any counter-allegations;
2. making internal logs of the reports and discussions held with the parties;
3. discussing the reports with the management team;
4. issuing diary sheets to the resident;
5. issuing letters appealing for witnesses;
6. liaising with public bodies such as the police and mental health teams;
7. conducting a vulnerability assessment of the resident;
8. issuing letters to the neighbour for breach of tenancy conditions;
9. liaising with the housing options team to support the resident with rehousing; and
10. offering mediation to the parties.
Whilst it is accepted the behaviour complained of will have been distressing and upsetting for the resident, there is no evidence that the landlord would have been successful had it attempted to take more formal legal measures. The courts expect landlords to try non-legal measures in the first instance before reverting to court proceedings.

Handwritten notes

The resident made reports to the landlord on 12 March 2020, 5 March 2021, 22 July 2021 and 8 August 2021, that she had received notes from her neighbour that were derogatory in nature and called her various names. The notes were left in communal areas, outside her door as well as posted through her door. The resident stated this left her feeling anxious and upset.
The landlord took the following steps in response to the reports:
1. it acknowledged the letters as a nuisance;
2. it discussed the case with management on the best way to deal with the incidents;
3. after those discussions it issued diary sheets to record and monitor further incidents as it needed to gather more evidence before it could do anything;
4. it liaised with mental health services; and
5. it said it would review the case following receipt of the diary sheets.
Based on the evidence, it does not appear that this incident was taken further by the resident at the time and diary sheets were not given back to the landlord. The landlord did not follow up with the resident regarding the diary sheets. It would have been reasonable for the landlord to have contacted the resident to ensure that no further incidents had occurred.
The landlord responded to the second report by:
1. sending the neighbour an advisory letter on 17 March 2021;
2. providing the resident with an anti-social behaviour pack including of diary sheets so that incidents could be recorded and monitored;
3. flagging the case for review; and
4. attempting to contact the neighbour on 30 June 2021 but was unable to. It does not appear there were any further attempts to contact the neighbour on that occasion.
The resident initially said she would be open to mediation and communicated this to the landlord on 24 May 2021. The resident requested an update from the landlord on 25 June 2021. It responded on 15 July 2021. By this time, the resident had said they were no longer prepared to engage in mediation because of the developing nature of the anti-social behaviour. Had the landlord engaged in mediation and followed up sooner, this could have been a viable option. The landlord is at fault for failing to have moved forward with mediation.
The landlord responded to the third report by seeking to rediscuss mediation with the parties, however, both parties declined this. On 9 September 2021, the case was discussed internally and closed on the basis that there was a lack of evidence and that both residents refused to participate in mediation. It would have been reasonable and proportionate for the landlord to have considered alternative means to tackle the issues such as an acceptable behaviour contract. It is important to note that sending the notes could have amounted to harassment based on their content. The landlord was at fault for closing the case.
Although the Ombudsman acknowledges that on the balance of probabilities the matter required further evidence to progress, it does not appear that the landlord facilitated or further explored the option of mediation at the point the resident was willing to partake in it. The Ombudsman considers this to be a missed opportunity for the landlord to actively intervene in the matter and a service failure.
Additionally, it took 37 working days to respond to the resident and keep her informed of the outcome of the case review on 24 May 2021. This was an unreasonable delay that would have caused unnecessary distress and inconvenience to the resident who had shared with the landlord that the anti-social behaviour was affecting her mental health.

Misuse of the communal area

The resident reported on 12 March 2020, 10 June 2021, and 12 July 2022 that her neighbour was allegedly misusing the communal area by placing bin bags in the communal hallways with faeces in them.
The landlord responded to the reports by:
1. calling the resident on 17 March 2020;
2. formally acknowledging the report of nuisance;
3. issuing diary sheets to record and monitor further incidents;
4. liaising with waste enforcement on 10 June 2021;
5. sending a letter to the neighbour on 19 July 2021; and
6. frequent monitoring of the communal block.
The Ombudsman considers that it would have been reasonable to contact the neighbour directly at an earlier stage of each report to proactively resolve this issue. Having had regard to the case history the landlord could also have engaged further with non-legal action such as writing to the neighbour or issuing an initial warning with regards to the report on 12 March 2020 which may have prevented the issue from reoccurring. There is also a lack of evidence of the landlord’s actions following the report made to it on 12 July 2022. This is a failure in record keeping.

Noise Complaints (loud music at night)

The resident reported noise complaints on various occasions. The landlord responded by requesting she monitor the noise levels over a period and to complete and return issued diary sheets. This was to build evidence for future action. There is no evidence that any diary sheets were returned to the landlord regarding this issue.
When the resident reported noise issues to the out-of-hours service, the landlord inspected the property and recorded that the noise level did not constitute a statutory nuisance. This is because it could not be heard by the resident inside her flat. The resident also reported noise did not impact her directly and that she was more concerned about those who may be direct neighbours. The landlord confirmed there were no other reports from other residents and asked the resident to only report issues that directly impacted her.

The landlords handling of the subsequent complaint

The landlord’s complaint policy states:

Clause 3

“a complaint is a written or verbal expression of dissatisfaction about a council service, within 12 months of an issue arising, that requires a response. A complaint may relate to: inadequate standard of service” and “a complaint is NOT an initial request for service or repair”

Clause 4

“deal with customer complaints courteously, openly, and fairly” and “provide the customer with a response within 20 working days, or inform the customer that we need more time to investigate if the complaint is complex.”

Although the landlord’s complaints policy is in contravention of the Code, the Ombudsman notes that the landlord in its most recent self-assessment has addressed this as a change they should have implemented from 1 June 2023. However, it has not updated its corporate complaints policy at the time this report was written.
On 1 October 2021, the resident made a complaint to her landlord through its online webpage about her housing register application and how it had dealt with her reports regarding her neighbour’s behaviour. The resident and her local councillor referred to this contact specifically as a complaint in all correspondence relating to it.
The resident chased the landlord for a response to her complaint four times between December 2021 and January 2022. The resident’s local councillor also pursued the landlord for a response on three occasions between November 2021 and February 2022. The landlord provided a formal response to the housing register issues on 30 May 2022; however, it did not formally respond to the complaint about the anti-social behaviour until 18 November 2022.
It would have been reasonable and fair for the landlord to have treated the resident’s complaint, as a whole, to have fallen within the definition of a complaint, as defined in its complaint policy and the Code. This is particularly the case, considering it had dealt with the other grounds of complaint via its complaint procedure.
There is no evidence to show that the landlord explained it had chosen to deal with the complaint about its handling of the anti-social behaviour as a service request as opposed to a complaint. The landlord hadample opportunity to fully explain this from when the complaint was raised. This is despite the external correspondence highlighting the importance of a final response being received by the resident to enable her to exercise further recourse options available to her through this Service, as early as November 2021.
The landlord behaved unfairly in this instance and circumvented its complaints policy without justification. Had the landlord elected to take the entire complaint through its complaint procedure at that time, then her complaint remained formally unanswered for an extended period.
On 8 February 2022, after the resident was supported by her local councillor, the landlord reconsidered the issues raised on 1 October 2021 to be a formal complaint. Based on the available evidence, the landlord did not make clear to the resident its change of approach or her rights as part of that process, and it did not formally respond to the resident until 18 November 2022. This is 287 working days after the complaint was made by the resident, which is a grave failure to follow the timeframes set in its complaints policy. The Ombudsman considers this to be a serious failure to follow its policy which unreasonably and unnecessarily delayed the resident from escalating her complaint to this service.
In its complaint response dated 18 November 2022 not address, the landlord did not apologise for, or explain why there had been a significant delay in providing its response. Its explanations on the action it had taken and why should have been clearer.
Based on the totality of the evidence, the landlord was responsible for maladministration in its handling of the complaint.

Determination

In accordance with the paragraph 52 of the Scheme, there was a service failure by the landlord in respect of the handling of the resident’s reports of anti-social behaviour.
In accordance with paragraph 52 of the Scheme, there was maladministration in respect of the landlord’s handling of the resident’s subsequent complaint.

Orders and recommendations

Orders

The Ombudsman orders the landlord to take the following steps within 28 days of the date of this determination:
1. The landlord must provide a written apology to the resident for its handling of the anti-social behaviour and poor complaint handling.
2. The landlord must pay the resident £600 compensation, made up as follows:
  1. £350 for the service failures identified in its handling of the anti-social behaviour.
  2. £250 for the maladministration identified in the complaint handling.
3. The landlord is to publish the new corporate complaints policy on its website, which is detailed as an alteration within its 2023 self-assessment as set to be active from 1 June 2023.
4. The landlord is to publish its new anti-social behaviour policy as well as guidance on its website which is currently dated as 2016 and was due for its review in 2019.
The landlord must provide evidence of compliance with these orders within 28 days of the date of this determination.

Recommendations

The Ombudsman recommends that the landlord:
1. consider offering the resident the option of engaging the community trigger function should the case meet the threshold.
2. conduct a review of this case to identify learning and improve its working practices about complaint handling. This review should be completed in accordance with the Ombudsman’s Complaint Handling Code and specifically address:
  1. ensuring complaints are fully investigated and responded to through its formal complaint procedure; and
  2. ensuring colleagues are aware of the timeframes they are required to adhere to.