East Devon District Council (202234448)

REPORT

COMPLAINT 202234448

East Devon District Council

24 July 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 complaint is about the landlord’s handling of the resident’s reports about:
1. Her dispute with her neighbour.
2. The conduct of the landlord’s staff and her request to deal with a female officer.

Background

The resident is secure tenant of the landlord, which is a local authority. She occupies a 3-bedroom semi-detached property. Both the resident and her neighbour at the adjoining property have reported antisocial behaviour (ASB) by each other, dating back to 2019.
In January 2022 the resident contacted the landlord and reported that her neighbour’s garden, which borders hers, was infested with rats, covered in dog faeces, and presented a health hazard. She alleged harassment by her neighbour which had made her consider suicide.
Both parties continued to report ASB by one another, with the situation escalating at the end of April 2022, when the resident caused criminal damage to the neighbour’s property and car. It was around this time that the resident’s son passed away, impacting upon her mental health. She explained that she had retaliated in response to taunts from her neighbour about her deceased son. The landlord issued formal warnings to the resident and asked both parties to sign an ‘acceptable behaviour contract’ (ABC). It is deduced from the evidence that both parties refused to sign this.
The resident’s housing officer called her on 14 June 2022 to, again, ask that she sign the ABC. The resident complained to the landlord the following day, alleging that the officer was rude and lacked empathy. She said the call had left her feeling distressed and needing to call the out-of-hours crisis team for support. She said her requests to have no further contact from the officer had been ignored by his manager and she asked that she be allocated a female officer. She also felt her concerns about the neighbour’s behaviour had been dismissed.
The landlord responded on 22 July 2022. It said officers had followed procedures and tried to work with the resident to see if external support could be provided, but she had not engaged. It confirmed that the housing officer would continue to manage her case as there was no evidence he had acted inappropriately. It explained that any action in relation to the neighbour’s garden had been put on hold until the situation had calmed but it would inspect and address issues relating to this with the neighbour. The resident was also advised to refrain from perpetrating ASB.
The resident felt the landlord had not answered her concerns and escalated her complaint on 26 July 2022. She submitted that it had not approached other neighbours as witnesses, not met with her in-person, and ignored her request for a female worker. She also felt she had been wrongly deemed the instigator in the dispute and, instead of providing her with support, the landlord had issued warnings to her. She described how the situation had impacted her mental health, with her feeling unable to leave the property.
The landlord issued its stage 2 response on 6 September 2022. It said it had taken appropriate action where there had been evidence of ASB. It explained that officers had made enquiries about the resident’s mental health to assist in signposting her to relevant services. It also advised the resident to avoid further altercations.
It is understood that allegations of ASB from both parties continued following the stage 2 response, but the neighbour has since moved from their property.

Assessment and findings

Scope of Investigation

In referring her complaint to this Service, the resident raised additional concerns about the landlord’s handling of the dispute following its stage 2 complaint response. This included its decision to issue her with an ASB order and the retraction of its offer to re-house her. She also expressed dissatisfaction with the support it offered around the under-occupancy charge.
The Ombudsman can only consider complaints which have been brought to the attention of the landlord as a formal complaint and exhausted it complaints process (reflected at paragraph 42(a) of the Scheme). This is so we can be sure the landlord has had a reasonable opportunity to resolve the issues internally before we intervene. As a result, this Service is unable to investigate the landlord’s actions regarding the additional issues raised by the resident after its final complaint response. If the resident remains dissatisfied with the landlord’s handling of these matters, she should make a separate complaint in that regard.

The landlord’s handling of the resident’s reports about her dispute with her neighbour

In cases of ASB, the role of the Ombudsman is to investigate how a landlord handled any reports it received and to determine if it acted in accordance with its policies and procedures, taking into consideration the issues being reported.
The landlord has an ASB policy which sets out its definition of ASB. This aligns with the definition as detailed in the Antisocial Behaviour, Crime and Policing Act 2014, as ‘conduct that has caused or is likely to cause harassment, alarm or distress to any person’ and ‘of causing housing-related nuisance or annoyance’.
The resident’s initial report of harassment by her neighbour and the state of the neighbour’s garden constituted potential ASB and should have been considered in line with the policy. The policy states that, upon receipt of a report of ASB, it will record the complaint, acknowledge and respond to it, interview the resident, develop an action plan in consultation with them, and investigate the problem.
Full details of the landlord’s response to the resident’s initial report of ASB are not known. It has not provided copies of correspondence, call logs or evidence of the action it took at this time. Upon this initial report, the landlord should have contacted the resident, established the full circumstances, and completed a risk assessment.
The resident referenced that she had reported matters to the police so the Ombudsman would expect the landlord to have made enquiries of them. It should also have created an action plan to address the concerns and provide accountability and transparency with regards any intervention. The landlord confirmed that it did not devise an action plan with the resident at any time throughout its handling of the case and there is no evidence that risk assessments were completed.
However, it provided a ‘summary of events’ to this Service indicating that it took some appropriate action. It said it opened an ASB case and offered mediation to both parties on 10 February 2022. It also reported that it contacted the neighbour about the condition of the garden on 15 February 2022 but gave no further details of this discussion (and no supporting evidence has been provided to this Service).
The landlord’s policy recommends mediation as an early intervention in cases where parties are in dispute. Although the full circumstances are not known, including any counter-allegations made by the neighbour, it is understood that there was tension on both sides, and that this was, therefore, an appropriate and targeted measure.
The resident had expressed concerns about pests and odours from the neighbour’s property, so it was appropriate that the landlord contacted the neighbour to discuss this. However, by its own admission, the landlord appears to have taken no further action beyond this call, and there is no evidence the situation improved for the resident. In its stage 2 response the landlord said it had cancelled an inspection of the neighbour’s garden due to escalating tensions but it has provided no evidence one was conducted prior to its final response. It is not apparent why escalating tensions prevented it from acting to support or enforce the neighbour to maintain the garden, and this was to the detriment of the resident who had to endure ongoing, unpleasant conditions.
More significantly, there is no evidence that the landlord responded to the resident’s report that the situation had made her feel suicidal. In such circumstances, the Ombudsman would expect the landlord to contact the resident and learn more about their wellbeing and needs. The landlord has given no indication that it took this report seriously, or that it offered support or signposted the resident accordingly.
The landlord has since implemented ASB procedures which state that the case officer should contact the resident as soon as possible where there is a safeguarding concern or risk of significant harm. They also specify that a risk assessment should be completed following a report of ASB, to assess the resident’s vulnerability and risk, and to provide reasons for actions that will be taken. The landlord should ensure that staff are aware of these procedures and act accordingly.
On 6 April 2022, the resident’s housing officer informed her that he wanted both her and the neighbour to sign an ABC. This came in response to an email from the resident reporting that her neighbour was illegally recording her via her doorbell camera. The landlord’s internal correspondence also references a prior incident in which the resident is alleged to have sprayed weed killer on the neighbour’s garden and the use of social media by both parties to antagonise one another. Further details of these incidents are unknown, including when they occurred.
Given both parties were considered to be fuelling the dispute, the request that they sign an ABC was appropriate. The landlord’s policy specifies this as a potential intervention where there is evidence of ASB, and it serves as an alternative or precursor to legal action. The policy also states that the landlord will work with relevant partner agencies. The records show the housing officer appropriately consulted the police, who had received reports from both parties, in deciding upon this course of action.
It was to the resident’s understandable frustration, that in proposing the ABC, the officer did not acknowledge the concerns she had expressed about her neighbour recording her and noted that counter-allegations had been made about her. The officer acted reasonably and transparently in referencing the wider context. He should have assured her that her concerns would be logged, and the matter investigated. However, he said he would call her the following day, which provided an opportunity to discuss the matter further, and the records indicate his manager attempted to do so.
In its summary of events, the landlord outlined several reports of ASB made by the neighbour about the resident throughout April 2022, including allegations that she had caused criminal damage. The landlord responded by issuing a ‘Breach of Tenancy’ (BOT) notice to the resident on 29 April 2022. It was understandable that the landlord needed to send a message that this behaviour was not appropriate and the BOT notice reflected the seriousness with which it viewed the situation. However, the resident felt the landlord had not considered her circumstances and the impact of the death of her son. While in the notice the landlord acknowledged ‘emotions were running high’, there was no evidence it offered support alongside.
The landlord issued another BOT to the resident on 10 May 2022, following a further incident in which she was alleged to have made unpleasant comments and gestures to her neighbour. Within the BOT, the landlord said it understood she was experiencing difficulties and it had tried to discuss these with her. In its complaint response it reiterated that it had tried to work with her to offer external support but she had not engaged. The only evidence that support was offered was much later, during a visit to the resident on 2 September 2022, when the landlord said it could coordinate bereavement counselling. It was a failing of the landlord that it either did not offer support at an earlier opportunity, or did not keep records to demonstrate this.
The resident provided the landlord with an audio recording in mid-June 2022, containing inflammatory words used by the neighbour about the resident’s son. In response, the landlord said it had warned the neighbour about her behaviour and asked her again to sign the ABC. The resident felt the landlord had not taken sufficient action in relation to what she saw as an escalation. However, in taking these measures, the landlord communicated to the neighbour that her behaviour was not acceptable, which was reasonable.
The landlord also asked the resident to meet with it at this time, to discuss the terms of the ABC and to sign it. It is not clear whether the resident attended this formal meeting, as there was a breakdown in the relationship between her and the housing officer following this discussion. The resident had previously asked for a meeting with the officer and his manager in April 2022, but this did not take place. The resident felt this request had been ignored and her grievance at not meeting officers face-to-face formed part of her complaint. Had the landlord met with the resident in-person previously, on a more informal footing, this might have demonstrated that it was listening to her and established a more collaborative working relationship. It could also have served as an opportunity to communicate expectations about her behaviour at an earlier juncture and prior to further escalation.
The housing officer’s manager took over the case and visited the resident on 2 September 2022. During this meeting the resident was issued with a further BOT for incidents on 3 and 4 August 2022, the details of which are unknown. Given the resident complained that the landlord had not met with her, it acted appropriately, albeit late, in doing so and showed support in offering bereavement counselling at this juncture.
The records show that the resident emailed the landlord on 4 July 2022 attaching pictures of social media posts and requesting that the landlord ask the neighbour to stop posting provocative comments. The landlord has not provided evidence of a reply. In its complaint response it said it would not intervene in such circumstances as these were personal and should be reported to the police or social media organisations. While this was appropriate advice, the Ombudsman is not aware of any reason why a warning could not be given to the neighbour. However, it is noted that the landlord considered both parties responsible for antagonising one another on social media and the ABC for both included a warning to refrain from doing so.
The resident also complained that the landlord had not spoken to her neighbours and ignored copies of statements she had sent to it, written by her neighbours. This Service has not seen these, but it is understood that they corroborated the resident’s reports of ASB. The landlord questioned the impartiality of the other neighbours based on the statements as the reports were sent to it via the resident. While its position was reasonable, it could have communicated this to the resident sooner. The resident sent the statements on 30 June 2022, but it was not until the final complaint response, over 2 months later, that it said it could not consider them as evidence.
In its complaint response the landlord acknowledged that not all the resident’s emails had been responded to but said that replies were sent where needed. This Service has not seen a complaint made by the resident with regards its failure to reply to emails, and the indication is that not all correspondence has been provided to this investigation, so it is difficult to comment in any detail. However, if the landlord did not have the capacity to respond to emails, it should have managed the resident’s expectations. It could have agreed to regular check-ins to establish any new concerns or to review any action that had been taken. This is good practice in dealing with ASB cases, and is typically established in an action plan, which it failed to implement.
In its final response the landlord maintained that it had acted according to policy in its handling of the resident’s reports of ASB. It said it had received little evidence of ASB, but where it had, it had taken appropriate action with informal and formal warnings issued to the neighbour. While it was reasonable that the landlord required evidence, it could have provided advice to the resident in collating this, for example through diary sheets or audio recordings. It did not follow policy in failing to devise and implement action plans outlining the steps to be taken and providing an opportunity for check-in and review. It also failed to take any action in relation to the neighbour’s garden, the condition of which was of valid and clear concern to the resident.
The landlord could have gone further in demonstrating that it took the resident’s concerns seriously by meeting with her sooner and being clearer about what action it could take in response to her reports about the doorbell and the witness statements. It also failed to show that it acted appropriately in offering and co-ordinating support for the resident with regards to her mental health, with no evidence that it acted upon her reports that she was suicidal.
The Ombudsman acknowledges that the resident felt the landlord had unfairly deemed her the instigator in the dispute. Cases in which allegations and counter-allegations are made can be complex, with officers playing a dual role in considering a resident as both a victim and alleged perpetrator. The actions taken by the landlord with regards the warnings it issued to the resident were based on reports and evidence of ASB and it is seen to have acted in accordance with its policy in issuing these.
However, overall, there were failings in its handling of the dispute which amount to maladministration. The landlord provided a copy of its ASB procedures which have since been implemented. These are comprehensive and outline clear and specific steps that should be taken in handling reports of ASB, including measures which were absent in this case. For example, in conducting risk assessments and action plans, establishing that information should be logged, and making enquires and referrals for support prior to asking a resident to sign a contract. These procedures should be reviewed by all staff responsible for dealing with ASB. The landlord should also pay the resident £200 compensation for the distress caused by failings in its handling of her reports.
As part of this investigation, the landlord was asked to provide evidence relevant to the resident’s complaint. While it provided copies of emails, notices, and a summary of events, this did not include full details of the actions it took. It is vital that landlords keep clear, accurate and easily accessible records to provide an audit trail, without which we may not be able to conclude that an action took place or that the landlord followed its own policies and procedures.
In this case the investigation has been able to reach a determination based on the information received. However, the omissions indicate poor knowledge and information management by the landlord and it is therefore recommended to review the Ombudsman’s Spotlight report on Knowledge and Information Management (KIM) to address these failings going forward.

Handling of reports about the conduct of staff and request for female caseworker

The resident complained to the landlord about the conduct of its staff members and its lack of empathy, which centred on a discussion she had with her housing officer on 15 June 2022. The resident was particularly offended by the officer forgetting the name of her son. When challenged on this she reported that he said this was ‘neither here nor there’. She was also aggrieved by his request that she did not ‘regurgitate’ previous incidents.
The landlord provided notes of this conversation, in which the officer acknowledged he asked the resident not to cover the history of the dispute, noting the purpose of his call was to see if she would be willing to meet with him and sign the ABC. He acknowledged that he had forgotten the name of her son, but there was no record that he had told the resident he considered this to be irrelevant.
Unfortunately, the call was not recorded and it is, therefore, difficult to fully understand the specifics of what was said and the tone of the officer. The resident contested that the landlord’s notes of the conversation provided an accurate account, but the Ombudsman cannot verify this.
From the evidence provided, the indication is that the officer was frank and challenged the resident. It was the officer’s responsibility to investigate and respond to reports of ASB by both parties, which included holding the resident accountable for her actions, and it is accepted that this necessitated difficult conversations with her. It is also noted that the officer said he sympathised with the resident for the loss of her son and assured her that a strong warning had been given to the neighbour for the inflammatory comments she had made. In this respect the officer is considered to have acted reasonably and demonstrated balance.
While there is no evidence that the officer was overtly rude, the resident’s distress at him forgetting the name of her son is understandable. Given this had caused clear upset, it would have been appropriate for the officer to have apologised, but there is no evidence he did. Nor was an apology made within the complaint response.
During the conversation in question, the officer said he explained to the resident that he had asked for copies of records relating to her mental health to understand any impact on her behaviour, but she had not provided these. In her complaint the resident said comments had been made about her mental health or lack thereof. In her escalation request she explained that she had been asked by the officer to prove her mental illness and was told that, regardless, it was no excuse for her behaviour.
While it was relevant for the officer to enquire about and understand the wider context impacting the resident’s behaviour, this conversation should have been approached sensitively and, by the resident’s account, it was not. In its response the landlord said she was asked questions about the state of her mental health so that the officer could signpost her to relevant services, but this was not the resident’s understanding and nor do the call notes suggest support was offered at this time.
The resident’s complaint evidenced a breakdown in the relationship between her and the officer. She said she had previously spoken to the officer’s manager and requested that she no longer deal with the officer, but this had been ignored and she had since received emails and calls from him on his manager’s request.
This Service has seen no evidence of the resident’s prior request to this effect, but it is not disputed that the landlord was reluctant to allocate a new officer. In its initial response to the complaint, it said that both the officer and his manager would remain on the case as there was no evidence of inappropriate conduct. In its final response, it said the manager had taken over because of the resident’s dissatisfaction with her officer. Ideally it would have done so sooner, to facilitate the resident’s engagement, but the Ombudsman is unaware of the landlord’s resources and ability to do so.
While the landlord ultimately reallocated ownership of the case, the officer was replaced by his male manager. In her initial complaint, the resident said the tone and language used by the officer had reminded her of a previous abuser and asked to deal with a female instead. She reiterated this request when escalating her complaint. Again, it is appreciated that a landlord has finite resources, and it may not have been appropriate, or even possible, for it to facilitate this. However, the landlord failed to show that it had considered her circumstances and the request, or to respond to her on this point. This caused the resident frustration, undermined her trust in the landlord, and did not aid its effort to engage her in addressing the issues.
Overall, the Ombudsman finds maladministration in the way the landlord handled aspects of its communication with the resident. The officer should have apologised for any offence caused by forgetting the name of the resident’s deceased son and, even if it was unable to facilitate the resident’s requests for a female worker, it should have responded to the request. For these reasons it should compensate the resident £150 for the distress caused.
While there is an absence of evidence that the officer made derogatory comments about the resident’s mental health, it is recognised that this was her experience. Its staff are therefore recommended to review the Ombudsman’s Spotlight report on Attitudes, Respect and Rights.

Determination

In accordance with paragraph 52 of the Scheme there was maladministration in the landlord’s handling of the resident’s reports about:
1. Her dispute with her neighbour.
2. The conduct of the landlord’s staff and her request to deal with a female officer.

Orders and recommendations

Orders

Within 4 weeks of this report the landlord is ordered to:
1. Pay the resident £350 compensation, comprised of:
  1. £200 for distress caused by failings in its handling of the dispute
  2. £150 for failing to consider and respond to her request for a female worker and to apologise for any offence caused.
2. Write a letter of apology to the resident for the failings identified in this report.
3. Ensure staff are familiar with the ASB procedures and routinely devise actions plans, risk assess and refer vulnerable residents for appropriate support. The landlord should update the Ombudsman confirming the actions it has taken in this regard.

Recommendations

It is recommended that the landlord reviews this Service’s:
1. Spotlight report on Knowledge and Information Management (KIM) and self-assess against its recommendations. Going forward it should ensure that complete and auditable records are kept showing what action it has taken in relation to ASB.
2. Spotlight report on Attitudes, Respect and Rights and consider its recommendations.