Kingston upon Thames Council (201903721)

REPORT

COMPLAINT 201903721

Kingston upon Thames Council

31 March 2021

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 resident has complained about the landlord’s handling of their reports of anti-social behaviour.

Background

2. The reported anti-social behaviour (ASB) relates to three neighbours. The reports were about the use of motorbikes, rubbish disposal, a neighbour’s behaviour, and the use of barbeques.
3. The resident explained to the Housing Ombudsman they had reported these issues over many years. The landlord sought clarification from the resident in August 2019 following our contact with it about what action they felt the landlord had failed to take.
4. The landlord provided a summary of its actions in August 2019:
   1. It accepted the barbeque issue had been reported in previous summers by the resident. However it explained how it had also explained residents were allowed to light barbeques in their gardens. Furthermore it had arranged a fire safety inspection by the fire service following their concerns, but no issue had been raised by the fire service. As such it explained it could not take any further action.
   2. It accepted it had on ‘several occasions’ tried to resolve how two motorbikes were stored by a neighbour. As a result the owner had been made to park the motorbikes on the road and not on a pathway. The Environmental Health Department had confirmed the early start of the motorbikes, although disruptive, was not a statutory noise nuisance. As such the landlord explained it could not take any further action.
   3. It accepted the resident had reported bin bags, carrier bags, or cardboard outside the front door of the opposite flat. It confirmed this was not allowed and was discouraged. It explained how it wrote to residents who may leave items outside their door. However it also explained how it could not take any further action, particularly as these items were normally removed quite soon as they were rubbish left outside the door to be picked up when the resident went out.
5. The resident disputed this summary however in a response to our Service. She explained her reports also included abuse and damage of a door by one of the neighbours that had not been addressed. They confirmed they had provided a crime reference number to the landlord. The resident also explained:
   1. The rubbish was left outside the front door for days, but the landlord would not take action.
   2. The Environmental Health Department would not take action against the motorbikes due to budget cuts. Furthermore it had taken ‘years’ for the motorbike to be parked in an appropriate place.
   3. The barbeque flames were near a wooden fence and the resident’s flat and so was a fire hazard.
6. The landlord explained that as these issues had been responded to several times over the last 5 years it considered the matter closed. However following further emails by the resident the landlord did issue a stage 2 response in October 2019:
   1. It repeated that as the Fire Service had deemed there was no risk with the barbeque it would not take any further action on this issue.
   2. It explained Environmental Health Services wanted to discuss the claim the resident had been told the motorbikes would not be investigated due to budget cuts, as opposed to the explanation given that the bikes were on the road and not a statutory noise nuisance. Therefore it asked for details of the officer that had given this advice.
   3. It repeated that it had written to all residents ‘several times’ about items in the corridors, but that it had no further action that it could take.
7. As part of this assessment we have copies of:
   1. A letter to residents in May 2017 to warn everyone about the correct disposal of rubbish
   2. A stage 1 response to a barbeque complaint in October 2018 which referred to previous reports in 2014. In 2018 the landlord had visited new neighbours to give the same advice as in 2014 about being considerate with barbeques.
   3. A May 2019 advice letter to the neighbour about the use of barbeques, and an email from the Fire Service in June 2019 confirming it did not consider it a fire risk.
   4. An April 2018 email from the council’s ASB Senior Professional stating the recorded noise would not be considered a statutory noise nuisance.
   5. A May 2018 stage 1 response about the motorbikes. This also referred to noise and exhaust nuisance reports in March 2017. This letter is the source of the budget cut statement as it explains the Environmental Health Department will only investigate statutory noise nuisance (as opposed saying they will not investigate it at all due to budget cuts). The response explains how a video had been used to determine it was not a statutory noise nuisance.
8. The resident continued to complain about how items were regularly left outside front doors in the building. They highlighted how the landlord had only sent one letter some years ago, but that they had continued to report items in the hallway with no response by the landlord. They also re-raised how one of the neighbours had also been abusive and damaged her door, and how this had not been responded to by the landlord.
9. The landlord therefore responded to these issues in a stage 1 and 2 response in May and June 2020 respectively. It explained:
   1. Letters had been sent in February, March and April 2020, and direct action that could not be disclosed had been taken against the neighbours it could identify as responsible.
   2. It later expanded that the specific neighbour raised by the resident had been written to in July and October 2019 and spoken to in May 2020. The landlord has provided copies of these letters for the Ombudsman to confirm they were sent. It also noted how 2 reports from the resident of items in April 2020 resulted in extra checks by the caretaking service.
   3. The response stated the behaviour by a neighbour (ie the abusive language and damage to the door) would not be included as it was not part of the stage 1 response. However the resident had sought to include this issue since August 2019 when the landlord ask the resident to confirm what issues they wanted including in the complaint.

Assessment and findings

Motorbikes

10. The resident complained in August 2019 they had raised this issue for years but the landlord had not responded. However there are emails about both the noise investigation and a formal complaint response about this issue in 2018.
11. Furthermore the landlord has explained that it has taken action to have the motorbikes parked elsewhere, and why it cannot take any action about the noise. It is reasonable for landlord’s to rely on the opinion of appropriately qualified staff and third parties. As a landlord it must both provide a fair service to all residents, and consider the best use of its resources. As the investigation of the motorbike noise concluded there was no statutory noise nuisance it was reasonable for the landlord to conclude it could not take any further action that would be fair and proportionate.

Barbeque

12. This issues has been raised in previous years and with previous neighbours. The issue has also already been subject to an Ombudsman determination which considered events up to April 2019 related to the barbeque. Therefore any events before April 2019 are outside the jurisdiction of this assessment.
13. The landlord has given consistent advice that residents are allowed to use barbeques in their gardens. This is a reasonable response and is in line with the rights and responsibilities that all residents have in their occupancy agreements.
14. The landlord has shown how it has tried to help the resident as far as possible by informally discussing the matter with the neighbours. Furthermore it addressed the fire safety concerns by having the Fire Service inspect the site in June 2019
15. The landlord’s response to say that the barbeque was not a risk was based on independent evidence and so was therefore reasonable.

Rubbish disposal and neighbour behaviour

16. The landlord has taken action about the reports of items left in the hallway in May 2017, July and October 2019, February-May 2020. This action has included either letters to all residents or direct letters to residents it has reason to believe are responsible for rubbish left in the hallway.
17. The landlord has also consistently tried to manage the resident’s expectations by explaining how any response to reported ASB must be proportionate. As such its response to rubbish left in the hallway is likely to be limited to letters and interviews. This is a reasonable explanation, and would only change if an appropriate third party (for example a fire safety expert) noted that the items were a serious enough risk to merit more formal action.
18. However, the landlord has failed to respond to a report of ASB that the resident has tried to consistently raise during these issues. The landlord contacted the resident to confirm what issues they wanted including in the complaint in August 2019. The resident confirmed the three issues above, but also added how the neighbour involved in leaving rubbish had also been abusive and damaged a door. The landlord did not include this in its stage 1 response. The resident raised this in their escalated responses, but again neither of the stage 2 responses included it. Furthermore the second stage 2 response stated the issue had not be raised for the stage 1 complaint (when it had) as an explanation for not including it.
19. It is noted that the resident raises an unusual volume of correspondence and complaints with the landlord. This will create a challenge when trying to identify all the issues raised. However the landlord took the best action to mitigate this at the outset by asking the resident to confirm the specific issues involved and what they felt had not been done. Unfortunately it did not then include the resident’s response in how it responded to the complaint.

Determination (decision)

20. I can confirm in accordance with paragraph 54 of the Housing Ombudsman Service there was maladministration in the landlord’s handling of the reports of anti-social behaviour.

Reasons

21. The landlord’s responses to the barbeque and motorbike issues were reasonable as they were based on evidence and appropriate advice, and the actions were proportionate to the situation.
22. However the landlord’s response to the reports of regular rubbish in the hallway (insofar as it also included reports of abusive language and damage to a door) was not fully investigated. Furthermore following the initial oversight the landlord then missed the opportunity to pick the issue up when re-raised by the resident.

Orders and recommendations

23. As a result of the determination above I have ordered that the landlord, within 4 weeks:
    1. Pay the resident £200 to acknowledge the inconvenience of having to pursue an issue without response
    2. Confirm whether a formal complaint has since been opened about the handling of the reports of abuse and damage to a door by the neighbour. If not a formal response should be provided to these concerns.