London Borough of Hackney (202125238)

REPORT

COMPLAINT 202125238

Hackney Council

15 July 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 the landlord’s handling of the resident’s reports of anti–social behaviour, specifically of dogs being on the estate.

Background and summary of events

2. The resident is a secure tenant of the landlord, a local authority. The property is a 3-bedroom flat. The tenancy commenced on 2 January 1995.
3. The resident states that he started to experience anti-social behaviour in relation to dogs being on the estate in February 2021 and had been in communication with the landlord about this. During this time the landlord had been in communication on several occasions with neighbouring estates regarding his concerns of non-residents being on the estate, but this had no effect.
4. On 27 May 2021 the resident raised a formal complaint to the landlord. He expressed his concerns about non-residents using the lawn area and dogs being on the estate off leashes. The resident informed the landlord that despite its previous intervention the matter had not improved. In response he had been told that the grass areas on the estate was open to anyone as there is a shortage of green space in the area.
5. Following this there was a delay in providing the resident with a stage one response under its complaints procedure and the resident chased the landlord about this several times. Subsequently on 29 November 2021 the landlord wrote to the resident to acknowledge the complaint and distress caused. It explained that any efforts to enforce rules against the residents of the neighbouring estates were not straightforward due to the residents not being in direct contact with the landlord. It had, on more than one occasion, made contact to request that non-residents were more considerate with the usage of this space. The landlord explained that while there are signs advising against dog activity, the legislative power wielded by such signs remained ambiguous. A comprehensive policy review was ongoing regarding green spaces which would provide clarity on a legal position on this matter.
6. The landlord issued its stage one complaint response on 20 December 2021, explaining that as part of the investigation it reviewed its correspondence with the resident and legislation regarding usage of communal spaces. It reiterated the difficulties with trying to enforce the rules about non-residents and dog owners due to ambiguity and said it would be difficult to offer a clear conclusion with regard to whether the residents were breaching any conditions or if these had failed to be enforced by the landlord.  The landlord confirmed that it made efforts to intervene, but with residents that fall outside of its direct jurisdiction there was a limit to action that can be taken. The landlord also explained that a comprehensive policy review was on going regarding green spaces, which contributed to the significant delay in responding, and apologised to the resident.
7. The resident was unhappy with this response and asked for the complaint to proceed to stage two of the landlord’s complaints procedure. During this time the resident had been informed the case would take longer to resolve due to his case handler being on annual leave which he understood.
8. Subsequently the landlord issues its stage two response on 4 February 2022. The landlord reviewed five issues within the resident’s complaints, as follows:
   1. The resident felt that he was not being listened to and his concerns were not being taken seriously.
   2. The resident questioned why he was told by the landlord there was nothing it could do about dogs off leads, despite a public space protection order being in place and the council’s website clearly stated that dogs should be kept on leads at all times.
   3. The resident questioned why non-residents were being allowed on to council estate land to cause residents a nuisance.
   4. The resident felt that he had been lied to, as he stated he had been advised that planting would be done in the green space to stop people from walking their dogs there, but this was yet to happen.
   5. He stated that the dogs were causing a nuisance. The law states that continuous barking for more than 5 minutes constitutes a noise nuisance, but no action was being taken against these owners.
9. The landlord responded to all the concerns above in detail and explained it had taken his reports seriously, taken a number of steps and would continue to, in efforts to attempt to resolve the issue.  It also explained that it would ensure that enforcement officers attend the area to ensure that all owners were made aware that dogs should be kept on leads and to act against those who do not comply.
10. Consequently, the resident referred the complaint to the Ombudsman for adjudication as he remained unhappy with the landlord’s resolution.

Assessment and findings

11. It is understood that the resident has an ongoing complaint with the landlord of anti-social behaviour regarding the use of communal areas, in particular non-residents using the area and dogs being off leads on the estate. The resident has also informed this service of how this nuisance has been impacting him and believes the stress is not conducive to his health issues.
12. The Ombudsman does not doubt the resident’s comments regarding his health. However, it is beyond the remit of this service to decide on whether there was a direct link between the reported anti-social behaviour and the resident’s health. Whilst we cannot consider the effect on health, consideration has been given to any distress and inconvenience which the resident experienced.
13. It is also important to note that not every instance of annoyance reported to a landlord will be something it has the power to act on. A landlord has two main duties when anti-social behaviour is reported. The first is to undertake a proportionate investigation to establish the nature and extent of the anti-social behaviour. The second is to weigh in balance the evidence, and the respective parties’ rights to enjoy their home and decide what action it should take. The Ombudsman’s role is to determine if the landlord carried out a proportionate investigation and whether the actions it took were within its powers.
14. This service has reviewed the landlord’s anti-social behaviour policy to get an understanding of the landlord’s obligations. The landlord’s anti-social behaviour policy sets out that it will investigate all reports of anti-social behaviour (ASB) and take them seriously. In the case of ASB occurring, a resident is advised to phone the police in an emergency, but generally to contact the landlord via email or telephone.
15. The landlord will contact residents within 24 hours for severe cases and within three working days for non-severe cases. The landlord will record and investigate the resident’s concerns and take steps to try and resolve the matter.
16. The anti-social behaviour policy states, “Antisocial behaviour is a complicated issue that needs action from a variety of agencies and partnerships. In line with current ‘best practice’, our approach to dealing with antisocial behaviour is focused on achieving positive results and building confidence in communities by:

1. Preventing and discouraging people from acting in antisocial ways;
2. Taking quick and appropriate action when needed;
3. Supporting people to make positive change in their behaviour”.

17. The resident has complained to the landlord on multiple occasions since February 2021 and has also provided this service and the landlord with evidence to support his claims.
18. In this instance this service has seen evidence to show that when the landlord was informed of the issues it reviewed the matter internally to see what, if anything, could be done to resolve the matter. The landlord had contacted managing agents of neighbouring estates to ask that its residents are aware of the rules and are considerate. Whilst the resident feels this had no impact, as the residents of the neighbouring estate are not within the landlord’s management, in the Ombudsman’s opinion it did what was within its powers.
19. The council’s ‘dogs on leads order’ is to prevent owners from exercising dogs off-lead on communal areas on estates and public parks and gardens under half a hectare in size. The resident has stated as the area being complained about is less than half a hectare the rules for the dogs off leashes should apply.
20. This service has not seen evidence of signs around the estate making residents and non-residents aware that no dogs are permitted in that area. It is the Ombudsman’s view that the landlord should considered to put reasonable measures in place to discourage people from acting in an anti-social way.
21. In an email dated 31 January 2022, the landlord stated that nothing could be done about dogs barking as this would be classed as statutory noise. The evidence shows it also was in communication with its legal team and was advised that although the estate land is owned by the council it can be classed as both private and public. Private in the sense that it belongs to the council, but public in the sense that it can be used as a green space and as such members of the public can use it.
22. This service understands the resident’s frustration and acknowledges that residents should be able to live comfortably within their homes. However, this service also recognises that the landlord has done what is within its powers and responded to the resident’s concerns accordingly.
23. It is understood that during a conversation the resident asked for the fence surrounding the lawn to be replaced with a higher fence and keep the gate closed or to completely remove the fence. However, the landlord had denied this request and told him that it did not have the funds to replace the fence and the small fence had to remain because children would play there. It is the Ombudsman’s opinion that the landlord was within its rights to make this decision, based on the information available to it and taking into consideration the resources available to it.
24. Overall, the Ombudsman recognises that the resident has experienced distress as a result of the ongoing anti-social behaviour, which the landlord has also acknowledged. However, the landlord has taken reasonable steps to investigate the resident’s reports, has appropriately advised where possible what steps it has taken, and has appropriately advised that it will continue to monitor the issue. The landlord has also ensured that enforcement officers will visit the estate in an attempt to try and enforce the rules, which the Ombudsman considers to be reasonable.
25. This service can see that the landlord was significantly delayed in responding to the resident’s stage one complaint. However, it did proceed to explain why the response took so long and issued an apology. This service understands that when policies are being reviewed, this can have an effect on cases pertaining to it. It is good practice for the landlord to keep resident up to date with the timeframe of its complaints and it is important that the landlord learns from this in future. As this service has seen no evidence to suggest that the delay caused a detriment to the resident, the Ombudsman is of the view that the landlord’s apology is sufficient.

Determination (decision)

26. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s response to the resident’s reports about antisocial behaviour, in particular dogs being on the estate.

Reasons

27. The landlord has taken steps to investigate the reports of anti-social behaviour made by the resident. It has also continued to monitor the issue and arrange for enforcement officers to attend the estate. Given the circumstances the landlord has proceeded with steps within its powers. Its response is proportionate to the issues being reported to it.

Orders and recommendations

Recommendation

28. The landlord should continue to monitor the issue and ensure that the enforcement team attends the area.
29. The landlord should ensure residents are kept updated when it is unable to respond to complaints within the expected timescales.
30. The landlord should consider to put reasonable measures in place to discourage people from acting in an anti-social way on the estate. If it is unable to do so the landlord should explain its reasons to the resident.