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North Tyneside Council (201915018)

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REPORT

COMPLAINT 201915018

North Tyneside Council

29 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. This complaint is about the landlord’s handling of the resident’s reports of anti-social behaviour (ASB).

Background and summary of events

Background

  1. The resident is a tenant of the landlord which is a local authority. The landlord has not provided with a copy of the resident’s tenancy agreement but has stated that she has been a tenant since at least 2008. The landlord has described the property as a semi-detached bungalow within a warden-managed scheme.
  2. The landlord has recorded that the resident has multiple disabilities, including mobility problems.
  3. The tenant handbook states that residents ‘must not do anything that causes or is likely to cause a nuisance, annoyance or disturbance to anyone living, visiting or working in the area’. It lists types of ASB, including ‘playing loud music’ and requires residents not to ‘use any words or take any other actions that humiliate, ridicule, embarrass, intimidate, frighten, distress or threaten anyone’.
  4. The landlord has an ASB statement of policy and procedures that sets out its intention to ‘deal swiftly and effectively with the minority of tenants, and their associates, who engage in anti-social behaviour, whilst ensuring that the means used to tackle problems are reasonable and proportionate to the particular situation.’

It states that the landlord will categorise an ASB report as ‘urgent’, ‘serious’ or ‘environmental’, ask the resident to complete five days of incident diaries, protect the complainant’s identity, take a multi-agency approach, gather evidence, keep the complainant up to date and offer witness support. It outlines that it will take non-legal (warning letters, acceptable behaviour agreements, mediation) or legal (injunctions, possession proceedings) remedies. It states it will do the latter in the most serious or urgent nuisance cases.

  1. The landlord has a corporate complaints procedure of three stages – stage one (15 working days), stage two (15 working days) and stage three (determination by an appeals committee).
  2. The resident’s complaint concerns a neighbour who is also a tenant of the landlord. This Service has not been provided with a copy of the neighbour’s tenancy agreement but it would be reasonable to conclude that the same, or similar, tenancy conditions apply.

Summary of Events

  1. The resident has advised this Service that she began to report ASB by her neighbour from early 2018. The earliest evidence provided to this Service is a letter that was sent by the landlord to the resident on 20 August 2018. It stated that:
    1. a partition fence between the neighbour and the resident did not require planning permission or consultation
    2. evidence of a breach of the neighbour’s tenancy agreement had not been established and so the advice was for both parties to avoid each other
    3. the housing officer would visit the resident on a weekly basis to offer support and monitor any further allegations
  2. The landlord recorded a telephone call on 27 February 2019 where the resident reported loud music from the neighbouring property, threats by the neighbour’s son and a physical assault by the neighbour’s son on another neighbour. It noted that it advised the resident to complete diary sheets and that the resident had advised that sound recording was attempted the previous year but was unsuccessful because the neighbour was able to ‘block out the noise’.
  3. The landlord’s records show that the Police passed on a report to it on 13 April 2019 that the resident had called them about excessive noise from the neighbour and a CCTV camera that the neighbour had installed. The resident advised the Police that the CCTV camera had been used to record music in her own home and play it back to her at a loud level. The Police advised that they had told the resident that her neighbour’s CCTV would not be able to record audio from within her property. They advised that they had carried out their own investigations at the neighbour’s property and not been able to evidence the noise allegations.
  4. The landlord recorded a telephone call on 1 July 2019 when the resident made a complaint that the landlord had failed to address noise nuisance from her neighbour and referred to a CCTV device that the resident stated the neighbour had used to intimidate her by loudly playing back recordings made of her own household noise.
  5. The landlord’s records show that the Police passed on information to it on 3 July 2019 regarding reports from the resident on 29-30 June 2019. It was the opinion of the Police that the neighbour’s CCTV device could not record and play back the resident’s household noise in the way the resident had reported.
  6. The landlord issued a stage one complaint response to the resident on 28 August 2019. It stated that it had attempted to resolve the problems with the neighbour over the previous 12 months by:
    1. liaison with the community protection team
    2. attempted installation of sound recording equipment which the resident had cancelled but, after further discussion with her, would be installed in October 2019
    3. a site visit to check that the neighbour’s CCTV was not in breach of their tenancy agreement
  7. The resident wrote to the landlord on 2 September 2019 and asked to escalate her complaint. Some of this correspondence related to the actions of the Police but she raised the following concerns about the landlord:
    1. it had failed to interview a witness to loud music from the neighbour’s property
    2. the neighbour’s CCTV was recording audio and was in breach of privacy law
  8. The landlord acknowledged the resident’s escalation request on 4 September 2019 but advised that it related to matters that were outside of its complaints process but it would continue with the October 2019 sound recording installation and advise the resident of the outcome.
  9. The resident wrote to the landlord on 8 September 2019. She disputed that her escalation was outside of the complaints remit. She advised that she had experienced verbal abuse from the neighbour’s son shortly after they moved in. She added that she believed the neighbour’s CCTV would have allowed them to be aware of the proposed October 2019 sound recording attempt.
  10. The landlord sent an acknowledgement to the resident on 11 September 2019 that confirmed that the complaint would remain open pending the October 2019 sound recording installation.
  11. The landlord recorded a multi-agency meeting on 30 September 2019. This resulted in a recommendation of shuttle mediation, confirmation that the October 2019 sound recording installation would proceed and a commitment to offer victim support to the resident and the neighbour.
  12. An internal landlord email on 12 November 2019 noted receipt of six recordings from the resident between 9-12 November 2019 but that none of these showed any noise beyond the resident’s own household noise.
  13. The landlord’s records show that the Police passed on comments on 14 November 2019 that stated they had made an ‘adult referral’ in the past for the resident on the grounds that she may have a medical condition.
  14. The landlord’s records show the Police passed on a noise report from the resident on 10 December 2019 that detailed events the evening before. The Police stated that they had witnessed no noise.
  15. The landlord issued a further complaint response to the resident on 20 March 2020. It is not clear at what stage of the complaints process the landlord issued this response but it stated that it had been working on the ASB issues for 18 months, including:
    1. liaison with the Police, community protection team and social care
    2. installation of sound recording equipment two months previously and a Noise App on the resident’s phone, neither of which had established noise nuisance
    3. an offer of mediation that remained open

It passed on a recommendation that it stated had been made by colleagues in the community protection team that the resident should discuss the matter with her GP to ‘explore all possibilities’ in regard to the resident’s ‘health and wellbeing’. It also offered to investigate any further incidents the resident reported to it.

  1. The resident wrote to the landlord on 27 March 2020. She asked for the complaint to be escalated and stated that:
    1. a neighbour and her son had told lies about her to the landlord in 2018
    2. the neighbour’s son had stolen some wood and erected a fence which the landlord should not have given permission for and blocks her sunlight
    3. since 2018, she had experienced harassment and verbal abuse
    4. the housing officer had implied that she had mental health conditions which is inaccurate
    5. there had been an incident during 2018 where the previous housing officer had stolen her mobile phone case
  2. The landlord issued a final complaint response to the resident on 3 June 2020. It confirmed it could not comment on the actions of the Police but that a multi-agency approach had been undertaken. It concluded that:
    1. mediation had been offered and refused ‘a number of times’
    2. it had not been able to collect noise nuisance evidence despite the Noise App and two installations of sound recording equipment
    3. it had recommended the resident speak to her GP to rule out the possibility of audible hallucinations and thanked the resident for doing so
    4. an allegation the resident made about a previous housing officer stealing her mobile phone cover in 2018 had been investigated at the time and found not to be possible
    5. eviction of the neighbour was not part of the possible resolution outcome
    6. the partition fence erected by the neighbour in 2018 would have its height reduced
  3. Internal landlord emails on 3 June 2020 show that it recorded that the neighbour’s fence had been reduced in height on 2 June 2020.
  4. The Police wrote to the landlord on 7 June 2020 following conversation with the resident and her neighbour. The Police stated that diary sheets had been considered but that the evidence did not constitute harassment.
  5. The landlord’s records show that the Police passed on a report on 26 August 2020 where the resident had alleged her neighbour’s son had struck her cat and that they would investigate the offence. The landlord has noted that it subsequently interviewed the neighbour and advised her of potential tenancy enforcement action.
  6. Internal landlord emails from October 2020 that show that it reviewed the results of the past sound recording installations. The landlord’s environmental health team noted that the device installed 10-14 October 2019 had been unplugged so nothing was recorded and that the device installed 12-16 December 2019 recorded no music which the resident had reported was ongoing.

Assessment and findings

  1. In reaching a decision we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case.
  2. The Ombudsman considers complaints about how a landlord has responded to reports of a problem. It is not the Ombudsman’s role to decide if the actions of the alleged perpetrators amounted to ASB, but rather, whether the landlord dealt with the resident’s reports about this appropriately and reasonably.
  3. The resident has reported several incidents of noise nuisance from her neighbour during 2018-19. Records seen by this Service show that the landlord received many of these reports via the Police. In response, the landlord has noted and evidenced the following actions:
    1. advised the resident from at least early 2019 to complete incident diary sheets
    2. liaised with the Police and relevant colleagues within the local authority, including the environmental health team
    3. asked the resident to download and use a Noise App to collect evidence
    4. installed sound recording equipment at the resident’s property on two occasions in late 2019 for a week at a time
    5. made mediation offers to the resident (which have been refused)
    6. undertook a site visit to check the resident’s allegations about her neighbour’s CCTV and recorded comments from the Police following their investigations of the CCTV device

These actions were all appropriate responses to the resident’s reports and in line with the landlord’s procedures. They also reflect the Ombudsman’s experience of similar cases across the social housing sector as appropriate actions to take when managing neighbour disputes.

  1. The resident has asked the landlord to pursue enforcement action against her neighbour. However, legal action, such as eviction, cannot usually be undertaken except as a last resort where all other efforts at resolution have failed, and where a robust case has been built to present to the courts. Building a robust case requires a range of evidence to be obtained such as the landlord attempted in this case and a landlord would need to prove to the courts that it had tried to resolve matters with less formal methods.
  2. The landlord has demonstrated that it attempted to gather evidence of the nuisance that the resident reported. It did so through a combination of using its own resources (visits and installing sound recording devices), liaising with third parties (such as the Police) and asking the resident to record and report incidents. These steps have failed to yield evidence of noise nuisance and harassment. Despite the evident impact the alleged ASB had on the resident, it was reasonable that the landlord did not pursue legal action in this case and it has appropriately advised the resident that eviction was an unlikely outcome.
  3. Nevertheless, the landlord continued to consider the resident’s reports during 2020. This led to a commitment that the fence erected by the neighbour would be reduced in height which was completed in June 2020 according to the landlord’s records. When evidence was obtained in August 2020 that the neighbour’s son was being investigated by the Police for striking the resident’s cat, the landlord did interview the neighbour and outlined that a warning could follow under the terms of the tenancy. This demonstrated that the landlord was willing to act where it could evidence potential ASB.
  4. Given neither the landlord nor the Police have been able to evidence the noise nuisance, it was appropriate that the landlord decided to deal with the matter through non-legal remedies as its ASB procedures require. It has offered mediation on more than one occasion and has interviewed the neighbour. Based on evidence seen by this Service, this approach was proportionate as the case did not meet the criteria within the landlord’s ASB policy for it to be dealt with through legal remedies.
  5. The landlord suggested in March 2020 that the resident should approach her GP for medical assistance. It mentioned this in a complaint response in the context of the lack of evidence that had been obtained to corroborate her noise nuisance allegations. The resident subsequently stated that an officer had implied that she had a mental health condition. Although this Service has not seen evidence that the landlord questioned the resident’s mental health, it is of concern that it linked the advice to seek GP assistance to the neighbour dispute. This was unreasonable as the landlord should have restricted its complaint response to its handling of the ASB allegations. Instead, it conflated the two matters and suggested that the noise the resident reported may have been due to a health condition. If it had genuine concerns about the resident’s health, it should have raised these separately with the resident.
  6. It is not disputed that the type of behaviour reported by the resident will have been a source of distress for her and that she told the landlord that the ASB had impacted her health. In response, the landlord kept the complaint file open pending investigations, offered to meet regularly with the resident, reiterated that she could continue to report incidents and recommended that the resident liaise with health professionals. It was appropriate for the landlord to provide these methods of support and this demonstrated that it took the resident’s concerns seriously.
  7. In summary, the landlord has adopted a multi-agency approach and taken various steps to investigate the resident’s allegations. These have been unsuccessful so it was limited in the actions it could pursue against the resident’s neighbour. The landlord has therefore demonstrated that it acted in accordance with its obligations.

Determination

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s reports of ASB.

Reasons

  1. The range of actions taken by the landlord in response to the resident’s ASB reports were appropriate. There were no significant failings by it in its handling of the reports and it has evidenced that it took proportionate steps to investigate and address ASB.

 

Recommendations

  1. If it has not already done so, the landlord to review the outcome of its investigation into the August 2020 incident within four weeks of the date of this report and update the resident accordingly on any actions taken.