Rochdale Boroughwide Housing Limited (202017037)

REPORT

COMPLAINT 202017037

Rochdale Boroughwide Housing Limited

29 March 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 (ASB) by a neighbour.

Background

2. The resident is a tenant of the landlord. The resident has said that she first reported ASB to the landlord in 2019. However, from the information received, the first record of an ASB report was in November 2020.
3. On 11 November 2020, the resident contacted the landlord to report that her neighbour’s son was shouting outside her property at around 7pm and as a result she had to turn her TV up so as not to hear him.
4. On 13 November 2020, the landlord wrote to the resident to acknowledge her ASB reports. The landlord confirmed that the ASB report had been logged and the matter would be investigated. It stated that it would contact the resident in the near future to discuss what action it proposed to take. It requested that if the problem persisted, to let the landlord know immediately.
5. On 27 November 2020, the landlord contacted the resident by letter, stating that it believed the concerns regarding her neighbours had gone quiet or had been resolved; and unless the resident contacted it again within seven days, it would be assumed the resident agreed that the issues had been resolved and the landlord would therefore proceed to close the ASB file.
6. On 4 December 2020, the resident called the landlord to ask for an update on her reports of ASB. The landlord said it would get the neighbourhood team to contact her; however, the landlord noted on its record log that there was no record of a response to this request.
7. On 15 December 2020, the landlord emailed the police to confirm that it had received complaints about drug dealing at the neighbour’s property as well as people visiting the property on evenings. In breach of national coronavirus restrictions. It requested that the police patrol the area or speak to the neighbour.
8. The resident contacted the landlord on 8 February 2021, requesting for the landlord to call her to discuss concerns about her neighbour.
9. On 10 February 2021, the landlord phoned the resident. The landlord’s records of the call state that the resident said she was unhappy that her neighbour had not been evicted, as drug dealing was apparent at the neighbour’s property and also the neighbour was not living there, both of which the resident believed to be a breach of tenancy. The landlord informed the resident that it was not completing any routine visits due to Covid-19 restrictions, but that it would contact the neighbour to discuss the concerns.
10. The landlord contacted the neighbour on 19 February 2021 to discuss the concerns raised by the resident. The neighbour denied the claims made against her.
11. The landlord contacted the resident on the same day and informed her that her neighbour had denied the claims made. The resident said that the neighbour had people ‘coming and going’ from her property. The landlord therefore agreed to write to her neighbour about these reports.
12. The landlord issued a letter to the neighbour on 19 February 2021, which said that it had received reports of an alleged breach of tenancy and/or incident of ASB concerning people ‘coming and going’ to and from the neighbour’s property in breach of coronavirus restrictions. The landlord requested that the neighbour call the landlord to discuss the complaints so that it could fully investigate the issue.
13. The landlord wrote to the resident on 1 March 2021, in response to a further report of ASB by the resident. This report of ASB and the date it was reported was not provided to this Service. In the letter the landlord said reports of drugs being hidden in the cupboards of the neighbour’s property must be reported and dealt with by the police, explaining that the police could only deal with issues if a report had been made to them. It also advised the resident that reports of people visiting the property in breach of coronavirus restrictions should be reported to the police. Nevertheless, it informed the resident that it had reported these matters to the police, but, upon attending, the police could not come across anyone outside the neighbour’s property. The landlord said that it was monitoring reports that the neighbour was not living at their address, but it was difficult at this moment to carry out home visits and it could only contact the neighbour via phone. However, it explained that when it was safe to do so, it would attend the neighbour’s property to investigate this matter. The landlord requested that the resident complete diary logs of ASB to help it deal with the complaint.
14. On 31 March 2021, the landlord called the resident who informed the landlord that drug dealing was still continuing in her neighbour’s property. The landlord reiterated that this needed to be reported to the police. On the same day the landlord issued a written stage one complaint response to the resident, reiterating that the resident needed to report any suspected drug dealing to the police and that diary logs must be completed in regard to reports of noise nuisance and the alleged breach of tenancy.
15. The landlord called the resident on 19 April 2021. The resident informed the landlord that she was unhappy with the response of its stage one complaint as she wanted the neighbour to be evicted in response to the reports of ASB. The landlord enquired if the resident had contacted the police about the suspected drug dealing. She explained that she had not reported this because she believed that the police were colluding and protecting her neighbour. The resident requested that her complaint be escalated to stage two of the landlord’s internal complaints procedure.
16. In the landlord’s stage two complaint response, dated 20 April 2021, the landlord concluded that, based on the available evidence, it could not take formal action to evict the neighbour. It confirmed that it had not received any reports of ASB from the resident recently; nor had the resident completed the diary logs or reported the suspected drug dealing to the police. As such, the landlord did not uphold the resident’s complaint.
17. The resident responded to the landlord on 26 April 2021 by letter and said that the police and the landlord were keeping the neighbour in their property because nobody else wanted the neighbour living near them. The resident explained that she had not completed any diary entries, as she felt that the police and landlord were protecting her neighbour. The resident stated that the ASB continued to be a concern after two years of complaining about drug dealing, overcrowding, and her neighbour not living in her property. The resident informed the landlord that she would be installing CCTV at her property, to further prove who lived at the neighbour’s property and to show the ‘coming and goings’ of visitors during the pandemic.  The resident also said that information was getting back to her neighbour and asked for this to stop immediately otherwise a further complaint would be made; this was not elaborated on further and it is unclear specifically who the resident was making these accusations about.
18. On 6 September 2021 the resident contacted this Service to provide an update of an incident that occurred on 4 July 2021: that a plumber found a drain blockage, caused by the drain being clogged with cannabis. The resident stated that she informed the landlord of this, but it said this was not proof of drug dealing as it could not locate which property the cannabis had come from. The resident also informed this Service that she had medical conditions which affect her ability to write at times and therefore affected her ability to provide diary entries detailing the ASB.
19. The resident remained unhappy with the landlord’s outcome as she felt that the landlord and the police were protecting her neighbour. For this to be resolved satisfactorily, she would like the neighbour to be evicted from their property.

Assessment and findings

Policies and procedures

20. The landlord’s ASB policy defines ASB as any conduct that has caused, or is likely to cause, harassment, alarm or distress to any person; conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises; conduct capable of causing housing-related nuisance or annoyance to any person. This includes such behaviour carried out by a tenant, a member of his/her household, a family member or visitor. The policy states that if the complainant is unwilling to give evidence or otherwise co-operate with the investigation, the landlord may not be able to act.
21. The ASB policy states that the landlord’s approach to ASB reports are prevention and early action. The policy states it will always seek to act quickly in an effort to resolve issues before they escalate with a focus on understanding all points of view, setting out clear expectations on all sides and seeking mutually agreed resolutions. The landlord will work with partners and the communities to carry out initiatives designed to prevent ASB and to divert such behaviour with diversionary activity.
22. The landlord’s ASB policy states that it categorises the importance of reports of ASB into three categories. These are defined as:

1. High – Cases involving violence or threats of violence and hate crimes. Response time within one working day.
2. Medium – Cases involving damage to property. Response time within two working days.
3. Standard – Cases involving all other kinds of nuisance. Response time within five working days.

23. The landlord’s ASB policy states that where a simple, mutually agreed solution cannot be worked out, the landlord will take appropriate action including but not limited to:

1. Mediation;
2. Restorative justice;
3. Warning interviews/letters;
4. Acceptable behaviour contracts;
5. Parental control agreements; and
6. All available legal remedies including injunctions, possession proceedings and undertakings.

24. Often cases will require support and cooperation with outside agencies and the landlord will actively manage harmonious and efficient partnership working with a range of organisations. Where the anti-social behaviour is a criminal offence, the landlord expects those affected by it to report the matter to the police.

Scope of investigation.

25. The resident raised concerns that information and reports about ASB had been relayed to her neighbour. It is unclear who the resident is suggesting passed on the information on, whether that be the police or the landlord. The Ombudsman has considered distress and inconvenience caused by any errors made by the landlord. However, we cannot consider whether the landlord breached data protection regulations in its handling of the resident’s personal information. This is because, in accordance with paragraph 39 (m) of the Housing Ombudsman Scheme, the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, falls properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body. Alleged breaches of data protection regulations fall under the remit of the Information Commissioner’s Office (ICO). It is therefore advised that the resident contacts the ICO for further information if she wishes to pursue this element of the complaint.

Assessment

26. It is evident that this situation with her neighbour has been distressing for the resident. It is outside the role of the Ombudsman to establish whether the ASB reported was occurring or not. Rather, our role is to establish whether the landlord’s response to the resident’s reports of ASB was in line with its legal and policy obligations and whether its response was fair in all the circumstances of the case. The landlord is not responsible for the neighbour’s actions and no action which a landlord could take, with the possible exception of eviction could be guaranteed to prevent someone from engaging in ASB. Therefore, the landlord would not be expected to compensate the resident for any distress and inconvenience caused by the neighbour’s actions and the landlord would only be expected to pay compensation for distress and inconvenience caused by its own errors.
27.  In this case, over a period of three months, there were at least four reports of ASB, which, based on the evidence provided, the landlord acted mostly in accordance with its obligations. For instance, when the resident raised concerns about criminal activity by the neighbour, the landlord’s actions were in line with its obligations to work closely with partner agencies and to request the resident report the alleged criminal behaviour to the police. As set out above, the landlord’s ASB policy states that where the anti-social behaviour is a criminal offence, the landlord expects those affected by it to report the matter to the police. The landlord advised the resident to contact the police to report the suspected drug dealing as this would constitute a criminal offence and would thereby be best dealt with by the police in the first instance. This is because the police have a wider range of powers compared to the landlord in dealing with criminal behaviour. It would be reasonable for the landlord to wait for the outcome of any police investigation before taking formal action against the perpetrator of ASB such as issuing a tenancy warning or pursuing an injunction or eviction. The outcome of a police investigation could be used as supporting evidence to enable to landlord to take formal action for tenancy breaches. The landlord would also need to ensure that any actions it took did not interfere with an ongoing police investigation.
28. Similarly, the landlord acted appropriately when it advised the resident to report to the police regarding her claim that there were numerous visitors to the neighbour’s property during a national lockdown. This too would be best dealt with by the police, as it constituted a criminal offence at the time.
29. on 15 December 2020, the landlord emailed the police informing them that it had received complaints about drug dealing at the neighbour’s property as well as an excessive amount of people visiting the property on the evenings. It requested that the police patrol the area or speak to the neighbour. It is acknowledged that the resident did not wish to report the alleged criminal behaviour to the police, due to the resident feeling that the police wanted to ‘keep the resident in her property’ and would not act upon the reports.
30. It is also acknowledged that, following the completion of the landlord’s complaints procedure, the resident wrote to this Service on 6 September 2021 stating that plumbers had found cannabis in the drainage system on 4 July 2021. The resident believed that this supported her point that her neighbour was drug dealing, as she had previously been informed that the drain system only serves her property and those belonging to the neighbour being complained about, and another neighbour.  Whilst this is noted that there were not many properties involved, the landlord cannot be held responsible for cannabis being put down the drains. It also cannot act against the neighbour for this incident, as there is no evidence to confirm who was responsible for putting the drugs into the drainage system.
31. In order to take formal action against its tenants for ASB such as issuing tenancy warnings, injunctions or eviction, the landlord requires strong corroborative evidence to support any allegations of ASB. It would be unreasonable for a landlord to take against its tenants on the basis of allegations alone without supporting evidence. Eviction is a legal process and the landlord would need to go to court to seek permission to evict a tenant. The landlord would be expected to show the court that the ASB was severe and had been ongoing for a long time and that reasonable efforts had been made to resolve the matter informally before seeking eviction. The landlord acted reasonably by requesting that the resident complete diary logs, to support it in gathering evidence regarding the resident’s claims of ASB and a breach of the tenancy agreement (i.e. the neighbour no longer residing in the property).
32. In this case, the landlord asked the resident to complete diary entries and conducted an interview with the neighbour on 19 February 2021 in order to help gather evidence in support of the resident’s claims of ASB. These were reasonable requests in the circumstances, especially as the landlord was not able to make visits at the time due to the national lockdown.
33. It is noted that the resident did not complete the requested diary entries, as she felt that the landlord and police were protecting her neighbour. The Ombudsman has not disregarded the resident’s concerns, however as an independent and impartial arbiter we can only investigate the landlord’s actions based on the available evidence. This Service has not seen any evidence that the landlord refused to act on evidence of ASB, rather the evidence demonstrates that the landlord was acting in accordance with its ASB policy by looking at ways in which to gather evidence in support of the resident’s allegations.
34. The landlord’s ASB policy states that, if the complainant is unwilling to give evidence or otherwise co-operate with the investigation, the landlord may not be able to act. The Ombudsman is not questioning the resident’s reasons for not completing diary entries however, the lack of diary entries and other evidence to support the resident’s allegations meant that the landlord was limited in the actions it could take to resolve the ASB.
35. It is further noted that the resident has informed this Service that she has a medical condition, which potentially could hinder her ability to complete diary entries as it affects her ability to write. It is unclear if the resident has informed the landlord of this medical condition or its impact on writing diary entries. If the resident is still experiencing excessive noise and ASB behaviour, then the landlord should take this medical condition into consideration and look at other options to assist the resident with gathering evidence, such as installing noise recording equipment in the resident’s property. There is often limited availability of noise recording equipment and it therefore was reasonable for the landlord to request diary sheets in the first instance to assess the noise reports. If the diary sheets showed that there may be a noise issue which required further investigation then it may be appropriate to consider installing noise recording equipment at that stage.
36. In regard to the resident’s claim the neighbour no longer resided at the property, the landlord is typically expected to complete an investigation into reports of suspected breaches of tenancy such as this, but it would not be obliged to share the details of this investigation with other residents due to privacy and confidentiality. It is important to note that the resident’s claims that her neighbour was not living in the property, which would be a tenancy breach, would be considered under the landlord’s ASB policy. This is because a tenant not living in their property would not in itself significantly affect other residents. Although residents in the area may be affected by other people staying at the tenant’s property while the tenant was not there and causing excessive noise. Allegations of excessive noise by visitors to the neighbour’s property should be addressed separately through the landlord’s ASB procedure. The landlord has provided this Service evidence that it has investigated the allegation that the neighbour was not living at their property and the Ombudsman is satisfied with how the landlord dealt with the reports.
37. There is no legal obligation for landlords to install CCTV following reports of ASB, although the landlord should not unreasonably refuse permission for residents to install CCTV themselves at their own expense. Residents are expected to comply with data protection regulations concerning CCTV. It is understood that the resident has installed CCTV at her property and the landlord does not have to reimburse her for this. There is no indication that the landlord refused the installation of the CCTV, and therefore this could be used as part of the landlord’s subsequent investigations of ASB, if relevant.
38. However, the landlord did not adhere entirely to its ASB policy. For example, when the resident contacted the landlord initially on 11 November 2020, it did not contact her to discuss the ASB as it stated it would in the correspondence on 13 November 2020. Based on the communication logs provided, it did not attempt to contact the resident until 10 February 2021 after she reported further occurrences of ASB on 8 February 2021; this was a failing by the landlord.
39. When the resident reported the occurrence of ASB on 11 November 2020, the landlord acknowledged this two days later via letter, stating that the matter would be investigated and it would contact the resident to discuss any proposed actions. However, this contact did not happen and the resident had to chase this matter up with the landlord on 4 December 2020. This did not comply with the actions the landlord said it would complete nor with its ASB policy which states a response would be provided within five working days; it should have informed the resident of the outcome of the investigation into her ASB complaints and discussed if this issue was still ongoing.
40. Instead, on 27 November 2020, the landlord contacted the resident by letter, stating that it believed the concerns regarding her neighbours had ‘gone quiet’ or had been resolved. Typically, this would be acceptable if the landlord had contacted the resident and had been informed that the ASB had reduced. However, the landlord did not contact the resident to discuss the ASB and therefore, could not have been sure the ASB had been resolved or ‘gone quiet’. The landlord should have discussed this with the resident at an early stage to comply with its ASB policy where the landlord states it will act quickly in an effort to resolve issues before they escalate. Therefore, this amounted to a failure by the landlord.
41. This has been considered when assessing compensation in line with the Ombudsman remedies guidance published on our website. The remedies guidance suggests that we may award compensation of between £50 to £250 compensation for instances of service failure short duration and which may not have significantly affected the overall outcome for the complainant. Examples include:
    1. Repeated failures to reply to letters or return phone calls; and
    1. Failure to meet service standards for actions and responses but where the failure had no significant impact.
42. In summary, despite the identified service failings, the landlord acted mostly within its obligations in re. As a resolution to her complaint, the resident wanted the neighbour evicted. Ultimately, the landlord did not have enough evidence to support eviction proceedings in this case, despite its attempts at gathering corroborative evidence and therefore it was unable to comply with the resident’s request.
43. It is recommended, however, that, if the resident reports that the ASB is still ongoing, the landlord should continue to work with the resident, in accordance with its obligations to find a resolution. This would include gathering evidence such as reviewing CCTV footage, installing noise recording equipment, keeping diary logs of events (if possible), and continuing to work with third-parties such as the police.

Determination (decision)

44. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the resident’s reports of anti-social behaviour (ASB) by a neighbour.

Reasons

45. Overall, the landlord responded to the resident’s ASB reports in line with its ASB policy, however there was service failure in the landlord’s lack of response to the resident’s initial ASB reports.

Orders

46. The landlord is ordered to pay the resident £100 compensation for the time and trouble, caused by the landlord not investigating the initial reports of ASB or informing the resident of the outcome of the initial investigation.
47. This should be paid within 28 days of the date of this report.

Recommendations

48. if the resident is still experiencing noise and says she is unable to complete the diary logs due to her medical issues then the landlord should consider installation of noise recording equipment as a means of gathering evidence of the noise.