South Kesteven District Councill (202006324)

REPORT

COMPLAINT 202006324

South Kesteven District Councill

21 April 2021

Our approach

1. 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.
2. 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

3. The complaint is about the landlord’s handling of a complaint made against him about anti-social behaviour (ASB). 
4. The complaint is also about the landlord’s complaint handling.

Background and summary of events

Background and policies

5. The resident is a tenant of the landlord, at the property, although the landlord has not provided a copy of the tenancy agreement for this particular resident and only a generic copy.
6. The landlord’s ASB strategy booklet provided to this Service, dated 2015, states that noise nuisance and neighbour disputes may constitute ASB.  The strategy states that the landlord will take an incremental approach when responding to reports of ASB, with a verbal warning being given at the lowest end of the scale, with tenancy enforcement at the other end.
7. The landlord’s “Being a Good Neighbour” handbook sets out the approach the landlord will take when responding to reports of neighbour disputes, for example.  This includes interviewing the person complained about
8. The landlord has provided the Housing Ombudsman with a copy of its complaints process handbook dated 2013.  These documents cite a three stage complaints procedure whereby the landlord aims to investigate and provide a response to a complaint within 15 working days at all three stages.  Where the landlord requires a longer period time to investigate, it will let the complainant know.

Summary of events

9. On 1 or 2 September 2020 (incorrectly recorded in the landlord’s records as 1 August 2020) the landlord visited the resident to discuss issues of him allegedly taking his wheelie bin out at early hours of the morning, which was disturbing his neighbours and asking him to refrain from doing this.
10. On 4 September 2020 the resident telephoned the landlord expressing his dissatisfaction with its handling of the complaint made against him; he felt the issue was minor and that the neighbour had made the complaint against him in order to make his life miserable.
11. On 11 September 2020 the resident received a letter from the landlord reminding him of his tenancy obligations in respect of ASB and asking him to refrain from causing any further issues.
12. Specifically, the landlord referred to section of the tenancy agreement relating to ASB stating “Do not:
    1. Do anything which causes or is likely to cause a nuisance or annoyance to anyone in the local area, and:
    2. Do anything which interferes with the peace, safety, comfort and/or convenience of other people living in, visiting or working in the area, and;
    3. Antisocial behaviour also includes excessive noise”.
13. On the same date a discussion took place between the landlord and resident, during which the resident expressed that he felt the issue complained of was minor in nature and believed his actions to be reasonable; taking the wheelie bin out once a fortnight, which takes a matter of seconds.
14. On 18 September 2020, the resident made a formal complaint to the landlord about its handling of a complaint.  He felt he had been treated unfairly and disproportionately by the landlord. 
15. The resident contacted his MP regarding the matter on the same date, who then subsequently also contacted the landlord a few days later on 22 September 2020.
16. On 1 October 2020 the landlord sent its stage one response to the complaint, to the resident’s MP only. The landlord has informed this Service that to do this is its standard practice.
17. Having not received the complaint response directly and being unaware that the landlord had responded, the resident contacted this Service, who in turn, contacted the landlord on 2 October 2020 and again on 21 and 30 October 2020, having still not received a response from it.
18. On 11 November 2020, the landlord wrote to the resident, apologising that it had not written to him directly previously.  The complaint was not upheld.  The landlord explained that when it is in receipt of a complaint it is obliged to investigate, which is what it did.  Having reviewed its actions, it found these were in accordance with its standard procedures.
19. On 23 December 2020 the resident expressed his dissatisfaction with the landlord’s response to the complaint and asked for it to be reviewed at stage two of its complaints process.
20. On 7 January 2021 the resident contacted the landlord again, expressing his view that the complaint made against him was false.
21. The landlord issued its final response to the complaint at stage two review of its complaint procedure on 11 January 2021.  It did not uphold the complaint, finding that it had responded to the complaint made against him in accordance with its policies and procedures.  The landlord explained that where allegations of ASB are made, it is obliged to investigate and take action as appropriate, which is what it did in this case.

Assessment and findings

22. In complaints about ASB or noise nuisance it is not the role of the Ombudsman to determine whether the issue/s occurred but rather, to investigate how the landlord responded to the reports/ made and whether its response/s were in accordance with its policies and procedures and appropriate and reasonable in all of the circumstances.
23. The landlord, having received a report or reports about the resident moving his wheelie bin early in the early hours of the morning, leading to disturbed sleep, the landlord was required to investigate.  This is because although taking the bins out constitutes ordinary living noise and not ASB, when ordinarily living noise is made at an unsociable hour of the day, this becomes unreasonable and the landlord is entitled to ask it to stop.
24. The resident does not dispute the issue itself, but rather, that it is petty and the landlord has overreacted to something so seemingly insignificant.  While the Ombudsman can appreciate the resident’s surprise and his view that he was carrying out a normal task at a relatively infrequent rate (once every fortnight), nonetheless, he was moving his wheelie bins at unsociable hours.  The landlord has a responsibility to prevent the escalation of disputes between neighbours and, as such, acted appropriately in asking the resident to refrain from doing this.  Correspondingly, the resident should reasonably oblige, in accordance with the terms of his tenancy.
25. The landlord was, however, heavy-handed in its response; as far as this investigation is aware, there was one report made of the resident moving his bins at early hours and no other reports made or issues complained of.  While it is true that the landlord is required to investigate any report such as this – and an investigation does not mean that an allegation is proven, but simply that the landlord is investigating – the landlord, in making reference to the matter constituting “ASB” and making reference to his tenancy obligations in the first instance and particularly, following this up in writing, could be seen to be excessive.
26. There is no information as to why it did this – possibly this could have been due to the resident not taking the matter seriously when it was verbally raised with him. However, the landlord’s documented process is that a verbal discussion will be had at the outset and a letter would only be sent if the issue remained unresolved, as the next incremental step up.  The landlord is permitted to use its discretion depending on the severity and complexity of a situation, as well as in its assessment of risk; however, none of these things appear to be relevant to this case.
27. It is important that when a report of ASB, noise nuisance or similar is made, the alleged perpetrator is provided with an opportunity to put things right and the landlord did not first do this before it sent its formal letter to the resident.
28. Taking all of the circumstances into account, however, the landlord’s response to the report made does not amount to service failure on its part.  This is because notwithstanding the landlord’s arguably overly robust approach to the situation, it was obliged to investigate the report it received about noise from the resident’s wheelie bin at an unsocial hour, and ask the resident to stop doing what it was doing, which it did.
29. Turning to its handling of the complaint, the landlord appears to have changed its complaints procedure since 2013, which is the date on the documents provided to this Service. The complaints procedure was three-stage but now appears to be two.  Irrespective of this, the landlord did not respond to the complaint with a reasonable timeframe and within the timescales set out in its complaints procedural guidance, nor did it update the resident to the delay. This is aggravated further by delay in responding to requests from this Service.
30. In particular, in respect of the landlord’s stage one complaint, this was not sent to the resident at all which was inappropriate.  Although the landlord has said it is common practice to just send a complaint response to an MP, this is not supported by any documentation provided to the Ombudsman nor is it best practice to not respond to the complainant of a complaint.  Complainants often seek assistance from their MPs, however, that does not negate the landlord’s responsibility to respond directly, unless there is an express request to do so or special circumstances, which was not the case here.

Determination

31. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in respect of the complaint about the landlord’s handling of a complaint made against the resident.
32. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its complaints handling.

Reasons

33. There was no maladministration by the landlord in respect of its handling of the complaint made against the resident insofar as it was obliged to investigate the report and having done so, asked the resident to refrain from taking his bins out so early, which was a reasonable request and in line with expectations as set out in his tenancy agreement.
34. There was service failure by the landlord in respect of its complaints handling insofar as it delayed in sending a response to the complaint at both stages one and two, with at stage one, it not sending the response to the resident at all initially.

Order and recommendations

Order

35. The landlord is to pay the resident £50 compensation for the service failure found in its complaint handling.

Recommendations

36. The landlord is recommended to review its processes in respect of responding to a complaint given the findings in this report, including its procedures in responding to correspondence from this Service.
37. The landlord is recommended to review and update its procedures relating to complaint handling and ASB given the age of the documents provided to this Service.