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Southampton City Council (202000348)

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REPORT

COMPLAINT 202000348

Southampton City Council

14 November 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 response to:
    1. Reports of antisocial behaviour by the resident’s neighbours.  
    2. The resident’s request to be re-housed.

Background

  1. The resident is a secure tenant of the landlord at the property, a two-bedroom third floor maisonette where she lives with her 8-year-old son. The landlord says she now has priority for a transfer to a ground floor property, on medical grounds. There is historic evidence of reports from the resident of antisocial behaviour (ASB) about three other flats in the block.
  2. Between February and May 2021, the resident reported that laundry left in communal areas by neighbours was dripping onto the floor in the communal hallway and causing a slip hazard, that there were rubbish bags in the hall, there had been drug raids on a neighbouring flat and a strong smell of drugs from other flats.
  3. The landlord said that the warden for the block had been advised about the rubbish and washing issues. The resident stated that she would not be participating in mediation as she had already attempted this herself, and it had resulted in escalated incidents. She said that she understood that mediation was not mandatory. The landlord replied that the assessment team did complete mediation between neighbours at a later step in their process. The landlord said it sent complaints to them as an independent assessment service, to gather information from neighbours, speak to the perpetrator then report back to the landlord to use when taking action to rectify any complaint.
  4. The resident replied that the issues were not one tenant specific, and mediation would not affect ingrained drug use. The smoke affected her asthma and her son’s mental health, but she was unable to exchange as no one would move to the block. The landlord signposted the resident to the housing register with supporting medical evidence as appropriate and said that the neighbour had been warned about the rubbish and the warden was monitoring the situation. The landlord said that the resident was not eligible for a management move.
  5. The resident continued to report ASB to the landlord and drug issues to the police. The landlord said it would contact the police to see if any action should be taken in terms of tenancy breaches. The resident complained on 11 July 2021 and the landlord responded that as the resident had declined the offer of help from the assessment office, the ASB would not be escalated. It said that rubbish was being monitored and contact would be made to tenants, but there were no grounds for a management transfer. Any reports of drug use were for the police.
  6. The resident replied that no one would exchange to the address because of its reputation, her young son was anxious and having counselling, and it would be six months until her medical evidence would be reviewed. The landlord wrote to all tenants in the block concerning the smell of drugs quoting the terms in their tenancy agreements prohibiting this and that drug use would be reported to police. The landlord’s final response advised the resident to report drug use to police and that the landlord would liaise with them as necessary, and that she should report noise issues to Environment Health. The landlord said that the rubbish had been removed but the resident had declined mediation. The resident was not entitled to a management move as she was not considered at serious risk.
  7. The resident continued to report incidents to the landlord and police. She has advised that the smell of drugs permeates her flat, that police raids on the neighbouring property upset her child but there is a lack of urgency from the landlord, and she feels at risk of abuse from other residents so has not engaged with mediation. In early 2022 the landlord visited the bock and spoke to tenants about rubbish, put up posters and wrote to one property regarding drugs/bins and tenancy risk. The resident feels the landlord has not helped her because she refused mediation when this was voluntary. She wants the ASB to be prevented, and to be moved.

 

Assessment and findings

Scope of investigation

  1. The concerns raised by the resident in relation to her neighbour’s dogs are not included in this investigation, as they were raised by the resident after the final complaint response. This is in accordance with paragraph 42 (a) of the Housing Ombudsman Scheme which says that the Ombudsman may not consider complaints which are made prior to having exhausted the landlord’s complaints procedure. The resident may pursue a separate formal complaint about this as appropriate.
  2. It is noted that the resident has stated that remaining at the property has affected her and her son’s health. The Ombudsman does not doubt her comments; but must clarify that it is beyond the expertise of this Service to decide on whether there was a direct link between the events at the property and her and her son’s health. The resident may therefore wish to seek independent advice on making a personal injury claim if she considers that her family’s health has been affected by any action or lack thereof by the landlord. This investigation does not consider any effects on the resident or her son’s health or its cause.

Landlord’s response to reports of antisocial behaviour

  1. Section 1.1 of the tenancy agreement published online says tenants must keep to the conditions of the tenancy and are responsible for behaviour of others in the property. Section 3.5 says (a) tenants must keep communal areas clean and tidy and (b) free from hazard. Section 3.9 (b) says tenants in blocks must get rid of rubbish in the proper way and not leave items in communal areas. Section 4.2 (b) says tenants and others must not do anything which interferes with the peace, comfort safety or convenience of anyone living in the locality.
  2. Section 4.2 (c) of the tenancy agreement says that tenants and others in the property must not use the property for illegal purposes including the possession or use of illegal drugs. 4.4 says the landlord will take legal action to stop tenants and visitors behaving in an antisocial way including taking legal action to obtain an injunction or evict tenants from the property. 4.6 (b) says the landlord takes ASB very seriously and will, where appropriate, use available legal powers to act against those causing the problem.
  3. Section 4.6 (c) says the landlord will give help and support if tenants report ASB. 4.6 (d) says the landlord will investigate, keep tenants informed and take appropriate action to tackle the problem. 4.6 (e) says the landlord will refer complaints about ASB to a mediation service or to other agencies as appropriate. The tenant handbook, published online, says that ASB includes littering and illegal drug use or dealing.
  4. The landlords ASB policy, section 6 lists ‘early intervention measures’ including the mediation assessment service ‘as a first step in the majority of ASB cases and provides a swift early assessment and informal intervention’. Appendix B gives examples of ASB and includes the use of the home for unlawful purposes and fly tipping.
  5.  The landlord’s ASB Best Practice procedure says at section 2 that if referral to mediation has not resolved the issue, tenants should be contacted to arrange an action plan meeting. Section 3 says that where issues are for the police, emphasis should be placed on joint working arrangements, and that the landlord will pursue allegations of ASB alongside any police action. Section 4 says that ‘When discussing the (assessment team) mediation process, avoid placing an emphasis on mediation. The complainant should be reassured that (assessment service) mediation will come out to their homes individually and discuss the situation with the parties separately and consider the options open to them. One of these options is mediation assessment.’
  6. Section 6 covers action plans, to include incident diaries, interviewing perpetrators. Section 13 covers non legal measures, including warnings and acceptable behaviour contracts. Section 14 says that criminal behaviour orders and referrals can be made where there are ASB cases which impact on the local community.
  7. Section 15 covers multi agency meetings and includes when there is persistent ASB which poses a threat to physical and or mental wellbeing of the victim or family. Section 16 covers legal remedies and includes demotion orders, community protection notices in instances of dumping rubbish, right up to seeking possession as a last resort in serious cases where all other measures have failed to stop ASB.
  8. In this instance, the landlord took various steps to respond to the resident’s reports of ASB, including writing and speaking to residents about the rubbish concerns, and removing items of rubbish. It also signposted the resident to Environmental Health and the police who it said it would work with to act as appropriate. It asked the warden of the block to monitor the rubbish situation, issued warning letters to residents, offered mediation (although it is noted the resident did not wish to take part) and confirmed it would advise all residents not to leave the back door wedged open. The landlord also visited the property to witness the rubbish and smell of cannabis, although it was unable to get sufficient evidence to warrant further action in this respect.
  9. Whilst the landlord took actions in line with its policy, the content and number of emails from the resident indicated that she felt unsupported. In particular, the landlord said on several occasions that it could not proceed with the ASB investigation because the resident would not take part in mediation. In its email dated 14 May 2021 the landlord said that whilst it understood the resident did not want to take part in this, it was the first step in its procedure of dealing with antisocial behaviour, and that if it were to look at tenancy action against the neighbour this was an important step that it must take.
  10. The resident went onto explain she had tried to communicate directly and via the neighbour’s parent to no avail and the landlord responded on 19 May 2021 that mediation was only part of the process, and that the assessment team would speak to the neighbours and the alleged perpetrator and report back to the landlord. It is not clear why this was not then put in train, as the resident had only objected to the mediation element. The landlord could have gone further to communicate to the resident that it would not be necessary for her and the alleged perpetrators of the ASB to have to engage in dialogue, which the resident was concerned about.
  11. The ASB policy says that measures include mediation assessment service ‘as a first step in the majority of ASB cases and provides a swift early assessment and informal intervention.’ Which suggests that it is not always used, and alternatives could have been investigated.
  12. Further, the best practice procedure states that where mediation has not resolved the issue (as it did not in this instance), an action plan meeting should be arranged with the resident. There is no evidence that such a meeting took place. The procedure goes onto say that the landlord should avoid placing emphasis on mediation and the complainant should be reassured of the alternatives available to them. The action plan includes interviewing perpetrators and goes on to state the non-legal and legal measures that can be brought into play.
  13. Despite this, the stage one response said that because the resident refused the mediation, the ASB case would not be escalated. The stage two response said that the resident refused mediation between the parties as the first step in the process, so the landlord was unable to find fault in the help or advice provided by the landlord. Confusingly, in its email of 23 November 2021 the landlord said that the assessment referral was in reference to the reports of rubbish being left, and the drug related issues should continue to be reported to the police. It then said that as the assessment referral had been refused, the landlord was unable to any action that it ‘may need to’ against the neighbour.
  14. Although the landlord did take some steps to address the surface issues with the rubbish and by advising the resident to raise a repair to address the smell of smoke entering her bedroom, it stated in its formal responses that the resident’s refusal to engage in mediation was the cause of the ASB complaint not being investigated.
  15. It is reasonable that the resident would be unwilling to discuss her concerns with the various neighbours who were the subject of her reports. The resident had stated that she and her son felt vulnerable and were avoiding coming in and out of the property at certain times to avoid individuals. The Ombudsman views mediation as an effective option in cases such as this, however, it is also appreciated that, in many cases, it is not viable. In this instance, the resident had explained that her own attempts to resolve the issues in an amicable manner had led to escalation and that she was fearful of further escalation if similar attempts were made now.
  16. The landlord has not shown that it has always worked with the resident to reassure her that it would investigate and resolve her concerns around the drug issues in the block, rather it has placed the onus on the resident to resolve the issues herself and taken the stance that she was blocking the process. The Ombudsman is not therefore persuaded that it acted in accordance with its ASB best practice procedure in this case.
  17. It is also noted that in February 2022, following a letter from the resident to a senior manager outlining her serious concerns, a fulsome response was sent three days later. It offered reassurance and said that it would discuss the prospect of a joint ASB survey with the police with the possibility of coordinated activity and encouraging other residents to provide additional information. The letter also urged the resident to engage with the assessment service and gave more background information of how this may help, including the resident remaining anonymous.
  18. The landlord said it would ensure that it reviewed the action it had taken, and it may be that it could independently observe the situation regarding the cannabis smell and send letters outlining tenancy obligations and consequences. It also suggested that the resident and other neighbours attend the next local police and community meeting so matters could be raised directly with the police. It offered reassurance that wardens would continue to monitor and react to the issue of rubbish in the block. It also offered a meeting with the resident’s housing officer to either establish or confirm an action plan.
  19. This response, which offered assurance that further ASB investigation action was possible, and detailed the various options considered by the landlord, was encouraging. However, the landlord could have provided this reassurance at an earlier point. Such a reply a year earlier could have given the resident confidence that she was heard. If the landlord had made attempts to witness behaviour independently, had asked other residents for information and better explained the role of the assessment referral team at an earlier stage, it would have better indicated that it was fully investigating the resident’s concerns.
  20. In all the circumstances of the case, given the failures identified here, the Ombudsman is not satisfied that the resident has been given a reasonable and appropriate response to the ASB issues she has reported. To remedy these failures, an award of compensation in line with the Ombudsman’s remedies guidance for cases involving service failure has been ordered, together with a separate order to discuss progress on the case since the correspondence between the parties in February 2022.

Request to be re-housed

  1. The Ombudsman’s remit is limited in the extent to which re-housing issues can be investigated as complaints relating to the local housing register fall more appropriately within the Local Government and Social Care Ombudsman’s remit. However, this investigation can consider the landlord’s response in the context of its powers to offer a potential management transfer. The landlord’s general advice and level of support on re-housing issues can also be considered.
  2. The landlord’s ‘management transfer best practice procedure’ says at page six that it aims to enable staff to provide emergency transfers due to a realistic fear of violence. It says that there is no automatic right to a management move and there is no process for tenants to apply for one, they are to enable staff to move a tenant in an exceptional and dangerous situation. Section two says that management moves are a last resort and should only be used in exceptional circumstances.
  3. There has been no suggestion or evidence that the resident was in danger of violence at the property. The landlord has consistently said that the resident does not meet the threshold for a management transfer. This is in accordance with the landlord’s best practice procedure, as there is no suggested risk of violence, and this is the only criteria on the policy. The procedure says that the landlord has to refer the tenant, it is not something the tenant applies for.
  4. Instead, the landlord has directed the resident to provide medical evidence to support an application for a move via the housing register, which is fair in all the circumstances. It appears from the latest update from the landlord that the resident now has a medical priority for a ground floor flat and is awaiting a suitable property to become available. This suggests that her medical evidence has now been assessed.
  5. Accordingly, the Ombudsman is satisfied that the landlord took reasonable action in relation to the resident’s request for a move. It advised the resident on several occasion that she did not meet the threshold for a management move, which is correct given the evidence and the terms of the best practice guidance. The landlord instead directed the resident to submitting the necessary evidence to the housing register, which it appears is progressing. The landlord also confirmed to the resident her right to seek a mutual exchange, a further option available to her in seeking to move away from the property.

Determination

  1. In accordance with paragraph 52 of the Scheme there was:
    1. Service failure in respect of the landlord’s response to the resident’s reports of antisocial behaviour.
    2. No maladministration in respect of the landlord’s response to the resident’s request to be re-housed.

Orders

  1. Within four weeks of the date of this determination, the landlord to pay the resident £100 compensation for the service failures identified with its response to her ASB reports.
  2. The landlord to evidence compliance with this order to this Service within 28 days of this report.

Recommendations

  1. The landlord to update the resident with any progress on ongoing ASB issues, making specific reference to the options it outlined to her in its February 2021 correspondence.
  2. The landlord to liaise internally with its Housing Register team and confirm the current status of the resident’s re-housing application and to confirm whether any further support is available to help facilitate her attempts to be re-housed.