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Southwark Council (202120712)

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REPORT

COMPLAINT 202120712

Southwark Council

28 November 2023

 

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 reports of antisocial behaviour (ASB) about a neighbour, and its response to counter reports received about the resident.
  2. The Ombudsman has also considered the landlord’s complaint handling and record keeping.

Background

  1. The resident is a secure tenant of the landlord. The property is a first and second floor flat.
  2. The complaint concerns a historical neighbour dispute between the resident and her neighbour. The neighbour lives in the property below the resident. The resident states that she was regularly disturbed by the neighbour’s noise nuisance and inconsiderate behaviour. The neighbour alleges that the resident subjected her to intimidation, verbal abuse, loud music, and had made malicious reports of abuse and fraud to several services.
  3. The resident raised a stage 1 complaint in April 2021. The resident said that the landlord had not taken satisfactory action to find a solution to ongoing issues with the neighbour. It is unclear whether the landlord provided a formal stage 1 response.
  4. The resident raised a new stage 1 complaint on 15 November 2021. The resident reported that she continued to experience noise nuisance and malicious behaviour from her neighbour. Although the landlord had previously spoken to the neighbour, the noise had become worse.The landlord had threatened the resident with court action if she did not turn up to a meeting and had encouraged her to attend another meeting under false pretences. The resident was dissatisfied with the landlord’s handling of the ASB case and its lack of positive action to resolve the matter.
  5. The landlord provided the stage 1 response on 24 November 2021. The landlord said that it was dealing with the matter and had an action plan in place. It had held meetings with both parties and was continuing to explore ways of resolving the issue. The landlord said that the resident was already aware of this.
  6. The landlord did not provide the Ombudsman with a copy of the resident’s stage 2 complaint, but the complaint was acknowledged by the landlord on 28 April 2022.
  7. The landlord issued the stage 2 response on 8 June 2022. The landlord did not uphold the resident’s complaint. It said that it had explored various avenues to resolve the neighbour dispute over the years, including mediation, which had been declined. The resident was encouraged to complete incident diaries and report new incidents of ASB to it.
  8. The resident referred her complaint to the Ombudsman because she believed that the landlord was ignoring her complaints about ongoing ASB and felt “fobbed off”. The resident considers that the landlord had treated her unfairly, had taken sides, and had not provided her with support.

Assessment and findings

  1. This investigation considers the landlord’s response to the resident’s reports of antisocial behaviour about a neighbour, and counter reports received about the resident, between 21 January 2021 and 8 June 2022. This being 6 months prior to the formal stage 1 complaint being made, through to when the landlord’s complaint process was exhausted.

The landlord’s handling of reports of antisocial behaviour about a neighbour, and its response to counter reports received about the resident.

  1. The landlord’s tenancy agreement states that the resident, those living in or visiting the property must act in a reasonable manner and must not do anything which causes a nuisance, annoyance, distress, or alarm to other persons residing, visiting, or otherwise engaging in lawful activity in the locality. In addition, the resident must keep noise, however caused, at a level which does not disturb other people.
  2. The landlord’s ASB policy states that it will take a multi-agency approach to tackling ASB cases. The landlord will consider the most appropriate and proportionate remedy to deal with any case, which may include non-legal remedies. This may include interviewing the alleged perpetrator, warning letters, acceptable behaviour contracts, mediation services, professional witness services, and referrals to other services as appropriate. Uncorroborated cases may be closed where after investigating no evidence has been found to support the complaint.
  3. A landlord has 2 main duties when ASB is reported. The first is to undertake a proportionate investigation to establish the nature and extent of the ASB. The second is to consider all of 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 conducted a proportionate investigation and whether the actions it took were reasonable and within its powers.
  4. The landlord met with the resident and her neighbour separately in January 2021, to hear their concerns, following a disagreement over the closing of the communal entrance door. It is understood that to resolve the matter, the landlord suggested that the parties meet with its external mediator. The landlord’s proposed course of action was proportionate and was in line with its ASB policy.
  5. Having committed to arranging mediation, the Ombudsman would have expected this to have been carried out in a timely manner, while the parties were still willing to communicate. It was unfortunate that the country was in a national lockdown between 6 January 2021 and 12 April 2021, due to the coronavirus pandemic. Understandably this would have delayed plans to mediate face to face. However, it should not have stopped the landlord from completing its approval process and from making a referral to the mediator. This would have avoided any subsequent delay once the lockdown had been lifted. It was unreasonable that approval for mediation was not sought until mid-May 2021, by which time new incidents of ASB had been reported.
  6. The landlord and mediator made several attempts between 26 May 2021 and 2 July 2021, to set a date for the mediation. The evidence suggests that the resident did not respond. It is unclear from the evidence seen whether the mediation was eventually completed. This could suggest an issue with the landlord’s record keeping.
  7. Since difficulties between the parties continued, a professionals meeting was arranged in August 2021. This showed that the landlord was adopting a multi-agency approach to the resolution of the dispute, in keeping with its ASB policy. Notes from the meeting have been shared with the Ombudsman, which indicate that participants acknowledged mediation had been tried on 3 occasions in the past, without a lasting solution. In recognising this, other options for resolution were discussed. This included tenancy enforcement action, installing noise equipment, employing a professional witness, private litigation by the respective parties, and a priority transfer. Of these options, the landlord committed to meeting with the resident and reviewing evidence with its legal team. This was a reasonable response and showed the landlord’s ongoing commitment towards resolving the neighbour dispute.
  8. While the resident has stated that she felt that the landlord was taking sides, the Ombudsman has seen no evidence to support this view. From the evidence seen, the landlord was taking an evidence-based approach to reports of ASB. For example, in August 2021, the landlord asked the neighbour to complete incident diaries for 6 weeks, to analyse the nature and pattern of ASB incidents experienced. This followed new reports of noise nuisance concerning the resident. The landlord’s approach was fair to the resident, as it did not act on the neighbour’s reports as fact. In taking this approach, it could evaluate the situation before considering next steps. It is noted that the resident has also mentioned completing diary incidents and, in the past, having sound monitoring equipment installed in her property.
  9. In August 2021, an incident involving the resident was captured on video, which resulted in police involvement. Considering the nature of the incident, it would have been reasonable for the landlord to have considered taking formal action against the resident for breach of tenancy. However, the landlord responded in a measured way, by arranging to meet with the resident to discuss her concerns, and how she believed the relationship with her neighbour could be improved. It is noted that the resident refused to attend another meeting unless there was a third-party in the room and said that she felt let down by its case officers. This suggests that the resident had loss trust in the landlord.
  10. The landlord recognised this and endeavoured to arrange a meeting for the resident with 2 of its housing managers. However, in the spirit of dispute resolution, it should have ensured there was an appropriate individual at the meeting, who was independent from its housing team as requested. Better still, the landlord could have considered using a third-party advocacy service to support the resident at the meeting. This was a missed opportunity and resulted in the resident not accepting the landlord’s new meeting invite.
  11. Following this, a professionals meeting was convened. It was agreed that due to the nature of the incident, the landlord would write to the resident, set out any implications for her tenancy, and arrange another meeting with her. The landlord sent a tenancy warning letter to the resident on 15 September 2021. The letter warned the resident that refusal to attend the meeting could “have a negative impact” on her tenancy. In view of the resident’s previous comments, it might have been helpful had the landlord suggested that the resident could bring someone to the meeting to support her.
  12. It is understood that the resident met with the landlord on 1 October 2021. Outcomes from the meeting show that the landlord had weighed the allegations and counter allegations made by both parties. The landlord committed to meeting with the neighbour, after which it would update the resident. It agreed that it would explore the possibility of arranging a “joint meeting / mediation” which ititself would facilitate. Although the resident agreed to mediation “if necessary”, the Ombudsman suggests this was likely to have achieved little merit, considering mediation had been attempted several times before with limited success.
  13. On meeting with the neighbour, evidence was provided that the resident had made serious allegations about the neighbour to several agencies. In view of this, it was agreed that the landlord would request a further meeting with the resident. After the meeting, the resident complained that the landlord had got her to the meeting under false pretences. She believed that she was meeting the neighbour to find a solution. Instead, she found herself in a room with the landlord and an employee from social services, who she said condemned and bullied her. In later written communications, the landlord told the resident that the meeting was not intended to be a joint meeting with the neighbour, but rather to ascertain facts and determine how to proceed with the mediation process.
  14. The Ombudsman notes that the landlord’s invite does not state that this was a joint meeting with the neighbour, but it was easy to see how the resident would have drawn that conclusion. If the landlord’s intention was to have a representative from social services at the meeting, it should have made this clear to the resident before the meeting, in the interests of transparency. However, it is noted that the resident did give her verbal consent for the social worker to join the discussions. The Ombudsman appreciates that there was some confusion over the purpose of the meeting. This was likely to have caused the resident some distress and perpetuated her mistrust in the landlord. This was avoidable.
  15. The evidence shows that following this meeting, the landlord committed to arranging mediation for January 2022, subject to consent from both parties. It is unclear from the evidence why this could not have been arranged in a timelier manner. However, according to the landlord’s stage 2 response, both parties declined to mediate further. This was unsurprising, as arguably the situation by this time had progressed too far.
  16. The landlord’s ASB policy states that the landlord will take a robust, flexible, and proactive approach to its tools and powers to deal with perpetrators and protect victims. Yet the landlord repeatedly offered mediation as the only solution. It would have been in keeping with its policy, for it to have explored other options which encouraged good behaviour, such as an acceptable behaviour or good neighbour contract. It could have considered taking positive action to discount or corroborate allegations made by the parties. This could have been achieved by revisiting the option of employing a professional witness, or reinstalling noise monitoring equipment.
  17. It was inappropriate that the case was allowed to drift. If the parties were unwilling to accept offers of mediation, and it was unable to take formal action due to the lack of corroborated evidence, the landlord should have considered offering the resident’s appropriate advice and closed the case. This would have been fairer and would have allowed the landlord to manage the expectations of both residents.
  18. In the absence of an agreed solution, allegations of ASB restarted in March 2022.The resident does not dispute that she was using her radio “as a weapon” at this time. She suggests this was done in response to deliberate noise being caused by the neighbour. While the resident was clearly frustrated by the ongoing difficulties with her neighbour, such behaviour was unhelpful. This would have made it more difficult for the landlord to support the parties in finding a solution. It is understood that the neighbour dispute continues to be unresolved.
  19. The Ombudsman does not doubt that the ongoing dispute with the neighbour was distressing for the resident. Cases where there is a history of ASB over an extended period, such as this, are often the most challenging for a landlord to manage. In practice, the options available to a landlord to resolve a case often do not extend to the resident’s preferred outcome and it therefore becomes difficult to manage a resident’s expectations. In such instances, closely following the ASB procedure ensures that the landlord can progress the case to a resolution, even if that resolution is not the resident’s preferred outcome.
  20. It is the opinion of the Ombudsman, that the landlord’s investigation into ongoing reports of ASB was proportionate and attempted to balance the evidence provided by both residents. However, there was too much emphasis placed on mediation. The landlord missed opportunities to consider how evidence could be corroborated and use other tools available to achieve resolution in this case. The landlord should have considered closing the case if it was unable to take further action, to manage the resident’s expectations. On balance, the Ombudsman finds service failure in the landlord’s handling of reports of ASB about a neighbour, and its response to counter reports received about the resident.

The landlord’s complaint handling

  1. The landlord has a 2 stage complaint process. Stage 1 complaints are responded to within 15 working days. Stage 2 complaints are responded to within 25 working days.
  2. The resident raised a stage 1 complaint on 13 April 2021. Under its policy, it should have provided a stage 1 response by 5 May 2021. The Ombudsman asked the landlord to clarify whether it had provided a stage 1 complaint response, however it was unable to confirm this. This shows a failure in the landlord’s record keeping.
  3. After the resident raised a further stage 1 complaint in November 2021, the landlord issued its stage 1 response within expected timescales under its policy. However, in contravention of the Housing Ombudsman’s Complaint Handling Code (2020), the complaint response did not set out the complaint stage, the complaint decision, or how the complaint could be escalated. This was inappropriate and would have left the resident uncertain as to how to progress her complaint.
  4. The landlord has not been able to provide the Ombudsman with a copy of the resident’s stage 2 complaint. This is further evidence of issues with the landlord’s record keeping. It is also of concern that the landlord did not provide all the evidence that the Ombudsman requested in the initial information request, which it later relied upon as evidence. This was unhelpful and delayed determination of this complaint for the resident.
  5. The resident has explained to the Ombudsman that the relationship between the resident and the landlord has broken down. She states that housing staff no longer communicate with her. After losing confidence in the landlord’s complaint’s process, the resident now directs her complaints to the landlord’s elected members. It is in the interest of all parties for there to be an effective tenant and landlord relationship, which is built on mutual trust and respect. The landlord should endeavour to work with the resident to understand her concerns and agree how to work together in the future. The landlord may wish to consider using third-party advocacy services to support these discussions.
  6. While the Ombudsman was able to determine this case based on the evidence provided, there were omissions in the landlord’s records, as highlighted throughout this report. The Ombudsman would expect a landlord to keep robust records and evidence of its actions relating to each casefile, which can be provided to the Ombudsman upon request. Landlords who fail to create and record information accurately risk missing opportunities to identify that its actions were wrong or inadequate and contribute to inadequate communication and redress. The landlord’s record keeping fell short.
  7. When considered cumulatively, the Ombudsman finds service failure in the landlord’s handling of the complaint and record keeping.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of reports of antisocial behaviour about a neighbour, and its response to counter reports received about the resident.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the complaint and record keeping.

Orders

  1. Within 4 weeks of the date of this report, the landlord must pay compensation of £250 to the resident. This compensation has been determined in line with the Ombudsman’s remedies guidance and is broken down as follows:
    1. £100 in compensation, in recognition of the distress caused to the resident by the landlord’s handling of reports of antisocial behaviour about a neighbour, and its response to counter reports received about the resident.
    2. £150 compensation, in recognition of the resident’s time and trouble, caused by failures in complaint handling and record keeping.
  2. The landlord must provide evidence to the Ombudsman that it has complied with the above orders, within 4 weeks of the date of this decision.
  3. Within 7 weeks of the date of this report, the landlord must:
    1. Arrange for a senior manager to initiate and complete a review of the ASB case, being mindful of the issues surfaced during this investigation. Thereafter, to give directions to its housing team regarding the future management of this case. The reviewing manager must have had no prior involvement in the case to date.
    2. Following its case review, the landlord should endeavour to meet with the resident to discuss next steps and offer additional support as may be relevant. It may be of benefit for the landlord to provide advocacy support, to rebuild the tenant and landlord relationship.
    3. Review its recording keeping on this case. In particular, the landlord should consider how it ensures that all evidence requested by the Ombudsman is provided on first request. In addition, it should consider how it presents that information, so that its actions are clearly evidenced. Where learnings are identified, the landlord should commit to bringing improvements into its operations within 3 months of the date of its review.
  4. The landlord must provide evidence to the Ombudsman that it has complied with the above orders, within 7 weeks of the date of this decision.

Recommendations

  1. The landlord should endeavour to meet with the resident to discuss her concerns about its communications, understand her reasons for bypassing its complaint’s process, and agree a way to work together in the future. The landlord may wish to consider using third-party advocacy services to support these discussions.