Tendring District Council (202302247)

REPORT

COMPLAINT 202302247

Tendring District Council

31 July 2024

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

The complaint is about the landlord’s handling of the resident’s reports of antisocial behaviour (ASB).
The Ombudsman has also considered the landlord’s complaints handling.

Background

The resident is a secure tenant of a 1 bed bungalow. She lives there with her husband who is her carer. Her tenancy started in July 2018. The landlord is a local authority. The resident has several physical and mental health conditions including lymphoedema, diabetes, PTSD and OCD.
Since January 2019, the resident has reported ASB from her neighbours. She has alleged that they have been verbally abusive towards her and her husband, that they caused excessive noise and that they made unpleasant comments about her. The neighbours have made counter-allegations about the resident and her husband during this time.
In April 2023, the resident wrote to the landlord and said that her neighbour had looked through her window on 13 April 2023 when she was in a state of undress. She also said that the neighbour had driven their car close to her disability access ramp on 4 April 2023, that they had been verbally abusive to her husband and had sprayed water from their hosepipe, through her open window, on 3 March 2023.
It is unclear when the resident raised a complaint about this as neither the landlord nor the resident have provided this Service with a copy of the complaint letter. However, this Service raised a complaint with the landlord on the resident’s behalf on 18 April 2023. We asked for a response by 11 May 2023.
On 12 May 2023, the landlord issued the resident with its stage 1 complaint response. It said that:
1. It was investigating the resident’s reports, and it was liaising with the police to see whether they were taking further action in relation to the resident’s reports.
2. It had arranged to visit the resident on the 18 May 2023 to discuss the issues reported and to assess what action was necessary.
3. It also enclosed an action plan which:
  1. asked the resident to keep a record of all incidents on the witness diary forms provided and to call the police should she witness criminal behaviour.
  2. Said it would investigate her complaint and contact other agencies. It said that it would contact the perpetrator and keep her updated about the investigation.
4. It asked that she report any further incidents of nuisance or threatening behaviour to the police.
On 16 May 2023 the landlord liaised with the police in relation to the ASB.
The resident sent a letter to the landlord dated 16 May 2023 as she was unhappy with the stage 1 complaint response. She said there were some inaccuracies in the letter and that she wanted the landlord to evict her neighbours. She said that she is ill, and the situation was stressful for her. She asked for a response within 25 working days.
The landlord met with the resident on 18 May 2023 when the resident provided a completed witness diary sheet containing details of further ASB incidents.
On 24 May 2023, the landlord sent the resident an updated stage 1 response to her complaint.
1. It apologised both for the delay in responding to her complaint and because some of the details in the letter of 15 May 2023 did not reflect how the resident viewed the incidents.
2. It said that it would not be able to evict the neighbour from their home based on the evidence provided. This was because the case would need to go to court, and the court’s threshold of evidence for evicting a tenant is high. The courts will only evict tenants as a last resort, and when the landlord has exhausted all other reasonable alternatives.
3. It said that it would continue to work with other agencies, including the police, to find a solution to the problem. It had spoken to the resident to see how it could access extra support for her. However, the resident said that she was engaging with the Community Mental Health Team (CMHT) and her psychologist. She also received support from her GP and other health services and did not require additional support.
4. The police had asked the resident’s neighbours to attend a voluntary interview to discuss the alleged incidents.
5. As the resident had supplied witness diary forms relating to incidents of noise between 28 April 2023 and 3 May 2023, it would pass the forms to its Environmental Health Team to assess if the threshold met the level of statutory nuisance.
6. It would also speak to the neighbours following the police investigation.
On 31 May 2023, the resident wrote to the landlord to ask it to escalate her complaint to stage 2 as she was unhappy with the updated response.
The landlord received counter-allegations from the neighbour on 5 June 2023.
The resident provided further diary sheets on 8 June 2023 alleging noise nuisance from neighbours. The landlord referred this to its Environmental Health Team.
The landlord reviewed the case on 27 June 2023. The police had met with the neighbours on 14 June 2023 but decided to take no further action. The landlord spoke to the resident who asked if they could take legal action against the neighbours. The landlord made enquiries of its legal team who recommended that both parties consider mediation.
In July 2023, the landlord put in a request to erect a chain-link fence in the communal lawned area between the two properties.
On 11 August 2023, this Service wrote to the landlord as it had not issued its stage 2 complaint response, following the resident’s request of 31 May 2023.
On 23 August 2023, the landlord acknowledged the resident’s stage 2 complaint request and said that it hoped to respond by 31 August 2023.
On 30 August 2023, the landlord issued its stage 2 complaint response to the resident’s complaint. It asked for further information from the resident and enquired as to what remedy she would like to see. It confirmed that it would continue to investigate the complaint. It would be in contact with her over the next week.
On 1 September 2023, the landlord made an appointment to meet with the resident on 11 September 2023 and the police. The resident cancelled the appointment on 8 September 2023 as she was unwell.
During October 2023, the resident was away from home as she was receiving treatment in hospital. There was some difficulty in the landlord rescheduling the meeting with the police due to availability.
On 6 November 2023 the landlord and the police attended the resident’s home unannounced. They discussed with her the ASB issues and suggested mediation. The resident said that she would like one-off mediation to involve the landlord and the police. The landlord said that it would make enquiries and respond to her.
The landlord sent a letter to the resident on 9 November 2023. It said that:
1. It would put up a fence in the communal front garden to form a physical barrier which would stop the neighbours from walking in front of her windows.
2. It also discussed some matters that were the subject of a ASB report against the resident, which are not the subject of this investigation.
3. The resident had said that she was initially receptive to mediation, but later that day she left a voicemail to the landlord to say that she no longer wished to continue with mediation.
On 10 November 2023, the resident confirmed that the landlord had put up the chain link fence and she was happy with the job.
On 1 December 2023, this Service wrote to the landlord to advise that the stage 2 complaint response letter it had sent did not meet the requirements of the Ombudsman’s Complaints Handling Code. We asked that the landlord issue a Code compliant letter by 13 December 2023.
On 5 December 2023, the landlord wrote to the resident to say that it was closing her ASB case as there was no further action to take at that time.
On 12 December 2023, the landlord issued its amended stage 2 complaint response. It said that:
1. It acknowledged that it should have been clearer with its complaint record and improve its timeframes for responding to complaints.
2. Complaints about ASB are often difficult to investigate and it can only act in response to evidence and sometimes it can take time to gather evidence. Responses must be proportionate to the scale of the problem and the threshold for taking legal action had not been met.
3. It was satisfied that it had dealt with the case appropriately. It had closed the case as the resident had not reported any new incidents since 10 November 2023.
The resident was unhappy with the landlord’s response and asked this Service to investigate her complaint.

Assessment and findings

The Ombudsman’s Dispute Resolution Principles are:
1. Be fair
2. Put things right
3. Learn from outcomes

This Service will apply these principles when considering whether any redress is appropriate and proportionate for any maladministration or service failure identified.

Scope of the investigation

The landlord and resident have provided evidence to this Service in support of the fact that the resident had made reports of ASB over several years, with documentation dating back to 2019. There is evidence too, of the landlord issuing earlier warning letters to the neighbours and reports that show what actions the landlord has taken independently and in collaboration with the police in response to the residents reports of ASB.
Paragraph 42c of the Scheme states that “The Ombudsman will not investigate complaints which, in its opinion, were not brought to the attention of the member as a formal complaint within a reasonable period, which would normally be within 12 months of the matters arising”.
When making a formal complaint contemporaneously, it makes it possible for a thorough investigation of the issues and increases the chances of the landlord resolving the matter satisfactorily and at the earliest opportunity. Making a formal complaint at the time, means that any staff concerned are available to comment, evidence is more likely to be available and that alleged perpetrators have a chance to respond to the allegations and where appropriate, to change their behaviour to put things right.
The Ombudsman does not investigate the landlord’s handling of historic matters for these reasons.  After carefully considering all the evidence, in accordance with paragraph 42c of the Scheme, the Ombudsman determines that much of the historic issues raised in this case are outside of the jurisdiction of this Service. In not considering the earlier reports, this does not mean that the Ombudsman does not believe that the resident has reported ASB for a significant period, or that the situation has not had a profound impact on her.  However, for the reasons described and as supported by the Scheme, this investigation will focus on events from March 2023 only.
In her correspondence with this Service, the resident has also referred to ASB incidents that took place after the landlord had completed its internal complaints process. In the interest of fairness, the scope of this investigation is limited to the issues raised during the resident’s formal complaint. This is because the landlord needs to be given a fair opportunity to investigate and respond to any reported dissatisfaction with its actions prior to the involvement of this Service. Any new issues that have not been subject to a formal complaint can be addressed directly with the landlord and progressed as a new formal complaint if required.

The landlord’s handling of the resident’s reports of ASB

It is clear from the resident’s detailed correspondence with the Ombudsman that she has extensive concerns about the landlord’s management of ASB reports over a significant period, dating back to her taking up occupation at the property back in 2011. The background section above had explained the Ombudsman’s remit, that any formal Ombudsman investigation is limited to those issues that have progressed through a landlord’s complaints process. As such, the assessment of this case will focus solely on the ASB case opened in May 2023 and closed in December 2023, and the resident’s complaint in the context of this ASB case.
The Anti-Social Behaviour, Crime and Policing Act 2014 outlines that when responding to reports of anti-social behaviour, agencies must consider the effect that such behaviour has on victims and witnesses. It also says that agencies should recognise and consider the debilitating impact that persistent or repeated anti-social behaviour can have on victims, more so over a period.
The landlord’s ASB policy that was in place at the time of the complaint outlined the process the landlord would follow when it received a report of ASB. This says that it will contact the person reporting ASB within 10 working days to advise of the next steps. If it opens a case, it should prepare an action plan, provide diary sheets and speak with the alleged perpetrator. Where incidents include acts of a criminal nature, the complainant will be directed to the police.
The policy says that the landlord will look to resolve low level problems at the earliest opportunity, to prevent unnecessary escalation. It refers to tenancy management processes such as provision of advice, partner liaison and independent mediation. It says that reports will be assessed and dealt with by the investigation officer according to the risk status after completion of a risk assessment.
As the resident’s reports included incidents that could be considered criminal in nature, the landlord followed its policy by meeting the resident with the police. It also provided the resident with an action plan and diary sheets for her to complete, to obtain evidence in support of her case. It said that it would wait for the outcome of the police investigation before considering further action. It was open to the landlord to have investigated the resident’s ASB case alongside the police investigation in these circumstances. The landlord can use different interventions to address ASB that are not dependent on police action.
When the police decided that there was insufficient evidence to take any further action against the neighbours, the landlord reviewed the case and met with the resident to discuss the next steps. It also met with the neighbours to discuss the allegations and it interviewed other residents to see whether they were able to corroborate the ASB reports. It looked at practical solutions to resolve the dispute, which including putting up a fence through the communal grassed area of the two properties. It liaised with its legal team to enquire about legal remedies but was told that mediation would be more appropriate.
It suggested mediation but both parties were not in agreement with this. It liaised with its Environmental Health Team to consider whether the threshold for enforcement action had been reached. This was a suitable recommendation as such agencies can investigate if statutory noise nuisance has likely occurred, and landlords are then able to take more robust tenancy action in relation to their findings. These actions by the landlord followed its ASB policy and constituted basic good practice in cases where there has been lack of evidence at the time to show that ASB had occurred. When there were no further reports for a month, the landlord took steps to close the case and inform the resident of this.
While the resident’s frustration at the landlord dealing with each ASB report individually was understandable, ASB can take many forms and will often involve cases where the reported behaviour is sporadic. In such cases, a landlord can only investigate issues as they arise and must do so in a reasonable and proportionate way. The reporting party will often feel that the landlord has not taken their reports seriously or that it has taken too long to progress the case. However, it is important to note that the landlord is not responsible for any alleged unacceptable behaviour; instead, its role is to ensure that it responds to any reports it receives, following its policies and procedures and legal obligations. This will involve progressing through its ASB procedure, gathering and reviewing evidence and then taking actions proportionate to its understanding of such evidence.
In this case, the landlord determined that there was insufficient evidence to take any further action. Although the resident had completed diary sheets, the neighbours had made counter-allegations against them. Other residents were either not able or not willing to corroborate the resident’s reports. The neighbour had denied the allegations against them and there was no independent evidence to show that the neighbour was the perpetrator of the ASB.
It is common for tenants reporting incidents of ASB to believe that the landlord has the authority to take possession of their property. In practice, a social landlord does not have the authority to take possession of a property, unless granted this right through a court of law.
The landlord clarified its role through the complaint process, explaining that it will only progress down a legal route if the qualified opinion of its legal team believed that this was appropriate, given the evidence obtained. It had made these enquiries and its legal team had said that legal proceedings would be disproportionate. Such a process is consistent throughout the social housing sector. A landlord is understandably reluctant to go to court on insufficient evidence as this would have resource implications given that proceedings would be unlikely to result in a court making an order.
Sometimes where there is ASB relating to neighbour disputes, a resolution which suits all parties may not always be possible particularly where there are lifestyle differences. When the resident was unhappy with the landlord’s response that it had insufficient evidence to take legal action against the neighbour, it offered to support the resident with an application for rehousing, should she wish to consider this. While the resident did not wish to consider this, it was reasonable for the landlord to have explored this with her as a potential resolution.
Nonetheless, there were other steps the landlord could have considered. It lists overt or covert CCTV in its ASB policy as a tool for obtaining evidence. The landlord could have considered this, as the matter related to allegation and counter allegation without witness corroboration. The police had suggested an Acceptable Behaviour Contract, but the records provided do not show that the landlord considered or actioned this.
Further, the landlord has not provided records to this Service to show whether a risk assessment had been completed, particularly given the resident’s vulnerabilities and mental health needs. The landlord did take proper steps to discuss with the resident about accessing additional support, and the resident had told the landlord that she was linked in with health services and did not require this. The evidence does not show, however, that it did liaise with the mental health team when the resident reported a deterioration in her mental health relating to the issues with her neighbour. This would have demonstrated effective partnership working in line with its vulnerability policy.
There was also conflicting advice given to the resident by the police and landlord as to whether it would accept mobile phone recordings as evidence. The resident was also unclear about the use of CCTV and raised objections to her neighbours having CCTV when it had asked her to move hers. Social landlords usually inform residents that CCTV should only monitor up to the boundaries of a resident’s property, and this would not include any communal areas. The Ombudsman therefore recommends that the landlord considers providing residents with a CCTV policy or that information about use of CCTV is this is included in its ASB or Tenancy Management policy.
It is evident that this situation has been distressing for the resident and that she continues to report incidents of ASB to her landlord. However, the Ombudsman considers that, overall, the landlord followed its policies and procedures in responding to her reports of ASB and therefore makes a finding of no maladministration.

The landlord’s complaint handling

It is unclear from the information provided when the resident first reported the incidents in March and April 2023 to the landlord. Neither resident nor landlord have provided evidence of this. It is also unclear when the resident first raised this complaint with the landlord. The resident contacted this Service, and a letter was sent to the landlord on 18 April 2023 from this Service raising a complaint on the resident’s behalf. While the landlord did respond outside of the timescales we had given for a response by a day, this would not have caused significant detriment to the resident.
The landlord followed up its stage 1 response with an updated response on 24 May which outlined the steps the landlord had taken to address the complaint to date, which was reasonable.
The resident responded to both letters on 16 May and 31 May respectively asking that the landlord escalate her complaint to stage 2. The landlord overlooked this and did not escalate the resident’s complaint until asked to do so by this Service on 11 August 2023. Its response of the 31 August 2023 did not meet with the requirements of the Ombudsman’s complaint handling code as it did not “address all points raised in the compliant and provide clear reasons for any decisions, referencing the relevant policy, law and good practice where appropriate”. It also did not provide the resident with a decision on the complaint, the reasons for the decisions made, the details of any remedy offered to put things right or details of any outstanding actions. The landlord’s failure to provide an adequate response within a reasonable timeframe would have caused frustration for the resident, as well as her time and trouble in chasing it up.
This Service sent a letter to the landlord requesting a Code Compliant response. The landlord provided this on 12 December 2023, 3 months from the original deadline for response, which was unsatisfactory. While the landlord accepted service failure for its delays in responding to the resident’s complaint, it did not offer any redress in the form of any apology or compensation for these failings.
Overall, the landlord’s handling of the complaint was unsatisfactory and did not treat the resident fairly. The landlord:
1. failed to issue its complaint responses within its published timescales
2. did not respond to the resident’s request to escalate her complaint to stage 2.
3. In its initial stage 2 response, did not include a comprehensive review of how it responded to the resident’s complaint.
In the Ombudsman’s view, these complaint handling failings amount to maladministration.

57. The Ombudsman’s remedies guidance suggests compensation of between £100 and £600 is reasonable where there was maladministration that adversely affected the resident. The Ombudsman therefore considers that an amount of £300 is proportionate to recognise the impact caused on the resident. This includes an uplift considering aggravating factors, this being the resident’s disability and mental health needs, that would have meant that the failings had a greater impact on her.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration by the landlord in its handlings of the resident’s reports of ASB.

In accordance with paragraph 52 of the Scheme, there was maladministration by the landlord in its complaints handling.

Orders and recommendations

Orders

Within 4 weeks of the date of this report, the landlord is to pay the resident the amount of £300 to compensate her for her time, trouble, distress and inconvenience caused by the landlord’s ineffective complaints handling. The landlord is to provide confirmation to this Service once this payment has been made.

Recommendations

The landlord should consider reviewing its ASB or Tenancy Management policy to include clear information about residents’ use of CCTV and how to request permission for this.
It is recommended that the landlord considers carrying out updated staff training for its complaints team to ensure that complaint responses include the information outlined in the Ombudsman’s Complaint Handling Code.