Waverley Borough Council (202223467)

REPORT

COMPLAINT 202223467

Waverley Borough Council

21 December 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

The complaint is about the landlord’s response to the resident’s:
1. reports of anti-social behaviour (ASB).
2. queries about the back garden boundary.
The Ombudsman has also investigated the landlord’s complaint handling.

Background

The resident is a flexible tenant of the landlord, which is a local authority. The property is a 1 bedroom, ground floor flat with a shared back garden. The landlord is aware that the resident has mental health issues.
Due to the resident’s mental health issues, a friend acts as her representative. For the purposes of this report, unless it is otherwise necessary to distinguish between them, all communications from the resident and the representative are referred to as coming from the resident.

Policies and procedures

The landlord’s ASB policy says:
1. ASB can include harassment, intimidation, aggressive or threatening language and behaviour and other criminal behaviour.
2. It will prioritise cases according to severity. It will complete an initial risk assessment and provide an immediate response to “very serious” reports, by making an appointment within 1 working day. For all other reports, it will arrange a mutually convenient time for an appointment.
3. An action plan will be agreed with the resident. It will take reasonable and proportionate action which may include mediation, acceptable behaviour contracts, home visits, good neighbour agreements and warning letters.
4. It will take a multi-agency approach and work with Police and relevant multi-agency forums to prevent and tackle ASB.
5. Risk assessment tools are used to quickly identify the most vulnerable victims to ensure they receive a higher level of support. It will work with its partners to help the most vulnerable members of the community to be safe and stay safe. In more serious cases it can fit extra security measures and arrange a temporary or permanent move.
6. It will keep residents informed about what is happening through the case on a regular basis. An appropriate level of contact will be agreed with the resident at the action plan stage.
7. When a case is closed, a letter will be sent to the resident with the reasons for this.
The landlord’s complaints policy says a complaint is an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the landlord. Its complaints procedure says that it will acknowledge complaints within 3 working days and respond to level 1 complaints within 10 working days and level 2 within 15 working days.

Summary of events

On 7 July 2020 the landlord told the resident that, historically, the back garden had been allocated to the neighbour but it had agreed the resident would be allocated the first 2 metres for privacy.
In March 2021 the resident reported ASB by her neighbour including a note put in her letterbox, erratic behaviour, banging and drug use.
The resident again reported ASB by her neighbour on 13 December 2021. Three days later she said she was being harassed and the landlord had not divided the garden as promised. She had been diagnosed with mental health issues and the situation was impacting her recovery. Previous emails and calls had not been responded to and her only option was to pursue an official complaint.
The landlord called the resident on 17 and 20 December 2021 and referred the case for mediation. The following month the mediation company said that neither party had responded to its contact attempts so this could not be progressed.
In January and February 2022 the landlord noted that it tried to contact the resident for an update on 10 occasions, but had received no response. It wrote to the resident on 16 March 2022 advising that the ASB case would be closed as no incidents had been reported since December 2021.
The resident reported that ASB from the neighbour had started again on 22 April 2022 and they had put a note in her letterbox, which she would send a copy of. The landlord said it would look into the matter and send diary sheets, which it did the same day and it would try to collect these at the end of May 2022.
On 19 May 2022 the resident reported that the neighbour had taken over her part of the garden. There had been arguments, including one where she was threatened and pushed; which had been reported to the Police. The landlord responded the following day and asked her to provide the crime reference number. It advised her not to have any contact with the neighbour and to report further incidents to the Police. It said it would contact her that afternoon and noted that it called the resident 3 days later and left a message requesting a call back.
The landlord called the resident on 7 July 2022 and noted that she was tearful during the call. She said the landlord had agreed to help her move the previous year but nothing had happened regarding this. The same day the landlord made internal enquiries about a move for the resident in light of a doctor’s letter dated 6 June 2022; which confirmed her mental health diagnosis and said that problems with the neighbour were making her symptoms worse. Eight days later the landlord told the resident it would complete a management report to increase her banding and agreed to send out a transfer form for her to complete.
On 15 July 2022 the landlord had contact with the Police regarding the ASB and they said there was little they could do.
In August 2022 the landlord agreed to meet with the resident on 5 September 2022. This meeting went ahead and the following points were discussed:
1. The landlord provided its own boundary plan of the garden and said it would approach the neighbour and request half of the garden be returned to the resident, as per the plan provided. The plans referred to, that have been provided to this Service are not title plans and not attached to the tenancy agreement but used by the landlord to record the boundary line in shared gardens.
2. The resident reported an incident where the neighbour had banged on the ceiling in response to her smoke alarm going off, which she said was very sensitive. The landlord made internal enquiries regarding this and agreed to move one of the smoke alarms.
3. The resident provided the completed transfer application form and the landlord agreed to complete the management report supporting her rehousing application. This was submitted internally on 12 September 2022 and agreed and confirmed to the resident the following day.
In October 2022 the resident said:
1. She was concerned about how long the issues had been going on. The landlord said there had been a delay in meeting with the neighbour but this would be happening that week. It would give the neighbour 7 days to remove their personal items from the resident’s section of the garden and return the area to her.
2. She wanted the landlord to put up a boundary fence to separate the garden and evict the neighbour. The landlord replied that it would not put up a fence to mark the boundary and the threshold for evicting residents was very high and only happened in the most serious of cases.
3. She did not have anyone to help her move. The landlord agreed to try and secure funding to assist with removal costs, which it did that month.
The same month, the landlord met with the neighbour, who denied using drugs. They did not agree to the landlord’s proposal to split the garden in half and said they were seeking legal advice, which the landlord agreed to allow them 2 weeks to do. The landlord updated the resident and she replied that she had no choice but to start the official complaints procedure, due to the lack of action by the landlord.
In November 2022 resident asked the landlord for an update as she had received no contact and her mental health had declined. She was unable to move because of this and the only way the landlord would take action was to submit a formal complaint. The landlord made enquiries with medical professionals the same month regarding the decline in the resident’s mental health.
In early December 2022 the landlord said that it had received a complaint about the garden issue, which had to be investigated. The landlord communication did not specify, but the Ombudsman has assumed this was in reference to a complaint from the neighbour. Later that month it updated the resident that a letter dated 7 July 2020 (referred to above) had been found which confirmed that she had been allocated the first 2 metres of the garden. This did not match what was on the plans and so when she had asked the landlord to look into this in August 2022, it had given her the information it believed to be correct. It had since decided that she would be allocated the first 2 meters as originally stated and provided details of how to make a complaint about this if she was dissatisfied.
On 20 December 2022 the resident reported that the neighbour had posted an abusive Christmas card in her letterbox and the landlord asked the resident to provide a copy of this. The resident provided this on 16 January 2023 and reported that the neighbour was using and dealing drugs, but she could not prove this.
On 5 January 2023 the resident made a complaint to the landlord, which said:
1. She had reported ASB by the neighbour but this had not been resolved and she wanted it to take enforcement action.
2. She had only been allocated 2 meters of the 7.5 meter garden, with the rest being allocated to the neighbour, with no reason given. It had provided a plan that showed the garden was split in half equally. She wanted the landlord to investigate and provide a fair outcome; including allocating her an equal portion of the garden.
The landlord acknowledged the complaint on 24 January 2023 and told the resident that it would be investigated under level 2 of its complaints procedure because she had raised the matters previously and it aimed to respond by 2 February 2023. The resident replied raising concerns about the member of staff allocated to investigate the complaint not being impartial and a possible conflict of interests.
On the same day the landlord said it would write to the neighbour regarding the abusive Christmas card. It advised against making allegations of drug dealing without evidence, as this could make the issues with the neighbour worse. The allegation of drug dealing had been put to the neighbour previously and they had denied this, which made it difficult to reach a conclusion. The following day the landlord issued the neighbour a warning for breach of tenancy and told the resident it had done this. It said there was a 3 step warning process in a 12 month period before legal action could be taken. This was the first warning as there was no evidence of other warnings issued within the last 12 months.
On 26 January 2023 the landlord provided the resident with a revised boundary map showing that she had been allocated the first 2 metres of the back garden.
The landlord provided its level 2 complaint response on 2 February 2023, which said:
1. It had done everything possible to resolve the difficult relationship between her and the neighbour.
2. In 2020 she had been told she would be allocated the first 2 metres of the back garden and sole use of the front garden. As she had not challenged the garden allocation at that time, the original arrangement should remain unchanged.
3. It acknowledged there had been a lack of consistency in allocating garden space and so it was preparing a formal policy on this and would provide new residents a plan showing which section of the back garden they had been allocated.
At the end of February 2023 the landlord noted there had been no further incidents and the case would be closed. The following week the resident provided photos of a fence put up by the neighbour in the back garden and asked if this was allowed as it restricted her access to a shared washing line.
In August and September 2023 the resident made further reports of ASB to the landlord, including drug use and noise nuisance by the neighbour. In a recent update to this Service, the resident advised that the ASB was ongoing and continuing to impact her mental health.

Assessment and findings

Scope of investigation

The resident has asked the Ombudsman to help resolve an issue raised with the landlord in August 2019, regarding reimbursement of a gas bill, but she has not yet raised this matter with the landlord as a formal complaint. In accordance with paragraph 42(a) of the Scheme, the Ombudsman may not consider complaints which have not exhausted the landlord’s complaints procedure. As this matter has not been considered or responded to by the landlord as part of its formal complaints procedure; it falls outside of the scope of this investigation. The resident has been advised that she may wish to approach the landlord to make a formal complaint about this matter; however, due to the length of time that has passed, the landlord may decline to investigate this.
The resident has reported that the matters raised in her complaint have had a negative effect on her mental health. The Ombudsman does not doubt the resident’s comments, but it is beyond the remit of this Service to make a determination on whether there was a direct link between the landlord’s actions and the resident’s ill-health. The resident may wish to seek independent advice on making a personal injury claim if she considers that her health has been affected by any action or failure by the landlord. While we cannot consider the effect on health, consideration has been given to any general distress and inconvenience the resident experienced as a result of any service failure by the landlord.

Response to the resident’s reports of ASB

The landlord dealt with the resident’s concerns regarding her neighbour as ASB, which was appropriate and in line with its ASB policy, as detailed above. When the resident reported ASB in March 2021, there is no record that the landlord responded or took any action to address this until she made a further report 9 months later. This would have left the resident feeling ignored and amounts to maladministration.
From the records provided, it is not clear how the landlord prioritised the resident’s ASB reports. There is no evidence that it completed any risk assessments, as committed to in its ASB policy detailed above. The lack of risk assessments meant the landlord was not able to identify and manage any potential risk of harm to the resident. This was particularly important in this case in light of the resident’s mental health issues and the impact she said this matter had on her health.
The landlord engaged with Police and medical professionals as part of this case, which was appropriate and in line with its ASB policy to adopt a multi-agency approach. However, had it carried out detailed risk assessments as it commits to, it may have been able to identify other support avenues to explore and signpost the resident to. The landlord’s failure to carry out risk assessments in this case amounts to maladministration and an order has been made below for the landlord to provide staff training on ASB case handling, in line with its ASB policy.
The landlord implemented and considered a number of the actions set out in its ASB policy which were appropriate in the circumstances. It also implemented a practical solution to an issue regarding a smoke alarm, which was sensible. It agreed to support the resident with her rehousing application on receipt of a doctor’s letter, which showed that it took the matter seriously. When the resident asked the landlord to evict the neighbour, it explained the challenges around this, which was sensible to help the resident understand the limitations on the landlord. It explained a 3 step warning process in January 2023; however, this is not set out in its ASB policy, which would be appropriate and so an order has been made below for the landlord to review and update its ASB policy accordingly.
There is no evidence that an action plan was agreed with the resident as is committed to in the landlord’s ASB policy, until a meeting was held in early September 2022. There is no record that frequency of contact was agreed with the resident at any point, as is committed in its ASB policy. The landlord made proactive contact with the resident in early 2022 for updates but this was not consistent from April 2022 onwards and resulted in the resident chasing for updates. This amounts to maladministration and would have left her feeling uncertain about what was happening, and as though the landlord was not taking her concerns seriously. Orders have been made below for the landlord to apologise to the resident and pay her £400 compensation for its response to her reports of ASB.
When the landlord closed the resident’s ASB case in March 2022, it wrote to her to confirm the reasons for this, which was in line with its ASB policy, as detailed above. However, when it closed her ASB case in April 2023, there is no record that it wrote to tell her this. The landlord was entitled to reach the conclusion that the case should be closed, but it should have properly communicated this to the resident and explained how it reached this decision, as per its policy commitment. Its failure to do this amounts to maladministration and an order has already been made for the landlord to provide staff training on ASB case handling, in line with its policy.
As the resident has reported that the ASB is ongoing and continuing to impact her mental health, it is important that the landlord take steps to comply with its ASB policy to investigate this and support the resident. An order has been made below for the landlord to contact the resident to discuss the ongoing issues, complete a risk assessment, which takes account of her mental health issues, and agree an action plan in line with its ASB policy.

Response to the resident’s queries about the back garden boundary

The landlord has told this Service that it does not have a policy for allocating garden space to residents who live in flats and the arrangements for garden allocations vary across the borough. It has recognised the need for consistency in this area and has confirmed that it is preparing a garden allocation policy. As there is no current policy to measure the landlord’s actions against, the Ombudsman will consider whether its actions were fair and reasonable in the circumstances.
The resident has said she feels it is unfair that the back garden is not split in half equally. While frustrating for her, the landlord’s decision was reasonable as she had been allocated sole use of the front garden in addition to a portion of the back garden. The landlord said that it explained this in its original email in July 2020; however, it did not clearly set this out until its final complaint response in February 2022. This left the resident confused over how the landlord had reached this decision and with the view that the split was unfair; which was understandable
The landlord’s communication in relation to this issue has been inconsistent, which has led to confusion and disappointment for the resident. Despite a decision being made in 2020 regarding the split of the garden, the landlord failed to properly record this on its systems for future reference. This led to the landlord giving the resident incorrect information at a later date and subsequently having to backtrack on the proposal to split the back garden equally.
The landlord clearly had a record of the garden division on its own plans, which is a sensible approach to take, but it must then ensure that these are updated when decisions about the division of land are made. It does not appear that the plans were updated in 2020 when the original decision was reached and this poor record keeping has led to misinformation being given to the resident, which was upsetting for her.
The landlord acknowledged there had been miscommunication regarding the garden boundary and identified learning as a result of this, which was positive. The action the landlord is taking to implement a policy in relation to this is positive and will ensure consistency in its approach, which will benefit residents more widely. While the landlord has taken positive steps in that regard, it failed to acknowledge the detriment caused to the resident or consider any form of redress. This amounts to maladministration and orders have been made for the landlord to apologise to the resident and pay her £250 compensation.
In early 2023 the resident asked the landlord whether the neighbour was allowed to install a fence along the boundary. The landlord has told this Service that it approved this work, but there is no record that it informed the resident. She has raised concerns about this restricting access to the shared washing line, which is an understandable concern and again, there is no record that the landlord has responded to this. An order has been made below for the landlord to provide a written response to the resident regarding this matter, including how it will address her restricted access to the shared washing line.

Complaint handling

The resident made a formal complaint to the landlord in January 2023 but, from the records provided, she had already made reference to making a complaint in December 2021, October 2022 and November 2022. While she did not expressly ask the landlord to log a formal complaint at these times, she had expressed dissatisfaction and so in line with the landlord’s complaints policy set out above, it would have been appropriate for it to progress a formal complaint. Its failure to do this meant there was a delay of over 1 year in the landlord considering the resident’s concerns as part of its complaints process. This amounts to maladministration and would have left the resident feeling ignored and as though it did not want to resolve the issues.
The Ombudsman’s Complaint Handling Code (the Code) says that landlords must only escalate a complaint to stage 2 once it has completed stage 1. In this case, the landlord progressed the resident’s complaint straight to level 2 and explained this was because she had raised the issues previously. The Code explains that a complaint should be raised when the resident expresses dissatisfaction with the landlord’s response to a service request. Therefore, it is necessary that matters have been raised and responded to previously, to enable the landlord to progress a complaint investigation. The landlord’s decision to progress the resident’s complaint straight to level 2 meant that there was no opportunity for internal review before escalation to this Service. This was a missed opportunity to put things right for the resident at an earlier stage and amounts to maladministration. An order has been made below for the landlord to provide staff training on complaint handling in line with its policy and the Code.
There is no record that the landlord responded to the resident’s concerns about a lack of impartiality and a possible conflict of interests. Where concerns of this nature are raised, it is important that landlords provide a response to show it has considered these and taken them seriously. This is particularly important in relation to complaint investigations as these are meant to provide a fair and impartial review of previous actions and decisions made by the landlord. The landlord’s failure to address the resident’s concern would have resulted in her losing faith in the complaints process.

Determination (decision)

In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s response to the resident’s:
1. reports of ASB.
2. queries about the back garden boundary.
3. formal complaint.

Reasons

The landlord did not comply with its ASB policy in its handling of the resident’s ASB reports. It failed to carry out risk assessments, was delayed in agreeing an action plan and failed to notify the resident in writing of case closure in April 2023. While the landlord made some proactive contact for updates, this was not consistent and resulted in the resident chasing it for updates. The resident told the landlord about the impact this matter was having on her mental health and while it took some actions in respect of this, it did not do enough to properly consider and respond to this issue throughout the period of this investigation.
The landlord’s decision to allocate the resident the first 2 metres of the back garden and sole use of the front garden was reasonable. However, it did not clearly explain this until the final complaint response nearly 2 years after the decision was made, which left the resident feeling as though the allocation was unfair. The landlord did not properly record its decision regarding the back garden split in 2020, which led to misinformation being given to the resident subsequently. This caused confusion and disappointment when it appeared to backtrack on an agreement to split the garden equally. The landlord recognised it had given conflicting information and identified learning but failed to acknowledge the detriment caused to the resident, or consider redress for this.
The landlord delayed in progressing a formal complaint for the resident by over 1 year, despite her expressing dissatisfaction on a number of occasions. When it did progress the complaint, it took this straight to level 2. This was not in line with the Ombudsman’s Complaint Handling Code and meant it missed the opportunity to internally review its response before escalation to this Service. This resulted in a missed opportunity to put things right for the resident at an earlier stage. The landlord did not address the resident’s concerns about staff not being impartial and having a conflict of interest, which meant she lost faith in the process.

Orders and recommendations

Orders

Within 4 weeks the landlord is ordered to:
1. Apologise to the resident for its response to her reports of ASB, queries about the back garden boundary and complaint handling.
2. Pay the resident £950 compensation, made up of:
  1. £400 for its response to her reports of ASB.
  2. £250 for its response to her queries about the back garden boundary.
  3. £300 for its complaint handling.
3. Contact the resident to discuss the ongoing ASB, carry out a risk assessment, which takes account of her mental health issues, and agree an action plan in line with its ASB policy. A written update to be provided to the resident including timescales for actions to be completed and ongoing contact to be made.
4. Provide a written response to the resident about whether the neighbour was allowed to install a fence along the back garden boundary and what, if any action it will take in response to this restricting her access to the shared washing line.
The landlord to provide evidence of compliance with the above orders to this Service within 4 weeks.
Within 8 weeks the landlord is ordered to:
1. Provide staff training on:
  1. ASB case handling in line with its ASB policy.
  2. Complaint handling in line with its complaints policy and the Ombudsman’s Complaint Handling Code.
2. Review and update its ASB policy to include the 3 step warning process it adopts.

The landlord to provide evidence of compliance with the above orders to this Service within 8 weeks.