BCP Council (201915205)

REPORT

COMPLAINT 201915205

Bournemouth Borough Council

20 April 2021

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

This complaint is about the landlord’s handling of the resident’s reports of anti-social behaviour (ASB).

Background and summary of events

Background

The resident is a secure tenant and the tenancy agreement began on 20 June 2005. The property is a one bedroom first floor flat and the landlord is a local authority.
The landlord has confirmed that it has recorded that the resident is undergoing treatment for his mental health and has a diagnosis of asperger syndrome.
The tenancy agreement requires the resident to ‘not do anything which may cause or would be likely to cause a nuisance to any neighbours’, ‘not cause harassment to neighbours’ and ‘not harass others on the grounds of their colour, race, nationality, ethnic or national origins’.
The landlord has an ASB procedure that confirms examples of ASB include ‘noisy neighbours’ and ‘verbal abuse, threats or harassment’. The procedure requires the landlord to assess the level of ASB on receipt of a report and to complete a risk assessment that includes reference to the complainant’s vulnerability. It describes the levels as:

Level 1 – evidence of danger to household and/or racial harassment

Level 2 – repeated incident or ongoing neighbour dispute

Level 3 – one-off ASB complaint

Level 4 – non-ASB complaint

For Level 1 cases, the landlord is required to contact the complainant within 24 hours and interview them within 48 hours, creating an agreed action plan. The procedure sets out options for the landlord to gather evidence by completion of diary sheets, installation of monitoring equipment, speaking to residents and liaison with the Police.

The ASB procedure outlines a range of actions that the landlord can take, including no action, advice, warning letters, perpetrator interview, referral to mediation, referral to ‘floating support’, referral to its ASB team, injunctions and possession action.
It states that it can consider an accommodation transfer if there is a threat to life, extreme ASB or racial harassment. It adds that residents ‘can also be advised to make an application through the housing register and assessed in the normal way if the anti-social behaviour is for example having a negative impact upon their health.’
The landlord has a housing register priority system of three bands – ‘gold’, ‘silver’ and ‘bronze’. The ‘gold’ priority includes residents who are ‘suffering from severe and/or persistent harassment or abuse’. The landlord’s lettings policy states that this will apply ‘providing evidence exists to substantiate the claim (e.g. from Police/Housing Officer), and re-housing is the most appropriate course of action’.

There is also an ‘emergency’ category where a need is so exceptional that it takes priority over all other applicants. The lettings policy states that this is where ‘substantial evidence’ exists of ‘threat of violence’ or ‘serious harassment’.

The landlord’s website describes a two stage complaints process with timescales of 20 working days for a stage one investigation and response and 15 working days for a stage two review and response. It adds that it will generally not investigate complaints about matters that the resident was aware of for more than 12 months before contacting it.
The resident’s complaint primarily concerns a nextdoor neighbour who is also a tenant of the landlord. This Service has not been provided with copies of the neighbour’s tenancy agreement but it would be reasonable to conclude that the same, or similar, tenancy conditions apply.

Summary of Events

The landlord’s housing records show that the resident began to allege ASB directed by his nextdoor neighbour to him and his wife from 9 May 2013. In response to this initial report of verbal abuse, the landlord recorded actions over the following three months:
1. recorded the impact of the incident on the resident, classed the allegation as a ‘Level 3’ incident, completed a victim assessment matrix and made an action plan on the date of the ASB report
2. interviewed the alleged perpetrator and noted counter allegations made
3. spoke to the resident and visited him when he expressed dissatisfaction with the initial handling of the case
4. interviewed the neighbour for a second time when further allegations were made by the resident
5. undertook a case review when it was concluded that this was a neighbour dispute not ASB
6. completed a second victim assessment, leading to a mental health nurse referral
7. recorded receipt of some CCTV footage that it noted showed both the neighbour and the resident shouting at each other (and later noted the neighbour had spat towards the resident’s front doorstep)
8. made a referral to its housing options department for an urgent assessment of the resident’s re-housing priority which was completed the same day and led to a ‘silver’ priority due to medical need (and a note that ‘gold’ would be awarded if there was ‘persistent/severe’ harassment)
9. interviewed the neighbour for a third time and requested that she stop any behaviour that was threatening or intimidating (it updated the resident accordingly).

The landlord spoke to the resident on 18 July 2013 who advised there had been no further incidents and it placed the case on hold from 15 August 2013 due to no further reported incidents.

The landlord recorded receipt of a medical letter from the community health team on 20 December 2013 that supported a move for the resident on the grounds it would assist his mental health treatment. Its internal records show that it passed this information to its housing options team on 23 December 2013 but acknowledged this was unlikely to change the re-housing priority as no new incidents of harassment had been reported to it.
The landlord recorded a report on 10 June 2014 from the resident that he had to go into hospital with ill health due to the stress of dealing with his neighbour who he alleged had been verbally abusive and made threats. In response to this report, the landlord recorded actions over the following three months:
1. completion of a risk assessment with the report being classed as a ‘Level 1’ incident
2. completion of a victim assessment with referral of the case to the Police and other colleagues
3. an interview with the resident when it noted that diary sheets were provided by the resident and that a mental health support referral was made
4. a management move referral was made but the resident subsequently stated that it had been declined
5. completion of a second victim assessment which led to a floating support referral and the ASB case was noted as placed on hold.
The landlord’s housing records show that the resident made a report on 1 April 2016 of a confrontation with the nextdoor neighbour regarding use of the communal garden. The landlord recorded that it conducted an interview with the resident on 4 April 2016 and planned to visit on 8 April 2016 to discuss the matter further. No further evidence related to this report has been seen by this Service.
The landlord’s housing records show that the resident made an allegation on 15 September 2016 that his nextdoor neighbour and another neighbour had attacked his wife due to her ethnicity (it is not clear from the notes whether the attack was verbal or physical). The landlord recorded the following actions:
1. completion of a risk assessment that classed the allegation as a ‘Level 1’ incident so was passed to its ASB Team
2. a referral was made to a mediation company on 13 October 2016 who updated the landlord on 25 November 2016 to report that both parties had engaged and made an agreement so this would be monitored.
The landlord’s records show that it made a referral to the resident’s GP in March 2017 due to concerns for his health.
The landlord recorded a conversation with the resident on 13 November 2017 when he reported the nextdoor neighbour had shouted racial verbal abuse.
The landlord recorded a conversation with the resident on 26 February 2018 when he reported the nextdoor neighbour had verbally abused him and his wife and used racist language. The landlord recorded actions over the following two weeks:
1. advice was given to the resident to report any incidents of racial abuse to the Police and to provide completed diary sheets
2. completion of a victim assessment
3. referral for floating support and a plan to interview the neighbour and liaise with the Police.
The landlord recorded a conversation with the resident on 20 December 2019 when he told it that he had obtained CCTV footage showing his nextdoor neighbour dealing drugs.
The landlord recorded a conversation with the resident on 28 January 2020 when he advised that he had found some CCTV footage of an incident two years ago when his neighbour had abused his wife. The landlord recorded the following actions:
1. asked the resident on 25 February 2020 to report up to date incidents
2. advised the resident on 10 March 2020 that it had not found ASB on the footage
3. noted on 13 March 2020 that the Police had advised they had seen the nextdoor neighbour knocking over a plant pot but then putting it back and that no damage was witnessed
4. welfare concerns passed to the GP on 9 April 2020
5. offered further mediation to the resident on 9 April 2020.
The resident submitted a complaint to the landlord on 21 March 2020. He raised the following concerns:
1. the landlord had done nothing to tackle ASB from a neighbour which consisted of racial abuse towards his wife, kicking their possessions in the communal area and intimidation
2. dissatisfaction with the landlord’s management of his eight-year case
3. the landlord had diary sheets, footage of a physical assault and Police reports but had still not moved the resident or given the household ‘gold’ priority
4. he had been approached by the landlord about his CCTV device breaching his neighbours’ rights.
The landlord issued a stage one complaint response to the resident on 9 April 2020. It concluded that:
1. it had reviewed the handling of the resident’s reports about his neighbour over previous years and found that they were all investigated in line with its ASB procedures
2. the CCTV footage provided by the resident did not show ASB or drug dealing as the resident had claimed
3. the advice it had given on the CCTV device was accurate but it would visit, once pandemic lockdown restrictions allowed, to review the CCTV device location and may decide the resident can retain it were it to meet guidelines and policy
4. the household was in ‘silver’ re-housing priority based on the latest information provided but it would consider any further evidence submitted and recommended the resident use the Homeswapper service.
The resident wrote to the landlord on 15 April 2020. He asked for his complaint to be escalated on the following grounds:
1. he was already using the Homeswapper service and medical reports had already been offered to the landlord on many occasions
2. the review of the historic ASB reports did not mention the diary sheets and video footage evidence that the landlord was given
3. his CCTV camera was now pointing only at his garden area
4. physical assaults on his wife had impacted her mental health.
The landlord recorded a conversation with the resident on 23 April 2020 when he reported ongoing ASB and an incident on 17 April 2020 that he stated showed his nextdoor neighbour was turning other neighbours against him. The landlord recorded the following actions:
1. completion of a risk assessment on 23 April 2020 that classed the allegation as a ‘Level 2’ incident
2. noted on 5 May 2020 that it had passed an update to the housing options team
3. noted on 28 August 2020 that the resident had refused mediation.
The landlord issued its final complaint response to the resident on 11 May 2020. It concluded that each report of ASB from the resident had been dealt with in accordance with its policy. It added that it had taken proportionate action and confirmed that a medical report would be submitted to assist with the housing application. A report was attached to the response which set out the handling of ASB reports the landlord had received about his neighbour as follows:
1. 9 May 2013 – allegation of verbal abuse in communal area; CCTV was reviewed, Police engaged with and neighbour was interviewed – case closed as mediation had helped and no further reports made
2. 11 June 2014 – allegation of racial abuse by neighbour towards resident’s wife; neighbour was interviewed and Police engaged with but no evidence was obtained so neighbours were advised to keep away from each other – a management transfer referral was made but refused by the landlord due to lack of evidence
3. 16 February 2017 – allegation that neighbour had banged on door and gained entry to resident’s property; CCTV evidence was obtained and neighbour admitted behaviour with counter allegations made – mediation led to agreement by both parties and a GP referral was made
4. 9 January 2020 – allegation of ongoing harassment and racial abuse by neighbour which resident later clarified to be historic when he added that there had been no recent racial incidents; CCTV footage was viewed but no evidence of ASB was established

It also reviewed the handling of reports the resident had made about other neighbours:

24 December 2012 – allegation concerned rubbish being dumped in a communal area and shouting; case was closed due to no further reports
29 April 2013 – allegation that neighbour’s carer had shouted abuse at resident and his wife; neighbour was interviewed and apology given
15 September 2016 – allegation of verbal abuse from a neighbour; neighbour was interviewed and counter allegations made, Police were engaged with but they advised no action was to be taken – case was closed due to lack of evidence but GP and mediation referrals were made

Assessment and findings

In reaching a decision, we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case.
The Ombudsman considers complaints about how a landlord has responded to reports of a problem. It is not the Ombudsman’s role to decide if the actions of the alleged perpetrators amounted to ASB, but rather, whether the landlord dealt with the resident’s reports about this appropriately and reasonably.
Based on evidence seen by this Service, the resident initially submitted ASB allegations about the neighbour in May 2013 and evidence seen by this Service shows that he has reported further incidents in 2014, 2016, 2017, 2018 and 2020. In response to these reports, the landlord demonstrated that it has:
1. completed a risk and/or victim assessment (on each occasion)
2. interviewed the alleged perpetrator (in 2013)
3. liaised with the Police (in 2014 and 2018)
4. referred the case to its ASB Team (in 2014 and 2016)
5. offered mediation (in 2016 and 2020)

These actions were broadly in line with the landlord’s ASB procedure to assess risk on receipt of a report and the resulting actions were, in most cases also appropriate responses to the resident’s reports of verbal abuse. They also reflect the Ombudsman’s experience of similar cases across the social housing sector as appropriate actions to take when managing neighbour disputes.

The landlord has demonstrated that it attempted to gather evidence on various occasions when the resident reported these incidents. It did so through a combination of using its own resources (visits and interviews), liaising with third parties (the Police) and reviewing the resident’s evidence (CCTV footage). These attempts were in line with the landlord’s ASB procedures but have largely failed to yield evidence of the serious ASB alleged.
However, the ASB reports made by the resident also included reports of racial abuse by the neighbour in September 2016, November 2017 and February 2018. Based on evidence seen by this Service, the landlord did not address these specific allegations with the neighbour. The landlord’s ASB procedures require racial harassment reports to be logged as ‘Level 1’ and ongoing neighbour disputes to be logged as ‘Level 2’. Based on evidence seen by this Service, the 2017 and 2018 reports were not categorised at all – this was inappropriate.
The landlord’s ASB procedures state that it should interview the alleged perpetrator for ‘Level 2’ ongoing neighbour dispute cases before passing these to its ASB team. It would therefore have been appropriate for the landlord to interview the neighbour on each of these occasions, particularly given the serious allegations of racial abuse. This may have allowed it to issue a warning letter to the neighbour and could have acted as ‘an early warning’ as its ASB procedures state.
When the landlord subsequently responded to the resident’s complaint, it said it had interviewed the neighbour in response to the September 2016 report of racial abuse. However, this Service has not seen evidence of this and the landlord’s records do not show that it made any attempt to investigate the November 2017 or February 2018 reports beyond advising the resident to report such incidents of racial abuse to the Police and asking him to complete diary sheets. The landlord’s procedures show that it should have logged these incidents as ‘Level 1’ and carried out an action plan within 48 hours. Its failure to do so was inappropriate and meant that it lost an opportunity to collect evidence that may have corroborated the resident’s reports and could have led to possible tenancy enforcement action.
It is acknowledged that the reported ASB has become a long-standing source of frustration for the resident and he has described the impact it has had on his health. It is not disputed that the resident is vulnerable and has advised the landlord on several occasions how the alleged ASB has impacted him as a result. In response, the landlord has made referrals:
1. for mental health support (2013)
2. for floating support (2014 and 2018)
3. to a GP (2017 and 2020)

These actions demonstrate that the landlord considered the resident’s circumstances and took reasonable steps to offer support to him.

The resident has made several requests for the landlord to move him away from the alleged ASB. In response, the landlord has:
1. made a referral to its housing options team for a housing application to be registered and assessed (2013)
2. made a referral for a management move which was refused (2014)
3. updated its housing options team with new information about the ASB case (2020)

The landlord has not provided evidence as to how it refused the management move in 2014. It is of concern that it has therefore not demonstrated how it assessed the case for a ‘management move’. However, it advised the resident during the complaints process in 2020 that the management move was refused due to a lack of evidence. The landlord’s procedures state that it can consider offering a move where there is racial harassment but the landlord had not obtained evidence of this so its decision was reasonable in the circumstances.

Based on evidence seen by this Service, the landlord arranged for its housing options team to register and assess the resident’s housing need. It is not within the jurisdiction of the Housing Ombudsman to consider housing allocations but the steps taken by the landlord to liaise with colleagues in its housing options team and pass updates on the progress of the ASB case were reasonable responses to the resident’s requests for re-housing.
In summary, the landlord has consistently assessed risk and taken steps to investigate the resident’s ASB allegations in line with its procedures between 2013–20. Given the circumstances of the case, it has made reasonable attempts to assist the resident with his re-housing request and made appropriate referrals for support. However, the resident made allegations of racial abuse on three occasions during 2016 to 2018 and the landlord has failed to demonstrate that it categorised two of these reports appropriately and has not evidenced that it interviewed the alleged perpetrator as it was required to do.

Determination

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the resident’s reports of ASB.

Reasons

The landlord’s actions were broadly in accordance with its procedures for the majority of ASB reports it received but it failed to respond to specific reports of racial abuse appropriately between 2016-2018.

Orders

The landlord to write to the resident to apologise for the service failures identified in this report.
The landlord to pay compensation of £200 to the resident in recognition of any distress and inconvenience caused to him by the service failures identified in this report.

The landlord should confirm compliance with these orders to this Service within four weeks of the date of this report.

Recommendations

The landlord to ensure staff are reminded of its procedures for dealing with ASB reports that include hate crime or racial harassment.

The landlord should confirm its intentions in regard to this recommendation to this Service within four weeks of the date of this report.