Brighton and Hove City Council (202006311)

REPORT

COMPLAINT 202006311

Brighton and Hove City Council

29 November 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

The complaint concerns:
1. The landlord’s handling of the resident’s reports of antisocial behaviour from a neighbour.
2. The landlord’s complaint handling.

Background and summary of events

Background

The resident and her husband are secure tenants. The tenancy started on 25 November 2002. The property is a two-bedroom terraced house.
The landlord is the Council. The resident is noted to have a vulnerability and this is recorded on the landlord’s systems.
The Ombudsman notes there have been a number of allegations and counter-allegations between the residents and their neighbours since 2018

Summary of Events

The resident reported an incident to the landlord in December 2019 involving the neighbour shouting and swearing at her husband whilst he was washing their back garden with water. The resident explained to the landlord that it was part of her culture to wash the garden with water at new year.
The landlord called the resident’s neighbour who explained she was unhappy when water pooled into puddles after water used by the resident flowed into her garden causing a trip hazard. To resolve this dispute the landlord asked the resident to keep the water to a minimum so that it would not cause a hazard in the future. It also asked the neighbour not to speak to the resident or her husband but contact it should she have an issue in the future.
The landlord called the resident’s husband on 24 March 2020 following a call from the resident’s neighbour who had alleged that the resident’s husband had walked up to her aggressively and was verbally abusive. The resident’s husband denied the allegations. During the call the landlord asked the resident’s husband to be more aware of social distancing.
The resident called the landlord back advising she had had issues with her neighbour in the past. She said the neighbour makes false accusations about her and her husband. The resident sent an email to the landlord later that day to confirm what had happened. She said her husband had left the house to do some shopping earlier that day around 10am and had walked to the car without talking or going near anyone including the neighbour. Her husband had been “shocked beyond belief” to receive a call from the landlord in relation to this issue. She said the neighbour’s behaviour was unacceptable and that she believed it was racially motivated. The resident said she was in a vulnerable group suffering from comprised immune deficiency and that the stress and anxiety caused by the pandemic and the situation with the neighbour made her feel even more vulnerable. She said her neighbour’s behaviour needed to be investigated as this formed part of a long-standing issue.
The resident’s husband emailed the landlord later the same day confirming the resident’s version of the event. He said such unsubstantiated claims only happened in the neighbour’s imagination and were of a great concern to him because she had a history of making false statements which was making their lives “hell”.
On 25 March 2020, the landlord opened an ASB case and provided a response to the resident. Within its response it said it appreciated that everyone was under considerable strain at that time which could lead to strained relationships between neighbours. It said however that from the resident’s description of the incident the day before, there was no evidence of a breach of tenancy by the neighbour and therefore it was unable to take any action against her. It said it could not stop people making allegations, but if there was no evidence to support an allegation it would not take any action.
The landlord offered to refer the resident to a mediation service which it said may help ease any ongoing tensions between her and the neighbour. It provided the resident with contact details if she wanted to take up its offer of a mediation referral.
On 27 March 2020, the resident replied advising she was unhappy with its response. She said as victims of long-standing harassment from their neighbour, the landlord was not taking her complaint seriously and she and her husband were not being supported. The resident’s husband was also unhappy about the landlord calling him about the false allegation before investigating the matter. The resident requested escalation of her complaint to stage one of its complaints process.
On 31 March 2020, the landlord confirmed it had logged their complaint as a formal stage one complaint and advised it aimed to reply within 10 working days but said some more complex cases could take longer to deal with.
On 13 April 2020, the resident raised a concern with the landlord about the neighbour’s rubbish and fencing protruding into her garden. On 16 April 2020, the resident advised the landlord that she felt the neighbour’s actions were racially-motivated.
On 16 April 2020, the landlord provided a stage one complaint response which advised:
1. This was a long-standing neighbour dispute between the resident and her neighbour. There was a history of allegation and counter-allegation that lacked sufficient evidence for any tenancy action against either party. This did not mean incidents had not happened but it was unable to carry out any significant investigations due to the lack of witnesses and evidence.
2. It referred to its offer of mediation but said this had been refused by the resident so far. This offer remained open to them and it “strongly recommended” that the resident take up this offer as mediation could help neighbours find a way of living next to each other without recurring conflict.
3. It had called the resident’s husband to hear his version of events and to offer appropriate advice which was in accordance with its policies.
The landlord said that if she remained unhappy with this response, she could contact its Standards and Complaints Team and it provided the contact details.
On 16 April 2020, the landlord closed the ASB case opened on 25 March 2020.
On 17 April 2020, the landlord’s Housing Customer Feedback Coordinator (HCFC) advised he had asked the Housing team to contact the neighbour in relation to their concerns raised about the neighbour’s rubbish coming over the boundary. The landlord reiterated the option of mediation.
On 21 April 2020, the resident reported that further items of rubbish had been added to the boundary between the properties and asked the landlord to inspect the rubbish. In response the landlord advised only emergency repairs were being attended to at that time due to the pandemic but that the neighbour had been contacted. The landlord advised the resident to contact the police if she felt the behaviour from the neighbour was harassment, which she did.
On 22 April the resident reported to the landlord that the neighbour had shouted at her again, this time for moving rubbish back into the neighbour’s garden.
On 21 May 2020, the resident’s husband contacted the landlord setting out the ongoing issues with the neighbour up to the last incident on 22 April 2020. He said they had called the police as they were unhappy with the landlord’s response to their complaint about rubbish. He said the police visited the neighbour who made a false allegation that he had tried to run her over in his car however when asked to make a statement to that effect, she declined.
On 1 June 2020, the landlord’s Customer Feedback Manager (CFM) provided a response to the resident advising:
1. Its stage one response gave details and explanations of why it has acted in the way that it has in response to ASB allegations and counter-allegations and whilst it appreciated being in dispute with a neighbour could cause a lot of upset and stress, this did not mean the landlord was acting poorly.
2. When assessing a stage two response, it considered the likelihood of a full investigation achieving a different outcome for the complainant. When thinking about that, its role was to establish if it is likely that it had been at fault in the way it handled the situation that is being complained about. In situations of neighbourhood dispute the landlord’s role is to attempt to manage the situation.
3. It was sorry to disappoint her but it did not consider a full investigation at stage two was likely to achieve a different outcome for them.
4. It reiterated its offer of mediation which it believed was the best way forward as it was an opportunity for a controlled discussion between disputing people.
The landlord advised that the next steps were to escalate the complaint to a Designated Person/the Ombudsman after eight weeks if the resident was dissatisfied with its response.

Post the landlord’s final response

On 10 July 2020, the resident’s Advocate advised the landlord that the resident had contacted the recommended mediation service but the neighbour was unwilling to participate in mediation. In response the landlord advised that this did not change the outcome of the stage two complaint as it was the neighbour’s decision not to engage in mediation and this did not represent any fault on its part.
Subsequently in July, the resident submitted a Community Trigger form asking the Council to review the response from agencies including the landlord and the police to her ASB/hate incidents reported. The Council’s response was that whilst the threshold had not been met as the last three incidents had resulted in action “of some sort”, it noted that the landlord had not investigated the resident’s reports that the neighbour’s behaviour was racially motivated. It recommended that the landlord record any such reports as hate incidents and noted this may require some staff training by the landlord. It also recommended for the landlord consider meeting with the resident and her husband to discuss their case with a focus on moving forward. The Council highlighted this recommendation again to the landlord in September 2020.
In September 2020, the landlord resolved a nuisance complaint raised by the resident concerning her neighbour fly tipping and burning waste material by asking her to remove the rubbish and not to burn any waste material in her garden unless it was garden waste. The landlord also erected a garden fence at the boundary between the resident’s and the neighbour’s back gardens to resolve ongoing issues with the neighbour’s rubbish entering the resident’s garden.
The resident made further reports concerning a “hate” letter received through her door which she believed was from the neighbour and about that the neighbour having made a further false allegation to police. In response the landlord said it did not think the handwriting on the note matched the neighbour’s handwriting it had on file, and it could not take any action regarding false allegations because people were entitled to make reports to the police and it had no way of proving whether their reason for making a report was genuine or malicious.
On 22 October 2020, the landlord replied advising a senior manager would review her case, as recommended in the response to her Community Trigger.
In her communication to the Ombudsman dated 8 November 2021, the resident said the landlord did not take action when she reported ASB that contravened the tenancy agreement. She also reiterated that she believed the ASB from her neighbour was racially motivated which according to the landlord’s policy should be investigated. The resident said this did not happen which gave the perpetrator “the green light” to continue unabated. The resident requested that the landlord meet with her and her husband to enable them to discuss the issues they have been experiencing.

Assessment and findings

The landlord’s handling of the resident’s reports of antisocial behaviour from a

neighbour.

The landlord’s ASB policy states it will not tolerate acts of nuisance, tenancy breaches and ASB and it will challenge this and take swift and robust action. It states it will investigate an ASB report, and then take appropriate action which will vary with individual case circumstance. It says the landlord may interview the victim or alleged perpetrator to seek further information – if the landlord interviews the alleged perpetrator it should make clear that no judgement has been made. Its policy also states that not every dispute will meet the threshold to become a case. It may be that minor issues, unless part of a series of incidents against an individual, can be appropriately dealt with by advice or by offer of mediation or by an initial warning letter.
The landlord’s ASB policy also states where:
1. it is clear that a condition of tenancy has been breached, it will offer appropriate support and contact relevant agencies where necessary. Action will also be taken to either resolve the problem or stop/minimise the nuisance.
2. there has been no breach of tenancy, the complainant will be informed accordingly and advice will also be given as to how the complainant could deal with the matter themselves.
3. the allegations are denied and there is no evidence to support the complainant’s claims, no further action can be taken and both parties should be advised accordingly, although alternatives such as mediation may be suggested.
The landlord’s ASB policy confirms that racial harassment along with homophobic, transphobic and sexual harassment are all severe forms of ASB that it takes seriously. Further the landlord’s Racist Incident policy states: “A racist incident is any incident which is perceived to be racist by the victim or any other person” and that an incident does not have to be proved and if anybody believes it to be racist, then it should be investigated as such. Racial harassment may be verbal or physical and can include attacks on property as well as on the person. Victims can be individuals or groups, attacked because of their colour, race, religious beliefs, and nationality or ethnic or national origins.
This service acknowledges this is a difficult situation for the resident and recognises that the neighbour’s behaviour, including allegations she raised about her and her husband which the resident maintains are false, have caused her significant distress. The Ombudsman’s role is to consider whether the landlord responded to her reports as well as any counter-allegations, in accordance with its relevant policies and procedures and whether its actions were fair and reasonable in all the circumstances of the case. The relevant policies and procedures here are the landlord’s ASB, Racial Incident and complaints policies and procedures which were in operation at the time of this reports and complaint.
The landlord’s approach to resolving the ongoing issues between the resident and her neighbour was, in the main part, to talk to both sides about the particular issue raised, to explain each other’s point of view and sometimes it made suggestions about how to resolve the specific issues. Generally, it did not take any further action against either party. This happened when the resident reported that the neighbour had shouted at her husband as he washed their back garden with water in December 2019. To resolve this issue, the landlord asked the neighbour that should she have any concerns about the resident in the future, to raise these to it rather than approaching the resident or her husband directly. It also asked the resident to keep the water used to wash down her garden to a minimum so that it did not cause a trip hazard for the neighbour. As this was a relatively minor incident, the steps taken were appropriate in this circumstance although, as swearing and shouting could reasonably be viewed as ASB, it would have also been appropriate for the landlord to highlight this to the perpetrator as well as the consequences of continuing with this behaviour. As there is no evidence of it doing so, this was a service shortcoming.
When the landlord called the resident’s husband on 24 March 2020 regarding an allegation from the neighbour that he had approached her that morning, the resident raised a counter complaint to the landlord regarding the neighbour having made a false accusation which they said she had a history of. She also expressed dissatisfaction about the landlord contacting her husband about this allegation prior to investigating the veracity of the claim. On this occasion the landlord opened an ASB case – in view of the past incidents, this was appropriate and in line with the landlord’s ASB policy which requires the landlord to open a case where incidents were not isolated and involved allegations and counter-allegations by neighbours.
Again, after interviewing both parties regarding the respective allegations, the landlord did not take any further action and explained to the resident in its stage one response that this was because there was insufficient evidence of a breach of the tenancy by either party. It also explained that it had called the resident’s husband to ask for his version of the event reported by the neighbour. Its call to the resident’s husband was in line with its ASB policy that makes clear that the landlord may interview alleged perpetrators in order to seek further information. However, its policy also says the landlord should make clear in this circumstance that no judgement has been made. The landlord did not say it had done this when responding to the resident’s complaint about this which suggests it did not properly explain this to the resident’s husband. If it had, it may have allayed his distress and would have appropriate in the circumstances.
In April 2020, the resident made a report concerning the neighbour’s rubbish “protruding” over the boundary wall into her garden and asked the landlord to visit the property to view this. In response the landlord explained that it was unable to visit at that time to inspect the rubbish issue due to the pandemic. Whilst this was understandable, as the landlord was aware of the dispute between the resident and her neighbour and because the landlord had previously told both parties not to speak with one another, it was reasonable to expect it to have raised this issue with the neighbour, on the resident’s behalf. Although the landlord said it would, there is no evidence of it doing so and subsequently when the resident moved the rubbish from her side of the boundary, back to her neighbour’s garden, this led to a report from the resident that the neighbour had shouted at her again.
The resident’s husband then told the landlord that the neighbour had falsely alleged to police that he had tried to run her over in his car but that the neighbour did not want to formalise the allegation. In this circumstance, the Ombudsman would expect the landlord to have taken steps to investigate this matter for example by interviewing the neighbour and by contacting police to gain more details in order to establish if the neighbour’s actions constituted ASB. There is a lack of evidence to show the landlord opened a case or acted upon the resident’s report on this occasion which was a failure in the service provided by the landlord.
There is also a lack of evidence to demonstrate that the landlord acknowledged or investigated the resident’s concerns raised in March and April 2020 that her neighbour’s behaviour was racially motivated. The landlord’s Racist Incident policy requires it to investigate ASB incidents as racially motived where this is reported. Therefore, its failure to do so in the resident’s case is evidence of it failing to follow its own policies when dealing with the resident’s reports.
Whilst the scope of this investigation is restricted to the events and complaints that were raised by the resident during the landlord’s complaints process prior to the landlord’s final response on 1 June 2020, it is clear reports of ASB and false allegations were ongoing with the resident continuing to tell the landlord that she believed the neighbour’s actions were racially motivated. There is no evidence of the landlord investigating this claim despite the Council recommending in its response to the resident’s Community Trigger, that the landlord record any such reports as hate incidents which they also said may require some staff training by the landlord.
It is noted however that the landlord did take a practical step to manage the situation between the resident and her neighbour by arranging for a fence to be erected at the boundary between their back gardens in early September 2020. It is also clear that the landlord took appropriate action to resolve the resident’s concerns about her neighbour burning waste in her garden and fly tipping, around the same time.
Therefore, in summary the landlord has shown it took some steps to manage the situation between the resident and her neighbour which included it talking to each side about the some of the reports made. It also offered mediation which was appropriate although it is noted that following its final response, the resident’s Advocate reported to the landlord that the neighbour had told the mediation service that she was unwilling to participate. However, in relation to the resident’s reports of false allegations by the neighbour, the landlord did not take sufficient action to investigate this issue. It also failed to deal with the resident’s reports of racially motivated ASB appropriately. The lack of support provided by the landlord in this regard would have caused the resident significant distress, particularly as she had vulnerabilities which the landlord was aware of.
In the circumstances and taking into account any relevant Covid restrictions in place at the time, it would have been appropriate for the landlord to meet with the resident and her husband in order to reassure them it was taking their complaints seriously and to consider the best approach to follow going forward to address the issues. It is noted that a meeting between the landlord and resident was something the Council recommended in their Community Trigger response yet there is no evidence of the landlord taking steps to arrange this.

Complaint handling.

The landlord has a two stage complaints process which states if any issue cannot be resolved informally, a customer can go through its formal complaints procedure. Stage one states the complaint will be handled by the service the customer is complaining about and to “talk to” them again if the customer is unhappy with parts of their reply. If the resident remains unhappy they can ask to take their complaint to stage 2 where it will be looked at by the Customer Feedback team who are independent of the department their compalint is about.
The landlord refused to escalate the resident’s complaint to stage two when requested by the resident. It said this was because it did not believe it would lead to a different outcome and it reiterated its offer of mediation. The issues were ongoing and therefore escalation to stage two would have afforded the landlord an opportunity to review if its response to the complaint raised was appropriate and also to consider any new issues. Its decision not to escalate was therefore unhelpful.
Furthermore, when the resident’s Advocate contacted the landlord a few weeks later to advise that the neighbour had told the recommended mediation service that she was unwilling to participate in mediation, it would have been reasonable for the landlord to reconsider the resident’s request to escalate her complaint to stage two. This would have allowed it to consider if a different approach to the handling of the dispute between the resident and her neighbour was appropriate.
Also, it is noted that when the resident raised a further complaint in October 2020, the landlord did not log this communication as a formal complaint. Its failure to do so is evidence of it failing to follow the expectations set out in the Ombudsman’s Complaint Handling Code for landlords to log complaints at stage one of the complaints procedure when complaints are received from residents. The landlord’s failure to follow its complaints process when handling the resident’s complaint would have caused the resident stress and inconvenience and also showed that the landlord missed the opportunity to review its handling of the situation.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord when handling the resident’s reports of antisocial behaviour from a neighbour.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord when handling the resident’s complaint.

Reasons

The landlord took some steps to resolve the issues raised by the resident and on occasions responded to complaints raised reasonably. However, it did not take sufficient action to address the resident’s concerns raised about the neighbour raising false allegations against her and her husband or ASB that the resident believed was racially motivated. This demonstrates that the landlord did not act reasonably or in accordance with its policies when responding to the resident’s concerns nor provide her with sufficient support despite her vulnerabilities.
The landlord failed to escalate the resident’s complaint to stage two when it was reasonable to do so. Further, it did not log a later complaint raised by the resident as a new stage one complaint therefore the landlord failed to follow its own complaint process when dealing with the resident’s complaint.

Orders and recommendations

The Ombudsman orders that the landlord:
1. Arrange for a manager to meet with the resident and her husband to reassure them it will take their complaints seriously going forward and to consider the best approach to follow to address the issues (if not in person due to concerns associated with the pandemic, then virtually e.g. via Zoom or Teams).
2. Pay the resident £400 in total compensation comprising £200 for its failure to deal with her ASB reports appropriately and £200 for it failing to follow its complaints process when handling the resident’s complaint.
3. Comply with the above orders within four weeks.