Croydon Council (202006413)

REPORT

COMPLAINT 202006413

Croydon Council

28 June 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 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 and responses to the resident’s:
1. Reports of anti-social behaviour (ASB).
2. Request that it repairs a blocked and overflowing drain.
3. Reports concerning the cleaning of communal areas.
4. Complaint handling.

Background and summary of events

Background

The resident has a five-year flexible tenancy with the landlord that started in 2016. The property is a one-bedroom ground floor flat. There is an access ramp to the back of the property; the landlord is a local authority. The resident suffers from mental health problems including a personality disorder, anxiety and depression. He also has high blood pressure and tinnitus which means he is awake frequently through the night. He told this Service that the landlord was aware of these health conditions.
The conditions of tenancy booklet says that it is the tenants responsibility to inform the landlord when repairs are needed. It says it is the landlord’s responsibility, among other things, to:
1. ensure the resident is able to enjoy their home in peace and quiet;
2. keep their home safe; and;
3. clean and care for the communal areas and environment around your home.
The landlord’s ASB policy and procedures lists behaviour it considered to be anti‑social including threatening behaviour, vandalism or damage to property, drug and substance misuse, drug dealing, alcohol-related nuisance, littering, misuse of communal areas and criminal behaviour (other than listed). The procedures in the main refer to what action it can take where the ASB is being carried out by a resident of the landlord.
These policy and procedures also say that the local authority can make a public spaces protection order (PSPO). These are intended to deal with a particular nuisance or problem in a particular area that is detrimental to the local community’s quality of life, by imposing conditions on the use of that area which apply to everyone. They are designed to ensure the law-abiding majority can use and enjoy public spaces, safe from anti-social behaviour. The local authority is responsible for making a PSPO although the police also have enforcement powers. A breach of a PSPO is a criminal offence.
The landlord’s repair guide for tenants says that it has a legal responsibility for keeping in good repair the structure and exterior of the property including drains, gutters and downpipes. It says that non-emergency repairs will be attended to within 15 working days.
On 23 March 2020 the UK government announced a national lockdown. This was eased from June 2020 when schools and non-essential retail outlets re-opened. The government introduced new restrictions from 22 September 2020 and a second full national lockdown was announced on 31 October 2020 that came into effect from 5 November 2020. While restrictions were lifted slightly over Christmas, there was a new national lockdown from 6 January 2021.
The landlord’s website says that its repairs team are carrying out essential repairs only, including gas servicing and a small number of repairs in communal areas. It adds that, over the coming months, it will be introducing steps to carry out other types of repairs while keeping to current social distancing controls.
The landlord has a two stage complaints procedure. The landlord has a target to respond to the complaint at each stage within 20 working days. At stage one, the service area the complaint has been made about will be responsible for recording, investigating and responding to the complaint and an investigating officer will be assigned by the relevant service.

Summary of events

On 11 February 2020 a contractor carried out a CCTV survey of the rainwater gulley on the patio of the property. They recommended a full de-scale which was carried out on 28 February 2020. A further CCTV survey identified no further problems.
On 21 April 2020 the housing officer told the resident that he must continue to call the police regarding the people smoking drugs near the property; and asked him to be specific about his concerns with the condition of the bin chamber.
On 6 May 2020 the resident made a formal complaint to the landlord about several issues: a blocked drain, the bin shed that he said was never cleaned and about ASB. He also complained that his housing officer (the housing officer) was not helpful towards him. In relation to the ASB, the resident said that this was an ongoing issue whereby the area just outside the property attracted drug dealers, drug users and “other undesirables” who congregate there and were “loud and problematic”.
On the same day the resident copied his complaint to the housing officer. He asked if she was discriminating against him on the grounds of his race, mental health or some other reason.
On 20 May 2020 the housing officer responded to the resident’s complaint. She said that she dealt with residents from all different backgrounds and sometimes they were vulnerable and had health issues. She said it was not in her interest or nature to discriminate against anyone as it would not enable her to carry out her role. She said she would let the complaints team know that she had responded to the complaint. She dealt with the issues in turn:
1. Drain blockage/back garden: the repairs team had arranged an operative to inspect the drain within the next 24 hours.
2. Bin shed: these areas were meant to be cleaned on Mondays; however, its cleaning team was now working more flexibly to ensure that it continued to provide good levels of service due to the impact of the pandemic. She said the landlord was trying its best to maintain service standards for all its customers and she had raised his concerns with the neighbourhood caretaker.
3. ASB: she was pleased the resident was reporting non-residents loitering close to the property. She added she was not aware that the local authority had plans to install CCTV in the area and advised him to continue to report incidents to the police as well as the landlord. She added she would let the police’s safer neighbourhood team (the police) know to ensure they were aware of his concerns regarding non-residents causing a nuisance adjacent to the property.
On 22 June 2020 the resident told the housing officer that he and his neighbour had witnessed another tenant urinating down his drain. He said the problem was with noise in the area outside his property and said this communal area was used for drug taking and dealing, groups drinking and that day he had found “human excrement right behind my fence against the wall”.
On 13 July 2020 the resident asked for a review of his complaint. He raised issues with each point of his complaint including:
1. That his original complaint had been considered by the person he had made a complaint about. He said he was a vulnerable adult and the issues he was complaining about had exacerbated his mental health conditions.
2. In relation to the ASB, the resident said that he could “hear conversations of swapping sexual acts for drugs, can smell the chemicals in the air and understandably I do not feel safe. I witness gang fights, I witness members hiding drugs and weapons, confirmed when found by police. I am in the middle of everything”. He asked the landlord to gate off the estate to secure it and to stop non-residents accessing it.
3. He also said that the drain overflows every time it rains and leaves “questionable mess” over his patio each time. He added that it “constantly smells” and means he has to clear it up every time and deal with the smell.
4. He said the issue of cleaning the communal foyer and bin shed was not resolved. He said the smell from the bin shed permeated into the foyer which was outside his front door. He said he had met with the caretaker manager and cleaned a patch with hot water to show the difference but the manager did not accept there was a difference.
On 20 July 2020 the police asked the resident to complete and return diary sheets which would enable them to undertake targeted patrols and have some information about what was happening. They acknowledged that this was causing the resident some anxiety. It said that, to resolve any ASB in the local area, it worked in partnership and with the local authority’s ASB team and the landlord’s housing officer.
On 31 July 2020 the landlord issued its stage two response under its formal complaints procedure; it was dated 31 August 2020. It responded to the points he had raised in turn, in brief:
1. ASB/illegal activities: The landlord said it had explained in its previous complaint response that the concerns he was raising regarding non-residents on the estate allegedly taking part in illegal activities and ASB was a police matter. It could not investigate this matter but the tenancy team would continue to meet regularly with the police and had passed the resident’s concerns onto them. It asked him to continue contacting the police directly to report such concerns. It apologised for the delay in its contractor cleaning the human faeces that was by his property. The contractor confirmed it had attended the area on a number of occasions and that there had been rough sleepers in situ at the time. The tenancy team regularly inspected the area and had been trying to engage with the rough sleepers to offer them support. They had also liaised with the police and the outreach team to identify any additional support in moving the rough sleepers away from the area. The contractor and tenancy team had completed a full cleanse of the area on 20 July 2020. It asked the resident to report any cleansing concerns to the tenancy team and contractor and gave a link for him to do so. It explained it was unable to install gates or signage to stop non-residents accessing the estate because the roads and pathways were public rights of way.
2. Ongoing repairs of a drain: The landlord confirmed that work identified following the stage one response needed to be completed. Its repairs team had been unable to complete repairs of this nature due to the pandemic but it hoped to complete the work by the end of August 2020. It confirmed it had written to the neighbour after the resident’s initial report of him urinating down the drain and the tenancy team would continue to monitor the area.
3. Communal cleaning: The landlord explained that the caretaker was scheduled to attend weekly on a Monday. It had monitored the standard of cleaning and taken photographic evidence which showed the internal communal areas and bin area had been cleansed weekly and to a high standard.
4. The housing officer: The landlord said it was sorry that the resident felt the tenancy team had been discriminating against him, and that he felt that was due to his mental health. It hoped its response demonstrated that that was not the case and that the team were doing everything it could to resolve the issues he had raised where the resolution he sought within their remit.
The landlord signposted the resident to the Ombudsman.
When the resident approached the Ombudsman in September 2020, he said that the illegal activities on the estate had a massive impact on his daily life. He said he already suffered with mental health problems which had deteriorated severely since living in the property. He said he did not feel safe and had been threatened more than once whilst standing at his back door.
On 25 September 2020 the landlord told the resident that he should continue to report the rough sleepers to the police as and when he saw them. It said it had met with the police the previous day who confirmed they had moved the rough sleepers on if they saw them on the estate when they were out on patrol. The landlord added that the ramps could not be blocked off due to financial constraints. The landlord subsequently told the Ombudsman that it had blocked off a different ramp on the estate in error so the space beneath the ramp near to the resident’s property remained open. On the same day the resident asked the police to move the homeless person in the area outside the property.
On 26 September 2020 the resident’s carer told the police that the resident’s mental health was deteriorating as a result of the incidents outside the property.
On 28 September 2020 the landlord told the resident that it had made arrangements to remove the mattresses and any other mess from beneath the ramp near the property. It added it had also contacted an agency to engage with the rough sleepers with a view to assisting them with their situation. The landlord suggested that the resident continued to report to the police any further sightings of the rough sleepers because, as they were not residents of the estate, it would not be communicating with them. It said it the police would be patrolling the area.
In an undated email, the police told the resident what action it had taken in response to his reports. They explained that being homeless was not a crime nor was it classed as ASB but acknowledged that, sometimes, their behaviour due to drugs or alcohol could mean that their actions and behaviour become anti‑social, and that was when the police took action. The police also said that they would ask the landlord to make a management transfer so he was moved away from the area following his threat to set the homeless person’s mattresses on fire.
On 20 October 2020 the resident’s carer told the police that since January 2020 the homeless person had left rubbish, drug paraphernalia outside the property as well as defecating and urinating there. She said that there were still several piles of human faeces that had been there for several weeks and rubbish left behind also. She added that this person also openly used drugs directly next to the property.
When this Service spoke to the resident recently, he said the repair to the drain was still outstanding. He said that the outcome he was seeking was to have it repaired because it “was filthy and stank and it was right outside his bedroom window”. He added that, while the landlord had cleaned it, it did not carry out the necessary repair to prevent the problem from regularly reoccurring. He said the landlord had not cleaned it after he had made it aware of his neighbour urinating down it.
The resident also told this Service that the ASB continued. He said that there had been someone under the ramp “smoking crack” the night before and drug dealing regularly took place. He said the drug dealer had referred to stabbing people. He said, he had referred this to the police, but he was vulnerable and did not feel safe in his home. He added the landlord was not helping by saying it was a police matter, while the police had told him that the landlord should take action in response to the reports of ASB. He said that he had been told by the landlord that a move was not an option for him.
The resident said he had footage of the ongoing ASB but the landlord was not interested in viewing it. He said, by way of outcome, he would like a high fence putting between his property and the ramp and the underneath of the ramp to be closed off.

Assessment and findings

The landlord’s responses to the resident’s reports of ASB

The landlord told the Ombudsman that the resident’s reports of ASB were against non‑residents, that is, rough sleepers and the general public using the estate as a cut through. It added that it had had no reports from the resident relating to these issues. The landlord said that it had no notes relating to interviews or meetings with the resident, other witnesses or the alleged perpetrators; nor did it have any inspection noted in relation to the reported ASB.
It is the Ombudsman’s role to assess the appropriateness and adequacy of the landlord’s actions in responding to reports of anti-social behaviour and the fairness and reasonableness of its response to the formal complaint. This does not include establishing whether a party is responsible for anti-social behavior; our investigation is limited to the consideration of the actions of the landlord in the context of its relevant policies/procedures as well as what was fair in all the circumstances of the case. The Ombudsman cannot tell the landlord to take action against neighbours.
The evidence shows that the landlord acted appropriately by telling the resident to report these matters to the police in April and May 2020 when it first became aware of the ASB he was experiencing because they could take action in response to any criminal behaviour that was taking place such as drug-dealing.
It also acted appropriately by letting the resident know how he could request that the area be cleaned (paragraph 18.a).
Despite having a responsibility under the tenancy to ensure that the resident was able to enjoy his home in peace and quiet (paragraph 3.a), there is no evidence that the landlord itself took further, specific action in response to the resident’s reports of ASB (apart from ensuring the police were aware of the incidents that the resident had reported – paragraph 18.a).
It would have been reasonable, when the landlord became aware of the ASB continuing despite the police’s involvement, for it to have pro-actively considered all the options available to it to try to resolve the ASB issues experienced by the resident such as a community protection notice, a public spaces protection order or a referral to the joint-agency group. There is no evidence that the landlord took a victim-centered approach here to consider what steps it might take, even when the resident expressed fears for his safety (paragraph 16.b). This meant that the landlord lost an opportunity to try to resolve matters at the earliest opportunity.
While the landlord’s initial actions in response to the reports of ASB were appropriate, it should have considered what other actions were available to it in line with its ASB policy. Its failure to do so was a service failure.
In relation to the failures identified, the Ombudsman’s role is to provide fair and proportionate remedies where maladministration or service failure has been identified. The Ombudsman cannot order compensation for any poor health that a resident claims they have experienced because he is not qualified to establish a causal link between the health effects that the resident says are linked to the landlord’s failures.
In this case, it is evident that the ongoing problems on the land adjacent to the resident’s property caused him frustration and distress as outlined in both his and his carer’s correspondence with the landlord. This Service cannot say with any certainty that, had the landlord considered and implemented other options, these would have resolved matters. However, this would have reassured the resident that the landlord was trying to help resolve matters for him.

The landlord’s response to the resident’s request that it repairs a blocked and overflowing drain

I have considered these events up to the date of the landlord’s final complaint response as we evidence of the landlord’s response to reports up to that date.
The landlord acted appropriately to the resident’s reports of problems with the drain by inspecting it and carrying out a full de-scale (paragraph 10) then, when that did not remedy matters, investigated the issue further (paragraph 14.a).
Those investigations, which took place on 21 May 2020, identified further repairs. The landlord was unable to carry out these repairs within 15 working days in line with its repair policy (paragraph 6) which it explained was due to the pandemic (paragraph 18.b). In its final complaint response, the landlord said it hoped to complete the repairs within one month, that is, by the end of August 2020. Given that it was (and appears still to be – paragraph 8) carrying out essential repairs only, this undertaking was reasonable.
The resident recently told this Service that this repair was still outstanding (paragraph 26); I have made a recommendation, below.

Reports concerning the cleaning of communal areas.

The landlord acted reasonably in response to the resident’s report of substandard cleaning of the communal areas by explaining in the stage one complaint response when those areas should be cleaned, albeit flexibly at that time due to the pandemic (paragraph 14).
It also took his concerns seriously as demonstrated by the caretaker manager meeting with the resident (paragraph 16.d); it then monitored the standard of cleaning and taken photographic evidence from which it was satisfied that the area had been cleaned to a high standard.
The landlord took reasonable action following the resident’s report by meeting with him and then taking steps to ensure that the cleaning of the area was up to standard.

Complaint handling

The housing officer responded to the resident’s complaint at stage one. This was not appropriate as part of the complaint was about their actions. While the landlord’s complaint policy is silent whether a person complained about should deal with the complaint; the Ombudsman’s Complaint Handling Code says that a complaint investigation should be conducted in an impartial manner, seeking sufficient reliable information from both parties so that fair and appropriate findings and recommendations can be made. A complaint response cannot be impartial when the person complained about is the author of that response.
When the resident raised this question of impartiality, the landlord did not deal with this aspect of the escalation request. This meant that the resident’s concerns were not addressed and it therefore missed an opportunity to resolve matters at the earliest opportunity.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its:
1. Response to reports of ASB.
2. Complaint handling.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its:
1. Response to a request that it repairs a blocked and overflowing drain.
2. Response to concerns about the cleaning of communal areas.

Reasons

While the police had a responsibility to investigate if there was any criminal behaviour taking place on the land adjacent to the property, the landlord had a responsibility towards the resident also. It did not act appropriately as it did not consider all the actions available to it.
The first complaint response was responded to by the person who the resident had complained about. That was not appropriate as it meant that the complaint was not dealt with in an impartial manner.
The landlord’s response to the reports of the blocked drain were reasonable by investigating and undertaking to carry out the necessary repairs.
The landlord’s response to concerns about the cleaning of communal areas was reasonable because it looked into these concerns and took steps to satisfy itself that the cleaning was of a good standard.

Orders

The landlord shall take the following action within four weeks of the date of this report:
1. Apologise to the resident for the failures identified in this report.
2. Pay the resident the sum of £250 made up of:

i) £150 for the frustration and distress caused to the resident by failing to consider all the options available to it when responding to his reports of ASB.

ii) £100 for the complaint handling failures identified in this report.

To arrange a multi-agency meeting with the resident (alongside the police and the local authority’s environmental health team) to view the recordings/footage he has of the ASB and to discuss options as well as what practical action can be taken to:

i) Deal with the ongoing ASB in the area.

ii) Support the resident in his home and increase his security there by, for example, blocking off the lower part of the ramp.

Recommendations

It is recommended that the landlord take the following action:
1. Write to the resident to let him know when the repairs will be completed to the drain.
2. Consider, given the neighbouring tenant’s use of that drain, to clean it.
3. Amend its complaint procedures to align with the Ombudsman’s Complaint Handling Code to reflect that, when a complaint is made about a member of staff, a different staff member should respond to the complaint in the interest of impartiality.