East Devon District Council (202201008)

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REPORT

COMPLAINT 202201008

East Devon District Council

26 June 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 handling of the resident’s report of noise nuisance and anti-social behaviour.

Background

The resident has a secure tenancy which began on 11 December 2017. The property is a two-bedroom flat (sheltered housing) for the elderly and vulnerable resident’s.
The landlord’s records note that the resident has mental and physical health issues (personality disorder, agoraphobia, and depression). The landlord is a local authority.
The Ombudsman notes from the evidence that the resident’s reports of anti-social behaviour and nuisance behaviour by her neighbours date back to June 2020 and possibly before this date. Its safeguarding team received a referral from an external organisation on 11 June 2020, that the resident was being harassed by the neighbours upstairs. The reports made included constant noise and interference with her electricity. The landlord noted that there was no evidence of the allegations made and that the safeguarding team would liaise with the mental health team for any intervention that she may require.
Further evidence seen by this Service indicates that some action was taken by the landlord to investigate the reports made by the resident. Its letters dated 4 December 2020 and 18 February 2021, informed the resident that it had not been able to substantiate her reports of harassment following its investigation. It advised the resident to make an appointment with her doctor as she had previously expressed that she had been diagnosed with depression.
Following this, the resident submitted a noise complaint form on 21 February 2021, where she complained about frequent noise from parties within the block. The evidence suggests that the landlord installed noise recording equipment, at the resident’s property, which it monitored between 23 March 2021 and 29 March 2021. It wrote to her on 21 April 2021, that the diary sheets submitted only had three entries that related to noise and that she did not make any recordings in relation to the noise logged in the diary sheets. It said it was willing to offer the noise recorder again, but that she had to record the noise, so that it could investigate the matter. It also offered mediation and asked her to confirm if her details could be forwarded to the service.
The evidence also indicates that the landlord had received complaints of nuisance behaviour against the resident. It wrote to her on 22 April 2021 and warned her that such behaviour, where proven, would be a breach of her tenancy. Whilst it is noted that the resident’s complaints were ongoing and longstanding, this investigation focusses on events that occurred from August 2021, which was six months before she raised her formal complaint with her landlord. Any previous incidents that may be referred to in this report are for context.
This is because resident’s are expected to raise complaints with their landlords in a timely manner so that the landlord has a reasonable opportunity to consider the issues whilst they are still ‘live’, and while the evidence is available to reach an informed conclusion on the events that occurred.

Policies and procedural information

The Anti-Social Behaviour, Crime and Policing Act 2014 outlies that when responding to reports of anti-social behaviour, agencies must consider the effect that such behaviour has on victims and witnesses. It also states that agencies should recognise and consider the debilitating impact on that persistent or repeated anti-social behaviour can have on victims, more so over a period of time.
The landlord’s ASB policy describes antisocial behaviour as being any behaviour or activity which causes fear, alarm or distress to one or more persons not of the same household. This includes damage to property or behaviour that is likely to injure, intimidate, and cause alarm or distress
The landlord’s anti-social behaviour policy notes that:
1. Residents are to report any kind of anti-social behaviour to their housing officer in writing, in person, by phone or email as soon as possible.
2. Upon receipt of the anti-social behaviour report, it would record the complaint, acknowledge the complaint, interview the complainant, offer mediation where appropriate, investigate every complaint as far as possible.
3. It would take timely, effective, and consistent action to tackle problems by utilising the range of measures which would include partnership working with agencies.
The landlord has not provided a copy of the resident’s tenancy agreement, but its ASB policy notes that residents are responsible for their behaviour and that of their household under section 4.31 of their tenancy agreement. It states that it will take legal action to evict a resident if they cause anti-social behaviour.

Summary of events

The landlord wrote to the resident on 19 August 2021, and said this was in response to her on-going complaints of harassment against her from other residents living in the flats. The response suggests that the resident had made further reports since it told her in April 2021, that it was unable to substantiate her noise reports. This information was however not provided to this Service. The landlord said in the letter that:
1. It had provided her with diary sheets and also installed noise recording equipment regarding her complaint of noise and anti-social behaviour coming from the flat above her, but her written diary sheets were not filled out as the example given and therefore did not give the information required.
2. She did not make any recordings using the noise recording equipment, so it was unable to proceed with her complaint due to the lack of evidence.
3. It had also investigated her complaint of noise from the flat above causing noise late at night. It said its investigations clearly found that the noise she was reporting was not coming from the flat above her.
4. It asked the resident to remove all the notices and letters that she had stuck over her windows, with offensive comments regarding her neighbours. It said this was a breach of her tenancy agreement and that it would inspect the area in the following week to ensure that they had been removed.
5. It reminded the resident to contact her doctor for any support she may require.
The landlord’s internal communication on 18 October 2021, noted it received a voice message from the resident stating that the landlord had contacted her doctor without her consent.
The landlord inquired internally on 18 October 2021, if the right procedure had been followed in contacting the resident’s doctor.
The landlord’s internal discussions on 4 November 2021, noted that its staff spoke with the resident’s doctor as part of an ongoing safeguarding issue. It said that it was concerned at the lack of support she was receiving and that all communications conducted were in a respectful manner.
The resident wrote a letter of complaint to the landlord dated 1 February 2022. According to the date stamp on the letter, the landlord received the letter on 3 February 2022. The resident said:
1. She heard the landlord’s staff having a discussion about her with another resident in the building.
2. She felt the person was from the housing department based on the conversation and found this to be inappropriate as she was talking to the neighbour who had subjected her to anti-social behaviour for three years.
3. The member of staff should have discussed any matters pertaining to her directly with her and not had unkind discussions about her.
The resident wrote to the landlord on 14 February 2022 and complained about noise disturbances such as loud music, banging, shouting and continuous tapping by another neighbour in the building. The date it was received by the landlord is not known.
The landlord’s complaints team contacted its housing team on 17 February 2022, regarding a phone call it had received from the resident. It said that the resident complained that a man (with a couple dogs) verbally abused her in the communal garden. It asked if a visit could be arranged or a phone call to discuss the matter.
The landlord’s internal correspondence dated 2 March 2022, noted its concerns about the resident’s mental health and that she was not engaging with the services for support. It said it had a designated one point of contact for the resident due to concerns about the high volume of emails, voicemails, letters, and their contents. It further said that it was unable to take enforcement action against the resident as she is elderly and vulnerable.
The landlord responded to the resident’s stage one complaint on 3 March 2022. It thanked the resident for her letters and voicemail in regard to her complaint. It said:
1. The resident complained about a number of issues, mainly an incident where she believed that one of its officers was speaking about her to another resident, parties being held in the flat above hers and aggressive behaviour towards by another neighbour who owned dogs.
2. It had not been able to identify the person whom she believed was discussing her personal matters with another resident and it assured her that its members of staff would not behave in such a manner.
3. It had not been able to identify the neighbour with two dogs. It asked if she could provide any further information for the person such an address, as this could assist them in investigating the matter further.
4. The flat above hers had been empty since the beginning of February 2022. No one had access to the flat as it was locked and unoccupied. The police had visited the flat in response to calls she had made and found it empty with no evidence of parties taking place. The flat had also been visited by officers in its estate management team, who confirmed that the flat was empty.
5. An officer had also visited her regarding her concerns about the flat above hers and informed her that it was empty. The officer also confirmed that they had agreed to increase her housing application banding to band b, to help her to move to a more suitable property.
6. It said an officer would be visiting her to assist her with updating her application and likely set it up for automatic bidding.
In an internal email to staff on 7 March 2023, the landlord discussed a safeguarding referral it had received from an external organisation regarding allegations of ongoing psychological abuse by the resident’s neighbours. It noted that there was no evidence to substantiate the claims and it could see that protective factors were in place, such as a referral to the older people’s mental health team and that its housing team remained involved. It also said in the email that it had made a request within adult social care for a telephone assessment to take place regarding potential enabling support as requested by the resident. It concluded that the safeguarding report would be closed as with no further action at that time.
The resident wrote another letter of complaint to the landlord dated 8 February 2022. The landlord’s records noted that the letter was received on 9 March 2022 and that the date on the resident’s letter may have been written in error. The key issues raised in the letter were:
1. She had complained for years about noisy parties, get togethers, unruly behaviour and drug selling at the above flat, but the problem had not been resolved.
2. The flat above hers made constant and excessive noise to stop her from getting a full night’s sleep. The occupants went away for two weeks, leaving the flat empty, but they had arranged to have people in there to make extreme noise to keep her awake.
3. The landlord’s letter dated 3 March 2022, misconstrued her complaint about its member of staff.
4. She was verbally abused by a neighbour walking his dogs on 14 February 2022 which left her very upset and shaken. On her way back from an outing with friends at 6:30pm, she noticed that there were people in the flat upstairs. She also noticed that there was a folding bed in the sitting room.
5. She was unable to sleep because of the noise from the party and she realised that there were bright lights being shone into her flat. She drew back the curtains outside her bedroom window and found the man (with two dogs) who shouted an offensive word at her.
6. The next evening at about 7:30pm she was at her kitchen sink, when the man appeared with a very strong, very bright light strapped to his head. He put his head against her window with the light in her eyes and kept it there. She rang 101 and the policewoman was concerned for her, as they could also hear another party going on upstairs.
7. The police told her it was not an emergency as it was quiet when they arrived to investigate. The landlord did not come out to investigate the noise.
8. She was not satisfied with the landlord’s handling of her complaints as they had not been taken seriously. Most had been criminal, hurtful, and harmful to her.
On 14 March 2022, the landlord’s internal communication noted that it had been able to identify the neighbour (with two dogs) and that it had interviewed them about the allegations of verbal abuse made against them. The neighbour responded that they wore torches on their heads so that they see in the dark during their walks, but they did not use any offensive words in their interactions with the resident.
The resident wrote a letter to the landlord on 5 April 2022 for the attention of the information and complaints team. She said:
1. The landlord’s letter of 14 February 2022 informed her that she would get a response to her complaint within 20 working days, but it had been two months.
2. She had tried to contact the landlord by phone and left messages, but no one responded.
The landlord issued its stage two response on 12 April 2022. Below is a summary of the response:
1. It apologised for the delay in responding to the complaint.
2. It assured the resident that her concerns had been investigated but that it had been very difficult to find the evidence to corroborate her allegations made against staff and neighbouring residents.
3. There were no other reports from any other tenants of parties going on all night every night in the flat above hers.
4. It had completed various investigations and followed up her reports but, on each occasion, there had not been any evidence to allow it to take any further action.
5. The flat above hers was empty and no-one outside of the council or its contractors could access it.
6. The flat had been visited multiple times by its staff and they had reported no evidence of parties or of forced entry into the property.
7. It believed the police also visited the property after receiving calls from the resident and that they were also satisfied that the flat was empty and unused.
8. It was concerned that glue was put into the lock of the flat above hers and they had had to replace the lock as a result of this criminal damage.
9. One of its staff said that in a conversation had with her on 7 March 2022, she had suggested that it was possibly the neighbours who were accessing the property and deliberately making noise to disturb her and that she had made sure that they could not get in anymore. The landlord said this intimated that she had done something to the lock and that if that was the case, it was an act of criminal damage.
10. It had not been able to find the identity of the person she believed to be its staff member, she said was speaking about her to another person in public. The description she had given of the person did not match any of its officers.
11. With regards to her complaint about the neighbour with the two dogs, it said it had been able to identify them and had spoken to them about this incident. They advised that when walking their dogs at night, they did wear head torches and were unaware that this was causing her some concern. They were asked to refrain from shining the torches directly at her property in future.
12. The property above hers was empty and there was no evidence to substantiate her reports that they had enabled anyone into their old flat illegally, to carry out all night parties with the sole intension of deliberately disturbing her.
The resident escalated the matter to this Service on 14 April 2022.
The landlord’s internal emails between 5 August 2022 and 8 August 2022 noted that:
1. The flat above the resident’s had been empty since early 2022, as the property was viewed to be a sensitive let due to the issues experienced by the tenants previously living there.
2. The resident was on auto-bid for alternative housing.
3. Two residents in the block involved in disputes had agreed to mediation as well as the resident.

Assessment and findings

The Ombudsman’s Dispute Resolution Principles are:

Be fair.
Put things right.
Learn from outcomes.

This Service will apply these principles when considering whether any redress is appropriate and proportionate for any maladministration or service failure identified.
It is important to clarify that the role of the Ombudsman is not to ascertain whether ASB occurred or not, but to determine whether the landlord responded to reports of ASB and took reasonable and proportionate action in accordance with its policies and procedures.
The Ombudsman has seen a copy of the landlord’s internal report regarding the resident’s reports of noise nuisance and anti-social behaviour by her neighbours. The report stated that communication with the mental health team revealed that she had been diagnosed with a schizophrenic delusional disorder, but that she refused to accept the diagnoses or treatment. The landlord’s internal communication dated 4 November 2021, indicated that it had contacted the resident’s doctor twice, as it was concerned about her welfare. Whilst the outcome of the discussions have not been provided in the evidence, the landlord’s actions demonstrate that it worked in partnership with other agencies to support the resident as stated in its ASB policy.
The report noted that the resident had made reports of bullying and intimidating behaviour and harassment by the neighbours in the flat above hers since the start of her tenancy. It said that these allegations were investigated by its organisation and the police but turned out to be unfounded. This Service has seen evidence of the landlord’s interactions with the resident regarding her ASB concerns. This includes the landlord’s letter to the resident dated 19 August 2021, which shows that it took steps to investigate the resident’s complaint about noise disturbance. It provided her with diary sheets and noise recording equipment, but it said it was unable to substantiate the reports due to the lack of evidence.
The landlord stated in the report that it took a safeguarding decision to rehouse the neighbours in the flat above hers early February 2022, due to the negative impact the reports were having on their health. It said in an internal email dated 2 March 2022, it had hoped that the resident’s concerns would also be resolved, since the flat had become vacant, but it seemed to have escalated. It said that although the flat above hers remained unoccupied, it continued to receive calls all through the night, up to eight voice mails per night each one up to six minutes long. Its internal correspondence dated 7 March 2022, shows that it appropriately identified the resident’s vulnerabilities due to her mental health and made referrals to social care and mental health services for their intervention.
It concluded that despite the property being empty, the resident believed that other resident’s in the block were working on behalf of the previous resident’s to harass her. This Service has not been provided with evidence substantiating these repeated contacts or reports, but it is clear from the resident’s letters of complaint that she still had concerns about noise from the flat above hers and, that she felt the matter had not been satisfactorily addressed.
The landlord inspected the flat above the resident’s to confirm that it was empty and that it was not accessible after she complained to it in February 2022. It noted in its internal email dated 14 March 2022 that it had visited the property on 7 March 2022, but that the lock had been glued which resulted in the locks being changed. It completed another visit to the property on 15 March 2022 and noted that the flat was empty. The landlord has therefore acted in accordance with its ASB policy in arranging this visit, even though it had previously maintained that the flat was empty, demonstrating that it took the resident’s concerns seriously.
It also took steps to investigate the resident’s reports of harassment and verbal abuse against a neighbour. Whilst the landlord initially informed her in its stage one response that it had not been able to identify the neighbour, its internal communication dated 14 March 2022, noted that it had been able to find the person and that it had interviewed them about the allegations. The landlord conveyed the outcome of its investigation to the resident in its stage two response and assured her that the resident had been advised to ensure that they do not shine their headlights towards her property at night. It also assured her that the flat was empty and explained that it had not received any similar reports or complaints from other resident’s of the block and that it had therefore not been able to substantiate the reports.
In addition to its investigation of the resident’s complaint, its stage one response to the resident indicated that it had visited her to discuss her concerns about the flat. Its internal email dated 2 March 2022, noted that it may be beneficial to the resident if she moved to a bungalow, as she was living at the bottom of a block of flats. It therefore agreed to increase her housing priority to assist her in securing a more suitable property. It also made arrangements for an officer to visit her and assist her with updating her application and setting it up for automatic bids. The landlord’s actions here were appropriate demonstrating that it had applied a person-centred approach in dealing with the resident’s reports and that it took her concerns seriously.
The landlord informed this Service on 10 August 2022, that its sheltered housing team were working closely with its housing allocations or voids team with regards to the empty flat above the resident. This Service has seen records of its internal discussions, and points put forward for the property to either remain vacant until the resident was rehoused or marked as a sensitive let. Its housing allocations policy states that it may carry out sensitive letting of individual properties where there may be a requirement to assist in dealing with issues that impact on a small, specific location that may be only 1 dwelling within an estate. The landlord’s actions go above and beyond its obligations set out in its policies and demonstrates that it dealt sensitively with the resident’s concerns. It is also noted that the landlord had put measures in place to facilitate the resident’s move to alternative accommodation.
Whilst this Service sympathises with the resident, in light of her concerns and experiences, the evidence substantiates that the landlord had followed the right protocol in investigating her reports of ASB. It took her concerns as a resident seriously in listening to her, treating her fairly by installing noise equipment in an attempt to obtain evidence and in engaging with her in the months leading to the time the property became vacant. When it continued to receive reports of further noise disturbance from the resident, concerning the flat above hers, it visited the property twice to satisfy itself that the flat was not being occupied unlawfully. It also worked collaboratively with external organisations such as the mental health team, her doctor and internally with its social services, housing team and environmental services team to support her. This shows that it recognised the resident’s vulnerabilities and worked with key partners in a positive way to ensure that the resident was supported throughout this time.
Based on the evidence seen by this Service, the landlord took reasonable and proportionate steps to investigate the resident’s reports of ASB. The landlord followed its policy position, responded appropriately to the resident’s needs and worked in partnership with appropriate agencies to support her. It also put plans in motion for a longer-term resolution to assist her in securing alternative accommodation. This shows that it actively listened, that it was customer and solution focused, despite not being able to evidence any occurrence of noise nuisance and on-going ASB.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s report of noise nuisance and anti-social behaviour.

Reasons

The landlord acted in accordance with its ASB policy and took reasonable steps to address the resident’s concerns. It was unable to take enforcement action against her neighbours, as there was insufficient evidence to substantiate her reports of ASB.
It worked in partnership with its internal departments to determine any support the resident might require, and it recognised that a more suitable accommodation, such as a bungalow, as opposed to a ground floor flat may be more beneficial to her. In accordance with its housing allocation policy, it identified that the resident’s vulnerability might preclude her from fully participating in the choice homes scheme and it assessed the need to put measures in place to mitigate this.

Recommendations

The landlord to consider the findings of the Ombudsman’s spotlight report on noise complaints and self-assess against the report.