Gravesham Borough Council (202113158)

REPORT

COMPLAINT 202113158

Gravesham Borough Council

12 April 2022

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

1. The complaint is about:
   1. The landlord’s handling of the resident’s reports of Anti-Social Behaviour (ASB) by her neighbour.
   2. The landlord’s complaints handling.

Background

2. The resident is the leaseholder of the property. The property is a ground floor 2-bedroom flat, which she purchased in 2017. The landlord is the freeholder.
3. The resident first reported ASB to her landlord in November 2018. She complained that her neighbour was storing excessive amounts of rubbish in the area surrounding her property, which was attracting pests and blocking access. She also reported unreasonable levels of noise at unsociable hours and stated that she believed her neighbour may have changed the flooring in her property as noise transference had increased. The resident continued to report ASB between January and March 2019. She also reported ongoing issues with waste and pests in her neighbour’s property in November 2019. The resident raised further concerns about noise and noise transference in December 2020.
4. The resident made a formal complaint in January 2021, stating that she had endured her neighbour’s behaviour for 3 years but felt that the landlord had failed to take adequate action when her neighbour was breaching the terms of her lease. The resident also alleged that the landlord had concealed information about previous noise issues when she had purchased the property in 2017.
5. At stage 1, the landlord did not uphold the complaint. It described the reports of ASB and the action it had taken in response. At stage 2, the landlord acknowledged additional email evidence provided by the resident and admitted that there had been service failure in some aspects of its response to her reports of ASB, including that its communication had sometimes been poor. The landlord apologised and sent flowers to acknowledge a delay in providing the stage 2 response. After further escalation, a stage 3 response was issued which agreed with the failings identified at stage 2 and noted that the landlord had failed to comply with its complaints handling policy. The landlord offered the resident £250 to reflect the time and trouble taken to bring the complaint.
6. The resident remains dissatisfied with the action taken by the landlord in response to her reports of ASB. She wants the landlord to follow its ASB policies and procedures and to take action against her neighbour. She has also asked the Ombudsman to review the level of compensation offered, as she feels this is insufficient.

Assessment and findings

Handling of reports of ASB

7. The role of the Ombudsman is not to assess whether the behaviour reported by a resident amounts to actionable ASB. Instead, the Ombudsman considers whether the landlord has followed its policies and procedures to investigate and respond to the issues reported, and whether it appropriately communicated its findings and the action it intended to take. The Ombudsman appreciates that the impact of ASB, and any failure on the landlord’s part to take adequate steps to address it, may be cumulative in effect. Low level ASB that has been ongoing for several years may have a significant impact on a resident, and the distress caused may be increased by a persistent failure by the landlord to take action.
8. The landlord’s ASB policy states that it will respond to all reports of ASB within 3 working days, and that an appointment will be made to discuss the complainant’s concerns and agree an action plan.
9. The resident first reported noise and issues with excessive waste in the communal areas of the property on 2 November 2018. She also raised concerns that she had found a knife amongst her neighbour’s rubbish. The landlord responded within 3 working days to inform the resident that it would visit her neighbour, which was in line with the timeframe for a response set out in its ASB policy.
10. The landlord failed to update the resident on the outcome of the visit and there is no evidence that it responded to her email of 13 November 2018 reporting the discovery of a second knife. On 11 December 2018, the landlord provided a summary of the action it had taken, which included providing diary sheets, visiting her neighbour’s property, and writing to the neighbour to remind them of the need to dispose of waste in an appropriate and timely manner. The resident responded to this email with photographic evidence of the accumulation of waste and there is no evidence that she received a reply from the landlord.
11. Whilst the action taken by the landlord in response to the initial reports of ASB was appropriate and proportionate, there were failures in the landlord’s communication, which increased the resident’s frustration and created uncertainty about the action it was taking to support her. The landlord should have followed the requirement of its ASB policy to meet with the resident to agree an action plan. This would have provided an opportunity to explain the process for investigating and responding to reports of ASB, including how evidence would be gathered, what action may be taken and how the landlord would communicate with the resident about her concerns. The landlord should also have ensured that updates were provided within a reasonable time, and that all correspondence from the resident was acknowledged.
12. The resident submitted evidence of ongoing waste accumulation and noise in January 2019, in the form of diary sheets and photographs. The landlord requested that she complete additional diary sheets, which she submitted on 28 January 2019. The landlord’s records show that letters were sent to the resident on 4 and 12 February 2019, although copies have not been provided to this investigation. In the absence of these documents the Ombudsman cannot conclude that the landlord’s assessment or response was reasonable and in line with its policies and procedures.
13. In March 2019, the landlord noted that it had written to the resident’s neighbour about the noise on 12 February 2019. It requested further diary sheets to support the allegations of continued noise, explaining that it would need to evidence that the behaviour had continued since the warning letter was sent. Whilst the landlord’s advice was appropriate, it could have done more at an earlier stage to manage the resident’s expectations about the action it could take and to explain what evidence would be required to support formal action.
14. In its complaint responses, the landlord accepted that its handling of the resident’s reports of ASB did not always meet the required standard. It has acknowledged failings in its communication since November 2019, when issues with pests were reported, noting that it had not always been clear and had sometimes failed to provide regular updates. It also acknowledged that the quality and standard of some of its communications was poor. The landlord’s willingness to investigate its response to the resident’s reports of ASB dating back to 2018 demonstrates a desire to treat the resident fairly and to put things right, which is in line with this Service’s Dispute Resolution Principles.
15. The fact that the landlord acknowledged and identified areas for service improvement indicates that it is willing to learn from complaints and to implement change. The complaint responses did, however, fail to identify and acknowledge that the landlord’s communication with the resident in relation to the reports made between November 2018 and November 2019 could also have been better.
16. Following reports of a pest infestation in November 2019, the landlord sent a warning letter to the resident’s neighbour about the accumulation of waste on 7 February 2020. No further reports of excessive noise or waste were then received by the landlord until December 2020. It was not unreasonable for the landlord to assume the issue had been resolved during this period, although it would have been better if it had followed up with the resident after the warning letter had been sent.
17. On 14 December 2020 the resident reported excessive noise and asked the landlord to confirm the type of flooring in her neighbour’s property. The landlord failed to respond to the resident’s email within the timeframe set out in its policy. A response was provided 8 working days later but this failed to acknowledge the resident’s complaint about ongoing excessive noise. The landlord wrote to the resident’s neighbour to request confirmation as to the type of floor covering but there is no evidence it opened a new case, or discussed a plan of action, prior to the formal complaint. It subsequently missed an opportunity to resolve the matter informally.
18. In response to the reports of ongoing noise, the landlord should have offered diary sheets and explained the importance of continuing to record and report each incident as it occurred. Again, the landlord should have explained its processes and managed the resident’s expectations about the action it could take, noting that it would require evidence if it were to pursue formal action against a tenant for breach of their tenancy agreement.
19. The landlord visited the neighbouring property to inspect the flooring and communicated its findings in the stage 2 response of 2 February 2021, offering to install noise recording equipment. The landlord also sent a warning letter to the resident’s neighbour about rubbish in the communal areas and noise, reminding her of the terms of her tenancy agreement. Finally, in April 2021, the landlord issued a Community Protection Notice requiring the neighbour to remove the rubbish immediately and warning of prosecution. This was an appropriate escalation, given that issues with accumulation of waste had been reported since 2018.
20. Each time ASB was reported, the landlord took some appropriate action to address the resident’s concerns. However, it sometimes failed to follow the requirements of its ASB policy and its communication with the resident outside of the complaints process was poor. Throughout the history of the landlord’s handing of the resident’s reports of ASB, it failed to adequately manage her expectations, until the stage 2 complaint response where it explained the limits of the action it was able to take.
21. The Ombudsman cannot compel the landlord to take formal action against a tenant where it does not feel that there is sufficient evidence to support legal proceedings for breach of tenancy. However, the landlord should seek to assist residents to gather evidence and provide advice, support, and regular updates. In light of the failings identified, the Ombudsman considers that an additional award of compensation is appropriate, to reflect the stress and inconvenience caused to the resident by the landlord’s poor communication and the lack of clarity as to how her concerns were being dealt with.
22. As part of the stage 3 response, the landlord set out its position in relation to the allegation that it failed to inform the resident of an ongoing noise dispute during the sales process. The landlord has stated that the information it provided was accurate. The Ombudsman is unable to review and assess the information shared with the resident at the time of the resident’s purchase. Any allegations of withheld information during the sales process would be more appropriately dealt with via the courts. Given that the landlord has set out its position and that this remains in dispute, the resident may wish to seek independent legal advice if she wishes to pursue this aspect of her complaint further.

Complaints Handling

23. The landlord’s stage 3 response identified that there were failures in its complaints handling, as it did not follow its policies and procedures. The Ombudsman notes that the landlord failed to escalate the stage 1 complaint following its response of 18 January 2021, and that the initial response contained inaccuracies about the previous reports of ASB. There were also significant delays in providing responses at stages 2 and 3. In total, it took the resident 8 months to obtain a final response to her complaint, which was entirely unreasonable in the circumstances.
24. The landlord has apologised and offered the resident £250 compensation in recognition of the time and trouble she had to take to pursue her complaint. The landlord also committed to a review of its complaints handling policy and procedure and made specific comments about the areas for improvement, which align with the requirements of the Ombudsman’s Complaints Handling Code. This includes removal of a third stage in the complaints process and clarity as to how complaints can be escalated. The Ombudsman is therefore satisfied that the landlord has provided sufficient redress to the resident to resolve this aspect of the complaint. 

Determination

25. In accordance with paragraph 54 of the Scheme, there was service failure in the landlord’s handling of the resident’s reports of ASB.
26. In accordance with paragraph 55(b) of the Scheme, the landlord has made an offer of redress to the resident which, in the Ombudsman’s opinion, satisfactorily resolves the complaint about the landlord’s complaints handling.

Orders

27. Within 28 days of the date of this report, the landlord is ordered to:
    1. Pay the resident £200 compensation in recognition of the stress and inconvenience caused by its poor communication with her in relation to her reports of ASB since 2018.

Recommendation

28. It is recommended that the landlord:
    1. Provide training to staff involved in the handling of ASB cases on the frequency and standard of communication required, and the actions the landlord is expected to take in response to reports of ASB, in line with its policies and procedures.