Hackney Council (202000552)

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REPORT

COMPLAINT 202000552

Hackney Council

31 August 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 is about:
1. The landlord’s handling of the resident’s reports of antisocial behaviour (ASB).
2. The landlord’s handling of the resident’s request to be rehoused.

Background and summary of events

The ASB police and procedure

The landlord’s ASB policy states: “There are three main parts to how we tackle antisocial behaviour. These are:
1. preventing and discouraging people from acting in an antisocial way;
2. taking quick and appropriate action when needed; and
3. supporting people to make positive changes to their behaviour.”
The landlord’s ASB procedure states:
1. “Our approach to dealing with antisocial behaviour is based on RESOLVE ASB’s ‘incremental model’. The ‘incremental model’ is a way of dealing with antisocial behaviour. This means we will:
  1. help people to deal with the problem themselves or using mediation.
2. Our Housing Management Service is responsible for dealing with antisocial behaviour. Here are contact details for our housing offices.
3. Mediation is a fast, effective and confidential service provided by specialist mediators. Mediators work with people who are having problems to help them communicate more effectively and find solutions that will work for them. Mediation is a voluntary process and is particularly suited to circumstances where two or more people are involved in a disagreement, for example over a noise problem.
4. Our Noise Service investigates complaints about noise. Environmental officers can deal with complaints that are likely to cause a legal nuisance, for example loud music, barking dogs, banging and shouting
5. In some situations, we will close your case even if you do not agree, if we are satisfied that we have done everything we reasonably can to deal with the problem.”
The ASB procedure states that “central to our commitment is support for witnesses and others suffering the effects of antisocial behaviour”, and “if you are a witness or are affected by antisocial behaviour, we will … refer you to appropriate support and advice services if needed”.
The landlord’s procedure for “New Transfer applications – Introductory and Secure Tenancies”, states that with secure tenants, the landlord should arrange for the tenant to complete a form, then approve the application to go onto the Council’s Housing Register after checks have been made. Once on the Register, the application will be prioritised in the same way as all other applicants.
The Council’s Lettings Policy has the following priority bands in descending order: Emergency, Urgent, Priority, Homeless and General. With regards to Social Priority:
1. ““A” social priority which will attract 100 points and places you in the Urgent Band.
2. “B” social priority will attract 10 points and place you in the General Band”.
The policy further states “reasonable enquiries will be made to judge the severity of the threat or risk and to ensure that a move will eliminate or minimise the future risk to life. The final decision on whether an award is appropriate will be made by the appropriate designated officer and will be informed by feedback he or she receives from the police, local neighbourhood offices and other professional/advisory agencies as appropriate”.

Summary of Events

The resident moved into her property in 2018. The resident’s correspondence confirms that she considers her neighbour’s (flat A) actions over this time to be intimidating – these actions include standing outside her doorstep and staring into her property, covering up her window with bulky items on occasions and showing the middle finger to her CCTV camera.
On 10 February 2020 the resident raised concerns about the handling of her ASB case by her housing officer in the Neighbourhood Team who she said had poor communication and a lack of compassion. The resident noted that the housing officer had not met with her or listened to recordings. The resident also expressed dissatisfaction that the housing officer advised her on 24 January 2020 that she could not prevent the neighbour at flat A from looking into and standing outside her property. The resident also complained of noise from the flat upstairs (flat B) throughout the night from a machine and banging/slamming noises. She noted that the Council’s noise pollution team had attended on 20 October 2010 and that the landlord agreed to install a monitor. The leaseholder of flat B rents out the property to sub-tenants.
The resident also confirmed in her email of 10 February 2020 that she had engaged with mediation with her neighbour, arranged by the landlord, although she was concerned about counter-allegations and that she was not believed.
The resident wrote to the landlord on 3 May 2020 reiterating her concerns about the handling of her case, stating that she had provided evidence, engaged in meditation, contacted the noise pollution team and the police but had been made out to be a “liar”. She advised that she wanted a transfer. The landlord sent a complaint response on 26 May 2020 stating that it needed supporting information to improve her priority for a transfer and that the final decision would lay with the Council’s Rehousing Team. It advised that the police had recently advised that it did not support her application for an urgent move, and that it could advise further about the resident’s housing options after the resident provided supporting documents. With regards to flat A the landlord stated that it was liaising with the mediator, and that the police had advised it had closed her case due to insufficient evidence to take further action and it (the police) was of the opinion this was a general neighbour nuisance matter. With regards to flat B, the landlord stated that it would not install soundproofing as the building met building regulations and that it would provide details of its noise app. It advised that it would request the installation of its noise recording equipment although this would not happen soon because of the Covid-19 lockdown and the waiting list. The landlord further stated that it had visited the residents of flat B who were not in therefore it would write to them. It also asked the resident to keep a log of all noise.
On 29 May 2020 the landlord sent the resident a transfer form which she returned.
On 30 May 2020, the resident reported noise nuisance from flat B. On 8 June 2020 the landlord’s ASB Team registered a new case to investigate the resident’s concerns about noise from flat B. After several attempts to contact the resident, on 14 July 2020 the landlord interviewed the resident by phone who advised that she was experiencing noise from creaking doors and bed springs from the flat upstairs. On 16 and 21 July 2020 the landlord emailed the resident, offering the noise app so that the resident could make recordings of alleged noise nuisance and details of the out of hours Noise Pollution Team. It advised that it could make a referral to its Resident Sustainment Team. On 23 July 2020 the team wrote to the resident advising her of agencies that could provide emotional and mental health support. The team also advised the resident that it could make a referral to a floating support worker to assist her with making a transfer, although this would be dependent on strong evidence of ASB, and/or a mutual exchange. It is understood the floating support service closed the resident’s case as it assessed that she did not need its support.
The resident provided 20 recordings via the noise app for the period 15 to 27 July 2020 following which, on 27 July 2020, the landlord suggested mediation as the noise was considered to be domestic living noise. The landlord’s internal correspondence indicates that the resident “did provide a small number of noise app recordings of a creaking noise (possibly a door or old bed springs) but there has not been any evidence of deliberate/persistent/intrusive noise. The recordings were mainly all at around 07:00am and … are domestic noise”.
The landlord has provided evidence that from 15 July 2020 its ASB team has written to and worked with the leaseholder of flat B to investigate the resident’s allegations of noise. The leaseholder agreed to monitor the situation and contacted his tenant. On 13 August 2020 the landlord informed the resident that it had discussed the issues with the leaseholder of the flat above who had visited his tenants to discuss the concerns the resident had raised. The landlord also noted that no further noise app recordings had been received since 27 July 2020 and asked for an update.
Following an exchange of correspondence about the resident’s prospect of a transfer, on 21 August 2020 the landlord made a referral to the Council’s Adult Protection team which in turn made a referral to Mental Health Services.
On 26 August 2020, the landlord made a referral to the Council’s Rehousing Team. On 27 August 2020, the Council’s Rehousing Team awarded the resident Band B – Social priority for rehousing under the Council’s choice-based lettings allocation scheme.
On 27 August 2020 the landlord responded to a complaint made by the resident about its handling of her reports about flat B, summarising the action the ASB team had taken. It also advised that the resident should inform the Neighbourhood Team if she was still experiencing issues with flat A.
On 7 September 2020 the landlord wrote again to the leaseholder of flat B asking him to investigate and remedy any internal fittings that may be creating a squeaking sound. Also, on 7 September 2020 the landlord emailed the resident to ask if she was continuing to experience noise nuisance from flat B as no further recordings had been submitted. It advised, however, that it could not take legal action to prevent normal domestic activity, and it considered that the resident had reported domestic noise exacerbated by poor sound insulation. The landlord also noted that it had previously suggested mediation to the resident and had written to the leaseholder again that day. After the resident responded stating that she did not wish to engage with the ASB officer, on 8 September 2020 the landlord advised that a different ASB officer had been assigned the case.
On 22 September 2020 the resident wrote to the landlord reasserting that the neighbour at flat A had “bullied, initiated, manipulated, threatened, stalked…” her and that she felt neglected by the Neighbourhood Team. The resident advised of the effect on her, which include panic attacks, anxiety and depression, and advised that she had not been staying at her property.
On 25 September 2020 the ASB team sent another email asking if it could assist with any issues but did not receive a response.
On 6 October 2020 the resident submitted a complaint stating that she felt frightened and bullied by her neighbour in flat A and had not been staying in her flat since late July 2020. She also stated that she had not been able to sleep due to noise from the flat B.
In response to the complaint of 22 September 2020 and having spoken to the resident on 9 October 2020, the landlord on 12 October 2020 wrote to the resident advising that another, senior member of staff would replace the housing officer as her point of contact.
On 18 and 31 October 2020 the resident sent further emails reiterating her concerns about her neighbours and stating that she would not stop complaining until she was transferred. On 2 November 2020 the resident reported that the neighbour had made a threatening comment the day before.
On 4 November 2020 the landlord responded to the resident’s complaints at the Resolution stage of its complaints procedure. It advised that “since you initially raised the issues of ASB some 16 or so months ago… has included, arranging mediation, liaising with your neighbours by way of interviews and writing letters, liaising intensely with the police, making referrals to (the Council’s) Adult Safeguarding Team in response to you expressing concerns about your mental health.” The landlord noted that the resident had involved the police on several occasions and that the police considered that there was insufficient evidence to take the case forward and did not support the resident’s transfer request. The landlord also noted that it had sought to provide support by making referrals to the Council’s Adult Social Care team in the Social Services department on three occasions, and that it would chase the latest referral.
With regards to flat B, the landlord summarised the action taken on the ASB case since 8 June 2020 noting that it had conducted an initial interview with the resident and kept her updated, provided her with the noise app to obtain evidence, made referrals to provide the resident with additional support and spoke with the leaseholder responsible for his tenants. The landlord confirmed that the resident’s recordings did not show a breach statutory noise therefore it could not take action against the leaseholder. The landlord also noted that its partner floating tenancy support service had recently assessed the resident but did not identify any particular support needs. In summary the landlord did not uphold the resident’s complaint as it did not identify any service failure.
The landlord also asked the resident to keep it updated on the police investigation into the incident on 1 November 2020 whereby the neighbour made a threatening comment. It also advised that it would visit the resident’s neighbours once lockdown restrictions had been removed.
On 11 November 2020, the resident escalated the complaint stating that her complaint was going round in circles and that it had taken the landlord over a year to assign her case to the ASB team. She advised that she would be meeting with the police on 12 November 2020.
On 27 November 2020 the landlord apologised for the delay in investigating the resident’s complaint which was due to staff absence. On 7 December 2020 the landlord made a referral to Victim Support.
The landlord responded to the resident’s complaint on 14 December 2020. It provided a chronology of actions since February 2020 and stated that it was satisfied that both the Neighbourhood Team and the ASB Team had investigated the resident’s reports of ASB from her neighbour in line with relevant policies and procedures. The landlord noted that it had arranged mediation; interviewed neighbours and wrote letters where appropriate; liaised with the police; made referrals to the appropriate agencies and awarded a transfer Band B on 27 August 2020. The landlord noted that during the mediation the neighbour denied all allegations made against her and that the police had stated that it did not have sufficient evidence to support the resident’s request for a housing transfer. The landlord also stated that noise recordings previously provided did not show a statutory nuisance and it would install a noise recording machine when Covid-19 restrictions were lifted.
The landlord also stated that it understood that the resident had not attended the police meeting on 12 November 2020 and asked for clarification.

Further complaint

On 8 December 2020 the landlord’s new ASB officer emailed the resident asking her to provide updates on her ASB case. The resident emailed back on the same day to ask what updates had already been provided to the ASB officer. After the resident did not receive a response, she made a complaint on 24 January 2021. 250
On 25 January 2021, the landlord advised that it was awaiting further information from the police. On 28 January 2021 the police advised the landlord that it had logged several calls from the resident but did not have an open case due to insufficient evidence. On 29 January 2019 the landlord advised that a senior staff member would consider her case and that it would respond on 4 February 2021. On the same day the landlord made a referral to its Resident Sustainment Team to check on the resident in the interim.
In the Stage 1 complaint response the landlord noted that the resident had not reported new incidents of ASB in respect of her neighbour at flat A since 8 December 2020, and that the police was not actively investigating as there was insufficient evidence. It asked the resident whether she wished to consider mediation. With regards to communication the landlord noted that it had contacted the resident on 8 December 2020, and on 25 and 29 January 2021. It agreed that there was a slight delay in communication during this period for which it apologised. It committed to maintain contact every 10 working days in February and March 2021 whilst the case was active. With regards to the resident’s statement that she was vulnerable the landlord stated that the ASB team was currently working with the Resident Sustainment Team but that two previous referrals to the Adult Social Care team had been closed. With regards to the resident’s request for rehousing, it noted that it had registered her application and provided her with the banding and information about the bidding process. The landlord concluded by stating that it had addressed all issues and had followed its procedures.
On 4 February 2021 the landlord asked the resident for any details of any ASB incidents from 8 December 2020.
On 5 February 2021 the resident made a referral to police stating that her sister had been contacted and threatened by a relative of her neighbour at flat A. The resident informed the landlord which emailed the police for further information on the same day.
On 18 February 2021 the landlord wrote to the resident advising that its ASB team was still awaiting reports of incidents from 8 December 2020. It advised that the police had advised that there was no case open but that the ASB Team was contacting the police again about the incident reported on 5 February 2021. On 20 February 2020 the police advised that it was an “unproven allegation” and that the resident’s sister should contact it directly as it had tried to contact her on the phone without success.
On 8 March 2019, the landlord again asked the resident to send further information to its ASB Team. There is no evidence that the resident did so in response.
On 19 March 2021, the landlord sent the Stage 2 response. It noted the previous complaint response of 14 December 2020 had found that its Neighbourhood Team and ASB Team had followed its policies and procedures. Regarding the new complaint, the landlord noted that it had contacted the resident on 8 December 2020 and 29 January 2021, and that it had apologised for delays in communication during that period. After the Stage 1 response advised of the further action the resident should take to progress her ASB case the landlord sent updates on 18 February 2021 and 8 March 2021. The landlord noted that it contacted the police about the resident’s report of 5 February 2021, and that the police advised that resident’s relative needed to contact it directly and it had tried to contact the resident about this but had been unsuccessful. The landlord noted that the police also had no open investigations and were not taking any further action at this time, therefore it had not contacted the alleged perpetrator due to the lack of reported ASB incidents. The landlord concluded by reminding the resident that she needed to make reports of recent ASB incidents and that it had taken appropriate action in line with its ASB procedure.
The landlord sent the resident a letter confirming the closure of her complaint on 1 April 2021, reissued on 21 April 2021. The reasons provided included no reports for over three months, insufficient evidence, the resident not staying in the property for the previous eight months, the Complaints Team completing a case review and the police taking no further action. In the interim the landlord made another referral to the Council’s Adult Social Care team on 9 April 2021 after a phone call with the resident where she expressed dissatisfaction with her housing circumstances.
The parties have advised this Service that since the complaint response of 21 April 2021there has been further contact between the parties, and that the landlord has opened a new ASB case. As the Ombudsman can only investigate those matters that have completed the landlord’s complaints procedure, whereby the landlord’s has had an opportunity to consider and resolve matters complained about, this investigation has not considered matters that have occurred subsequent to 21 April 2021.

Assessment and findings

The landlord’s handling of the resident’s reports of antisocial behaviour (ASB)

It is important to reiterate at the outset that it is not for this Service to determine if the behaviour evidenced here constituted ASB, as that was a judgement which fell to the landlord to determine. It must also be recognised that responsibility for ASB lies with the perpetrator, not the landlord. The landlord, however, has responsibility to ensure that it takes appropriate and proportionate action to address and seek to resolve reported ASB, and that it has adequate and effective procedures in place for doing so.
It should also be noted that a resolution which suits all parties may not be possible in cases where there are lifestyle differences or personality clashes, resulting in neighbour disputes rather than ASB, for example
Upon receiving reports of alleged ASB the landlord first needs to gather evidence to establish whether the behaviour is unreasonable and constitutes ASB. Its procedures must also ensure that it remains impartial and does not seek to apportion responsibility for behaviour until it has established the facts. It is therefore important that a landlord has in place procedures to ensure reports of ASB are appropriately and effectively responded to. The landlord’s policy and procedure for addressing ASB allowed for the prioritisation of reports and provided a number of measures that could be taken either in isolation or in conjunction, depending on the severity and urgency of the reports. This Service must therefore consider whether the landlord followed its own procedure in response to the reported ASB.
In this case, the landlord’s response of 4 November 2020 confirms that it initially contacted the resident’s neighbour at Flat A about the resident’s report. This was appropriate and in line with the landlord’s incremental approach as in the first instance the alleged perpetrator of ASB should be given an opportunity to respond and where appropriate, to take steps to change their behaviour and to put things right. In speaking with an alleged perpetrator about a matter reported, the landlord is not making a finding of fact but facilitating an open dialogue and a reminder of tenancy responsibilities, where relevant, so as to find an early resolution to the case.
The landlord subsequently referred the resident and flat A to mediation. This was an option in line with the guidance within the ASB procedure. Mediation was appropriate as the process is intended to allow people who are having problems to better understand the point of view of the other party and reach a mutually agreed solution, facilitated by the mediator.
Thereafter, the resident continued to express dissatisfaction with the situation with flat A. For the landlord to proceed to take formal tenancy action against a resident, there has to be sufficiently strong evidence of a tenancy breach that would make taking such action reasonable and proportionate. In this regard, it was appropriate that the landlord sought supporting evidence from the police to whom the resident had reported incidents. With regards to the resident’s reports of a threatening comment made on 1 November 2020 and the report made concerning her sister, the landlord contacted the police on each occasion thereby taking steps to ascertain whether the was evidence to support taking further action against flat A.
It should be noted the landlord had a responsibility to investigate verbally abusive behaviour itself – this was not something necessarily simply for the police or for the police alone as verbal abuse may not be a crime. However, it is not evident that the resident attended the police interview of 12 November 2020 or further pursued the incident of 1 November 2020 with the landlord, nor is it evident that the resident’s sister contacted the landlord or the police about the incident of 5 February 2020. Without the resident following up on these reports after being requested to, the landlord had reason not to contact the neighbour at Flat A about them. It was also appropriate that the landlord reminded the resident in its response of 19 March 2021 to provide reports of recent incidents as the primary focus when dealing with an ASB case is to investigate and resolve the issues that are ‘live’ at that time.
The resident in her correspondence to the landlord expressed her distress and dissatisfaction with the situation at her property and the effect on her. The Ombudsman acknowledges this and the fact that she has decided to stay away from her property. The resident’s distress did not oblige the landlord to take formal action against the neighbour or to provide the resident with the outcome she was seeking without there being sufficiently strong supporting evidence. However, the landlord recognised the resident’s distress and made referrals to the Council’s Social Services department and its Resident Sustainment Team in line with the policy commitment to provide support to those who are affected by ASB.
The resident also raised concerns about noise from flat B on 30 May 2020. The landlord took appropriate steps to establish what noise the resident was experiencing at that time by interviewing the resident and obtaining recordings through its noise app. Day-to-day living noise is not indicative of anti-social behaviour unless it is extreme. The noise app provided objective evidence of noise and enabled the landlord to assess what, if any, further action it could take. The landlord has provided evidence that it assessed the recordings thereby taking an informed position on the resident’s reports and that it explained its position to the resident thereby managing her expectations.
The landlord has also provided evidence that it sought to prevent the noise reported occurring by liaising with the leaseholder of flat B who visited the flat and investigated the sources of the noise. It was also reasonable that the landlord suggested mediation as this was in line with the ASB policy and because mediation is particularly effective in resolving low level neighbour disputes arising from lifestyle issues.

The landlord’s handling of the resident’s request to be rehoused

Whilst neighbour disputes can be extremely stressful and upsetting, the landlord is not required to move a resident due to ongoing neighbour disputes; ordinarily, it is the responsibility of residents themselves to resolve these and/or to find a way to live together with minimal impact of any mutual dislike.
In this case, the resident advised that she wanted a transfer as a resolution to her ASB case. The landlord followed its procedure on new transfer applications by arranging for the resident to complete the necessary transfer form and registering her application. Furthermore, by liaising with the police the landlord took steps in line with the Lettings Policy to identify any evidence to support the resident being placed in a higher priority transfer band as the policy states that reasonable enquiries will be made to judge the severity of the threat or risk.
With regards to the actual priority band awarded to the resident, this is a matter that the Ombudsman cannot adjudicate on. This is because complaints about applications for rehousing that meet the reasonable preference criteria including complaints about the assessment of such applications, the award of points, banding or a decision that the application does not qualify for reasonable preference fall under the remit of the Local Government and Social Care Ombudsman.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its handling of the resident’s reports of ASB.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its handling of the resident’s request to be rehoused.

Reasons

The landlord has taken action on the resident’s ASB case in line with its ASB policy and procedure. It initially contacted the resident’s neighbour at Flat A about the resident’s reports which was in line with the landlord’s incremental approach. The landlord subsequently referred the resident and flat A to mediation in line with the guidance within the ASB procedure. It was appropriate that the landlord sought supporting evidence from the police, to whom the resident had reported incidents, to inform whether it could take formal action against flat A.
The landlord also recognised the resident’s distress and made referrals to the Council’s Social Services department and its Resident Sustainment Team in line with the policy commitment to provide support to those who are affected by ASB.
With regards to flat B, the landlord has provided evidence that it assessed the recordings thereby taking an informed position on the resident’s reports and that it explained its position to the resident thereby managing her expectations. The landlord also investigated, by liaising with the leaseholder, the cause of the noise and offered mediation in line with the ASB procedure.
With regards to the landlord’s handling of the resident’s request to be rehoused, the landlord followed its procedure on new transfer applications by arranging for the resident to complete the necessary transfer form and registering her application. Furthermore, by liaising with the police the landlord took steps in line with the Lettings Policy to identify any evidence to support the resident being placed in a higher priority transfer band.