Kirklees Council (202004093)

REPORT

COMPLAINT 202004093

Kirklees Council

4 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 the landlord’s handling of the residents reports of antisocial behaviour (ASB).

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
3. Whilst the Ombudsman notes the resident has advised that the ASB issues have been ongoing for the last 10 years, the aspects considered within this case will be based on events which occurred from June 2019.
4. This is in accordance with paragraph 39e of the Housing Ombudsman Scheme, which states the Ombudsman will not investigate complaints which were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising.
5. The representative has also provided the Ombudsman with updates regarding further incidents which were either still under investigation or occurred after the landlord’s final resolution. As these reports were still under investigation and not covered within the landlord’s ICP (internal complaints process), this would be something that the resident needs to raise with the landlord directly if she is unhappy with the outcome, to allow it to investigate it as a complaint.

Background and summary of events

Summary

6. The resident is an assured tenant of the landlord, living in a 1 bedroom first floor flat.
7. The landlord has advised that it is not aware of any vulnerabilities since the resident moved into the property in 2003.
8. It is noted that there has been a significant amount of correspondence between the representative and the landlord. Whilst the representative’s dissatisfaction with the landlord is duly noted, the report will not be addressing each and every specific issue or incident. Rather, the Ombudsman has carefully considered all the available evidence and this report will take a view on the landlord’s overall handling of the matter.

Background

9. Following reports of noise nuisance, on 11 June 2019 the landlord sent the resident log sheets to complete and advised that once a set was completed, to contact the landlord in order for it to arrange collection.
10. A warning letter was sent to the neighbour in August 2019. The landlord also sent out a letter to all residents requesting them to respect their neighbour’s privacy when using the communal areas.
11. In September 2019, the landlord updated the resident and all other tenants who had raised reports against the neighbour that a warning letter had been issued. It also noted that there were counter allegations of provocation and requested all residents to remain civil with each other. It advised the situation would continue to be monitored. The landlord confirmed the actions it had agreed with the neighbour to manage the ASB reports.
12. On 28 November 2019 the landlord wrote to all the residents to advise that the case was now closed as there were no more complaints made to warrant any further action. The resident’s representative acknowledged the correspondence, advising that the neighbour continued to sporadically play music at high levels and intimidate other residents within the property. The landlord responded to advising that whilst the case was closed, it would still monitor the situation. The landlord asked that the resident log any further noise complaints with the noise team.
13. The resident’s representative made a further report in December 2019 regarding loud music being played early in the morning. He felt this was in retaliation to the bad night the resident had with a chest infection, as she was coughing through the night. The landlord asked for the reports to be made to the noise team.
14. The landlord also received communication from an independent organisation on behalf of the representative requesting that the case not be closed. The landlord did not respond due to authorisation issues.
15. The landlord wrote to the resident on 10 December 2019 to explain that it had received communication from the Housing Ombudsman about the progress of the case. It advised it had a case at stage 1 however the resident’s representative advised it was unable to speak with the resident through an email dated 22 September 2019. As a result, the landlord was unable to progress the case. The landlord welcomed the opportunity to speak with the resident.
16. More communications about further incidents took place in December 2019, with the representative raising concerns about noise from the neighbour. He raised concerns about the impact it was having on the resident’s health and questioned why the resident in the flat below was allowed to move there. The representative advised he had to call the police regarding the concerns with the neighbour below. The landlord spoke with the resident about considering a move to a bungalow due to her health concerns and mobility issues however this was declined as she did not understand why she would have to move when she was not the one causing issues. The landlord also confirmed to the representative that the property below had been correctly allocated.
17. An email from the noise team sent to the landlord in December 2019  confirmed that visits were made to the property in September 2019 and November 2019, and it was advised that the team did not witness anything during the visits.
18. On 13 January 2020 the representative wrote to the MP regarding the problems with ASB from her neighbour. He explained that the situation got particularly bad in 2019 with the neighbour playing loud music and displaying aggressive behaviour. The representative advised that the landlord had not done anything to resolve the situation despite other residents also complaining. He advised that he was looking to take the landlord to court over the lack of action.
19. The landlord received an enquiry from the local MP in February 2020. It responded on 28 February 2020 to advise of the actions it had taken over the last 12 months.
20. The landlord noted that it was advised by the MP’s office that the resident and her representative would not complete further log sheets as they felt that nothing was being done. The landlord explained to the MP’s office that no further action would be taken without log sheets being completed.
21. The landlord spoke with the resident in March 2020 who advised that her representative had sent some log sheets to the noise team regarding the barking dog and door slamming. Evidence from the landlord to the Ombudsman indicates that it did speak with the noise team and were advised that no reports were received since 2019.
22. The resident made further reports in May 2020 and June 2020 regarding different neighbours and in response the landlord sent log sheets and remained in communication with the representative about the ongoing incidents. The landlord, as evidenced to the Ombudsman, was in contact with the neighbours involved about the allegations.
23. In June 2020 the resident returned some log sheets to the landlord regarding the recent ASB reports which it acknowledged the receipt of. The representative also reported incidents of intimidation to the police and provided the landlord with details of this. The landlord also advised the representative that it had offered the resident the option to move to an alternative accommodation on numerous occasions due to her health needs however the representative advised that the resident was looking to move from the area completely as it appeared there were drug related issues in the area. The landlord also advised the resident that any alleged illegal activity should be reported to the police. It requested an update following the resident updating the police regarding alleged incidents. The landlord confirmed it was reopening the case regarding the noise nuisance from the neighbour.
24. The noise team communicated with the neighbour regarding the noise complaints. The landlord also liaised with the police about the ASB reports.
25. The representative mentioned that other residents had concerns about ASB with their neighbours and the landlord explained that the other residents would need to make their own reports about the incidents.
26. The resident indicated that she was interested in bungalows in the area and the landlord explained how she would be able to apply to move homes. The landlord advised that it was important for the resident to include her medical needs on the application as this would affect the banding she would be awarded and what type of properties she would be able to bid for.
27. The landlord’s records confirm that the reports of ASB through May 2020 to July 2020 were also reported to the police. The landlord liaised with the police about the incidents and visits were made to the neighbours to investigate the matters raised.
28. In August 2020 the landlord had difficulties reaching the resident. It noted that it checked its systems and there was no application put in by the resident to move, despite her showing interest in this option.
29. Later a matron box (sound monitoring equipment) was installed in the resident’s property. The landlord’s records indicate that although the noise was audible, it was not frequent enough to be classed as a nuisance however a warning letter was sent out to the resident’s neighbour.
30. On 7 August 2020 the representative contacted the landlord to make a formal complaint. He advised that the resident was unhappy as after 10 years of reports, nothing had been done.
31. The landlord acknowledged the resident’s complaint on 17 August 2020 in response to the representative’s correspondence of 7 August 2020. The landlord sent a further email on 8 September 2020 apologising for the delay in its response to the complaint. No date was provided within the email of when the resident would receive her response however, a further email sent the following day confirmed the landlord aimed to respond by 22 September 2020.
32. On 17 September the landlord offered to have a meeting with the resident, the Housing Officer, and the noise team to discuss the residents ongoing concerns.
33. On 23 September 2020 the representative responded to the landlord to advise that he would not be taking part in the meeting as he felt after 10 years of meeting, nothing had been done to resolve the situation. He requested the landlord provide its final response and indicated this was his third time making this request. The representative chased the final response again on 1 October 2020.
34. The landlord sent its first response on 2 October 2020 summarising the events that had occurred over the years regarding the resident’s ASB reports. It detailed the actions that it had taken with regards to the reports made, including, reviewing log sheets, sending warning letters to neighbours as well as communal letters regarding conduct, installing sound recording equipment and the communication it had with the resident. It noted the representative explained that the resident would be looking to move out of the area, however, that the resident had advised she would consider rehousing and its Housing Officer would be able to assist with this. Based on the evidence it had, the landlord found that it had taken time and worked with the relevant departments to investigate the matters raised within the correct timeframes.
35. The representative responded the same day to advise he was unhappy with the response and requested the case escalated.
36. In December 2020 the landlord wrote to the resident to explain its complaint process and advise that it had tried to contact the resident to begin work with her to resolve the matters however the representative had declined this and therefore things were not able to progress. It explained that it would still welcome the opportunity to speak with the resident and attached a copy of its complaint procedure. The representative responded to advise that the resident did not wish to speak to landlord regarding the complaint after 10 years of trying to resolve the matter.
37. Also, in December 2020 the representative contacted the landlord to raise further incidents which occurred with the resident’s neighbour in November 2020 and in December 2020 ad explained that the resident did want to move from her property. The representative confirmed that he did not raise the incident which occurred in December 2020 with the landlord as he felt it would be a waste of time. He explained that even after sound recording equipment was installed, the landlord did not class the noise as a nuisance, and this contradicted the conversation he had with the landlord on 21 August 2020. The representative raised concerns with the call out procedure and felt that the landlord had failed to provide him with a clear response on the matter. He asked for the landlord to now provide the resident with its final response.
38. The landlord responded in January 2021 explaining that the case had not reached its completion of stage one as it had not had the opportunity to speak with the resident and this was the reason it had not issued its final response. The landlord explained that it could request an update on the complaint from the Housing Ombudsman so it could consider the next steps. The representative responded to advise it would wait for the Ombudsman’s decision on the next steps.
39. The landlord provided an update on 4 February 2021 and apologised for the delay in the response due to the pandemic and the effects this had on staff. It confirmed that the resident had received a first response in October 2020 and acknowledged the further ASB reports made which were reported to the police, and currently being dealt with by the noise team. The landlord confirmed that the resident was placed on standby by the noise team and the residents address had been on standby for longer than the noise team would normally allow. It noted that the representative suggested it had not considered previous incidents and the landlord asked for the resident to provide details of any incidents that she felt it had missed. It concluded the findings of the noise recording equipment was statutory noise and the case regarding the noise was closed due to insufficient evidence. The landlord confirmed it would continue to support the resident and advised that it would escalate the complaint to stage 2 however noted that the representative wished to approach this Ombudsman instead.
40. The resident responded on 28 February 2021 to request that the case be escalated to stage 2, reporting further incidents which occurred at the property.
41. In March 2021 the landlord contacted the representative to confirm that it was looking to provide a response to the resident by 1 April 2021.
42. The landlord issued its second stage response on 1 April 2021. It agreed with the outcome at the first stage and acknowledged that since then further reports were made by the resident’s representative. The landlord confirmed the reports were passed on to the Housing Officer to take appropriate action in line with the ASB policy. It noted that there were incidents that the representative reported, relating to other tenant’s interactions with the neighbour however, explained that the tenants involved would need to make the reports respectively. The landlord advised if the resident was unhappy with the response, it would escalate the case to its third and final stage. The representative responded the same day to escalate the case and explained that as a resolution, he would like the resident’s neighbour to be moved.
43. The representative chased an update on the complaint on 20 April 2021. The landlord provided its stage 3 response on 21 April 2021, and it explained that the response did not cover the more recent incidents that occurred and were currently being investigated by the Housing Officer. The response advised that the landlord was satisfied that its process for handling ASB cases was followed, and relevant information provided to the resident. It confirmed that the Housing Officer would continue to work with the resident and her neighbours.

Assessment and finding

44. When investigating complaints about ASB, it is not the role of the Ombudsman to determine whether the ASB exists as alleged, rather, the Ombudsman’s role is to review the evidence that is available and determine whether the landlord acted in line with its duties, obligations and procedure as set out in any relevant policies.
45. I appreciate the representative has advised that resident had experienced ASB issues for many years, but as noted above, the Ombudsman will not investigate complaints which were not brought to the attention of the landlord as a formal complaint within a reasonable period, usually six months.
46. The Ombudsman has not seen any evidence which suggests that the landlord has acted inappropriately in relation to the incidents which occurred. The landlord responded promptly to reports made, the resident’s reports were investigated, and the landlord was in regular communication with the resident . Diary sheets were sent out to the resident and her representative and reviewed following their return. Evidence provided to the Ombudsman also shows that the landlord was in contact with the perpetrators in the form of calls and warning letters about their behaviour to try to resolve the issues. I note that the reports of ASB were made against different neighbours and the landlord reasonably advised the representative that incidents about the different neighbours would be dealt with separately.
47. The landlord can only rely on the evidence it has received and in order to take any formal action, it would need to be sure that the evidence demonstrates ASB. In this instance, it was unable to prove that the noise the resident was experiencing was frequent enough to constitute noise nuisance. Evidence provided to the Ombudsman from the landlord indicates that the neighbour denied the allegations made, therefore, without substantial evidence or witnesses to the reports, the landlord was limited in actions that it was able to take. As such, the Ombudsman is unable to find Ombudsman failure against the landlord with regards to this issue.
48. I note that the landlord has been in communication with the police in regard to the alleged behaviour of the resident’s neighbour however it is unclear from the documentation provided, what the police investigation outcome was.
49. Whilst there are no clear timescales to the handling of ASB reports within the ASB policy, the Ombudsman has seen that the actions the landlord has taken are in line with the ASB policy. I note that mediation was not offered in this instance however, based on the nature of the concerns and the resident’s health, this may not have been appropriate. Records provided to the Ombudsman from the landlord also indicate that there had been negative interactions between the neighbours and the representative that also suggest that mediation may not have been appropriate.
50. The landlord also offered to move the resident to an alternative property, given the concerns that the representative raised about her health. I note that whilst the resident was interested in moving to a bungalow, the position changed, and the representative advised that they were looking to move out of the area completely and no application to move was made by the resident. The landlord advised the Ombudsman that it was not aware of vulnerabilities within its tenancy records however based on the information on file, it is clear that the resident has some health issues. It is reasonable that the landlord considered offering the resident the option to move to a more suitable property based on her current health needs. The Ombudsman recommends that the resident updates the landlord on her current health needs to ensure that it provides the appropriate support.
51. The representative has stated that he considers that the ASB and the landlord’s handling of it has exacerbated the resident’s medical conditions. However, it is beyond the expertise of the Ombudsman to make a determination on whether there was a direct link between these matters and the resident’s health. The resident therefore may wish to seek independent advice on making a personal injury claim if she considers that her health has been affected by any action or lack thereof by the landlord.
52. The landlord’s complaint process has three stages; Stage 1 complaint, referral to a manager to review the stage 1 response and provide a stage 2 response. If the resident is unhappy with the stage 2 response from a manager, then the resident can ask for the Customer Care Team Leader, or the Tenant and Leaseholder Panel to review the complaint and offer a final response.
53. The landlord explained to the Ombudsman in December 2020 that the case was completed at its first stage in line with its complaint procedure and it was still willing to work with the resident to try and resolve the complaint in its preferred method of resolving ASB complaints. It also advised that the manager who was appointed to respond at stage 1 was still monitoring the ASB case and would update the file accordingly.
54. I note that the landlord had made attempts to speak with the resident directly but had difficulties doing so in order to progress the case. Whilst the Ombudsman appreciates that the resident may have felt that the landlord should speak with the representative directly, it is not unreasonable that the landlord requested this, particularly as it had not spoken with the resident for some time.
55. There were delays in the landlord providing its response which the representative had to chase, and the Ombudsman agrees that the landlord should have provided clearer timescales within its acknowledgments of when the resident and her representative would expect a response.
56. Although the case did delay in being escalated, the landlord has explained to the representative and the Ombudsman the reasons for this as it was unable to take the case further without speaking to the resident directly. As such, although the delay is noted, the Ombudsman has found no service failure in the complaint handling.

Determination (decision)

57. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s reports of antisocial behaviour.

Reasons

58. The landlord has shown that in instances where the resident has reported ASB, and the perpetrator can be identified, the appropriate actions have been taken in line with its ASB policy. Where insufficient evidence has been found to warrant further legal action, the landlord has explained this to the resident’s representative.

Recommendations

59. The Ombudsman recommends that the landlord provide clearer timescales within its acknowledgment correspondence to keep resident’s more up to date with any investigation it is completing.