London Borough of Barking and Dagenham (202005383)

REPORT

COMPLAINT 202005383

Barking and Dagenham Council

18 November 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

The complaint is about the landlord’s handling of the resident’s reports concerning antisocial behaviour (ASB).

Background and summary of events

Policies and Procedures

The landlord’s Housing Services ASB Policy states in relation to Risk Assessments, “All officers are to fill out the standard Metropolitan Police Risk assessment form with every client and then scan it and send it to the ASB Coordinator. These forms are to assess the risk (if any) the complainant may be at and their vulnerability. They are also a guide for officers as to what level of intervention and support is needed”.
The Policy states with regards to Action Plans that “All housing officers are to agree an action plan with every complainant and then put this in writing. An action plan is a list of agreed actions (some of which are listed below) to try to resolve the situation. The actions should be for both the housing officer and the complainant to carry out; refer to mediation-housing officer, to keep diary sheets-complainant. This is an important part of the process as it gives the officer an opportunity to explain what can and cannot be done thereby managing expectations of the complainant and also illustrating to the complainant that they are being listened to and action taken. These agreed actions should then be listed along with the results in the closing letter so that all parties are aware of what has taken place”.
The Policy further states “Having visited the complainant, any witnesses, the other party and after considering any other evidence that exists, the housing officer must decide on the appropriate course(s) of action and advise the complainant. Generally, the housing officer should, depending upon the issues, consider the following actions:
1. In case of counter allegations further investigation should be carried out
2. Monitoring (use of ASB Diary Sheets)
3. Referral to Victim Support
4. Referral to Safer Homes
5. Consult with ASB Coordinator
6. Case Review (ensuring notes of review are recorded and evidenced on Capita)
7. Mediation, Community Mediation, Restorative Justice which can be supported by the ASB Team
8. Good Neighbour Agreement
9. Acceptable Behaviour Contract/Parental Contract Agreement
10. Formal letter listing acceptable and unacceptable behaviour (if previous two actions are refused)
11. Letter drop to encourage reporting in the wider community
12. Estate visit with police
13. Written warning to other party in accordance with Conditions of Tenancy
14. Refer to the ASB Standing Case Conference attended by police/ Legal/ YOT and other agencies, in order to agree a joint approach. As a result of this a multi-agency action plan will be agreed to deal with the matter and advise the complainant accordingly.
15. Interview other party on Council premises with other agencies present: police and support services.
16. Joint visit with police
17. Where not specifically a ‘housing’ issue refer to the appropriate agency.
18. Where the nuisance is severe, involves witnessed threats of violence or violence itself then consideration must be given by the housing officer to the possibility of obtaining an injunction as an immediate response. Where this is considered appropriate the housing officer should fill out a legal action justification form and discuss with senior housing officer and ASB coordinator.
19. Witness Service for any witnesses who may need to attend court
20. Other legal remedy for secure tenants, serving of Notice of Seeking possession, demoted tenancy application
21. Environmental Improvements- lighting, security cameras, removal of planting
22. If the perpetrator is an introductory tenant housing officer/senior officer to consider sanction of extending of introductory tenancy following separate process and if the nuisance is severe serve Notice of Possession Proceedings on introductory tenant. (see separate section of Management Manual)”.
The landlord has a two-stage complaints procedure. According to the procedure, at the first stage it should respond within 10 working days. At the second stage, it should respond within 30 working days.

Summary of Facts

By way of background, it is understood that the resident and a neighbour for several years have made allegations and counter-allegations against each other, mainly verbal and written abuse. There have also been incidents of items left in communal areas and pushing. The resident’s representative has provided this Service with handwritten notes of incidents between March 2020 and May 2021 although there are periods within this length of time when no incidents were noted. The representative referred these incidents when complaining to the landlord. The investigation by this Service has therefore focussed on the period from March 2020 onwards.
According to correspondence sent by the resident, in December 2019, the police served a prevention of harassment letter to the resident’s neighbour.
On 26 March 2020 the resident’s representative wrote to the MP expressing concern about the resident’s situation at that time and making reference to his health conditions. He noted that, previously, the installation of cameras had stopped the neighbour from knocking the resident’s door but since then the neighbour had abused the resident from behind his door and out of site of the cameras. The MP consequently contacted the landlord on behalf of the resident.
The resident also made an information request to the police at this time. In response, on 8 April 2020 the police responded noting that there had been over 200 incident call reports.
On 20 April 2020 the representative emailed the landlord listing incidents of verbal abuse and abusive written messages from the neighbour between 21 March 2020 to 3 April 2020. The email confirmed that the police had been called on several occasions. The email described an incident whereby the neighbour was reported to have poured water on the floor outside the resident’s flat, put up offensive written notices and shouted at the resident, representative and the police.
On 20 April 2020, the landlord responded to the MP. It advised that the police would be interviewing the neighbour about incidents over the weekend of 5-6 April 2022 and other reports of harassment. It stated that if the neighbour was charged and convicted, it would take action to recover the property. The landlord also stated that it was not aware of the neighbour shouting abuse from behind his door, only that he left notes on the communal landing; however, the police would be raising this issue. The landlord confirmed to the representative on 24 April 2020 that it was liaising with the police and would start possession proceedings if the neighbour was charged. It added that it could explore the possibility of an injunction in the interim although this could take several weeks. However, there is no evidence that the landlord maintained contact with the police at this time.
The landlord has provided limited information on the case. As such, there is also no evidence of it taking any further action on the resident’s ASB case, such as maintaining contact with the resident and responding to reports and counter-allegations. Its correspondence shows that on 21 May 2021 it attended a multi-agency review meeting set up by the community Mental Health Team. Its internal notes indicate that whilst the resident’s ASB case was not specifically considered, all the professionals in attendance considered that a move for the resident to sheltered accommodation would be a “fresh start” and beneficial.
On 1 June 2021 the resident completed a complaint form stating that he had been reporting harassment and name calling for nine years but the landlord had not helped him. He noted that he had mental health and disability issues which had been adversely affected.
On 2 June 2021 the landlord wrote to the MP. It noted that all professionals at the meeting of 21 May 2021 took the view that the best way to support the resident was to offer a move under delegated authority to sheltered accommodation. However, the resident and his representative had refused. The allegations were not sufficient to allow for action against the neighbour’s tenancy as the information gathered supported the fact that this was not a one-sided situation where the resident was the only victim. It concluded that it had taken reasonable steps to manage the various reported incidents and urged the resident to reconsider his rejection of a transfer.
On 15 June 2021 the landlord sent the Stage 1 response to the complaint. It stated that:
1. At the meeting of 21 May 2021, a decision was reached that a move offered under delegated authority to a sheltered accommodation site within the borough would be the best outcome. However, the resident had refused as he did not want the neighbour to win. It still believed that a transfer would best meet the resident’s physical and mental needs.
2. The allegations made were not sufficient to allow tenancy action and there were also reports where the resident was the alleged perpetrator.
3. With regards to a request from the resident to install a Ring-type doorbell, it was unable to install or give permission for such devices which would record audio and visual images in communal areas as this would be a breach of legislation.
On 23 June 2021, having been contacted by the resident, this Service relayed to the landlord that he was unhappy with the Stage 1 response as:
1. the landlord had not acknowledged that his neighbours and their visitors had been cautioned by the police concerning their conduct towards him and did not consider this as evidence of the ASB he had reported.
2. the landlord did not give him permission to install a door bell with recording facilities which he could have used to record evidence of the ASB he had been experiencing, if it had permitted him.
3. he was unhappy with the landlord’s investigation of and response concerning counter allegations made by the neighbours against him.
4. he disagreed with the landlord’s suggestion that his mental health condition had caused him to perceive the behaviour he complained about as being antisocial, and its recommendation that he should consider moving to sheltered or supported accommodation.
On 23 June 2021 the landlord advised this Service that it would talk to the resident to ascertain why he wanted the complaint escalated. A letter from the representative dated 9 July 2021 indicates that the landlord had spoken to the representative the previous week. However, there is no record of such a conversation.
In the letter of 9 July 2021, the representative provided the background to the case noting that problems had started eight years ago when the neighbour’s attitude towards the resident had changed and he had started banging on his door. At this time a camera was installed. The representative highlighted an incident in April 2020 when the police came to arrest the resident for banging on his neighbour’s door but when he asked the police to check the tape it was confirmed that the resident did not carry out the actions he was alleged to. He advised that whilst the landlord had proposed that the resident move, due to his condition he did not see why he had to when he considered the neighbour was in the wrong. The representative also noted that the resident became frustrated when he thought that people were not listening to him due to his condition.
The landlord’s internal correspondence when investigating the Stage 2 complaint noted that the representative had advised there had been 200 calls to the police about the neighbour but that they generally directed their reports to the police. Due to the lack of evidence, it had not served warnings on the parties or issued an Acceptable Behaviour Contract or Good Neighbourhood Agreements. It noted that the situation had “gone past mediation” and each party did not want to be transferred but wanted to the other party evicted.
On 3 August 2021, the landlord responded to the resident’s request to escalate the complaint to Stage 2. It stated:
1. The resident had rejected an offer of alternative accommodation as he believed that there was enough evidence for the landlord to take action against the neighbour.
2. Whilst it accepted that there had been name calling, bullying and an incident of graffiti on the resident’s front door, there had been counter-allegations and an equal number of calls to the police about the resident’s conduct. The police had cautioned both parties and warned them to stay away from each other. As the vast majority of incidents over the last two years were not witnessed, there was insufficient evidence to start formal proceedings against the neighbour.
3. It had asked the resident to complete diary sheets more than a year ago but they have not been returned. Mediation was refused as neither party believed it would work. If further incidents were witnessed or if other residents complained, options it could take “could range from issuing a notice of seeking possession, to a community protection warning, or introducing an Acceptable Behaviour Contract or Good Neighbour Agreement”.
4. After the Community Mental Health Team convened a meeting in May 2021, staff felt a move to supported (sheltered) accommodation would provide a solution to more than one problem. No incidents were considered nor was blame apportioned therefore it did not agree that this proposed solution penalised the resident.
5. Its letter of 15 June 2021 explained why it had declined the resident’s request to install CCTV.
6. In conclusion, the landlord found that it had assessed the risk and provided the resident with a remedy that prevented further problems arising. If the resident rejected the offer of accommodation and remained in his current home, it would expect him to keep a record of the date and time any further incidents occur and document the names of anyone that witnessed the incident. Case officers would examine the contents and decide what further action, if any, should be take and communicate the decision in writing. For this reason, it declined to escalate the complaint to Stage 2.
In correspondence sent on 15 and 17 August 2021, the representative advised that he had a diary of incidents from February 2020 to January 2021 although the resident had experienced few problems that year as the neighbour could go six months or longer without causing problems. He enclosed the diary as he had not been asked to provide it before. The representative reiterated that the neighbour always started incidents, CCTV installed in 2015 did not capture verbal abuse from the neighbour behind his door and that the resident did not wish to move.
On 28 September 2021 the resident advised that he wanted this Service to formally review the landlord’s complaint responses.

Assessment and findings

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.
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. Embedded within the procedure was the need for engagement and liaison with partner agencies, including the police. This Service must therefore consider whether the landlord followed its own procedure in response to the reported ASB.
It should also be noted that ASB cases are often the most challenging for a landlord as, in practice, options available or chosen by a landlord to resolve a case may not result in a resident’s preferred outcome, and it can become difficult to manage expectations. Therefore, 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.
In this case there were a number of incidents in March / April 2020 which prompted the resident and his representative to contact the landlord and his MP. The landlord in its responses at this time advised that it was relying on the outcome of the police investigations before deciding whether to take tenancy action against the neighbour. However, the landlord had a responsibility to investigate abusive behaviour, verbal and written – this was not something necessarily simply for the police or for the police alone as abuse is not necessarily a crime. The police operate to a criminal standard of proof and the threshold to take action is much higher than that in civil law or other non-legal processes, including landlord action and response to reports of ASB.
The landlord focused on taking formal action against the neighbour but as stated in the ASB Policy it uses a combination of preventative, diversionary, formal and informal actions to address ASB. As such it is entitled to approach the alleged perpetrator of ASB to put an allegation to them to enable them 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. However, there is no evidence that the landlord approached the resident’s neighbour in response to the reports of March / April 2020, or maintained contact with the resident.
Compounding the failure to contact the neighbour, there is no evidence that the landlord liaised with the police, or considered the possibility of obtaining an injunction or taking any other action outlined in its ASB Policy in any event. There is also no evidence that the landlord carried out a risk assessment taking into account the resident’s vulnerability or formulated an action plan at any point. Therefore, there is no evidence that it followed the ASB policy in order to resolve the resident’s ASB case after his reports of March / April 2020.
As noted, the landlord has failed to provide this Service with any records such as file notes; telephone conversations; meeting notes; or evidence of liaising with other agencies which would indicate that it was taking any steps to investigate the resident’s allegations up to the point of him making a formal complaint. This lack of records is concerning and a serious failing on the part of the landlord. Clear record keeping and management is a core function of a ASB service, not only so that a landlord can provide information to the Ombudsman when requested, but also because this assists the landlord in fulfilling its obligations. Accurate and complete records ensure that the landlord has a good understanding of the background and current details of the case, enable actions plans made to be formed, monitored and managed, and enable the landlord to provide accurate information to the parties involved. It is also noted that the landlord has not provided a record of the resident’s escalated complaint.
The landlord’s complaint responses indicate that the resident had reported incidents involving his neighbour after April 2020. For instance, the landlord made reference to providing the resident with diary sheets. However, given the lack of records it cannot be confirmed that the landlord responded to reports received in a way that was proportionate and consistent with its ASB Policy. Moreover, whilst the landlord in its complaint responses advised that it considered there was insufficient evidence to commence possession proceedings, there is no evidence that it sought to manage the resident’s expectations of the action it would take at the time.
The landlord in its complaint responses maintained that it took a neutral stance in response to the resident’s situation with his neighbour with the latter also making counter-allegations. It noted that there had been an equal number of calls. However, it has failed to provide evidence to this Service to justify how it reached this conclusion. What is evident from the correspondence provided to this Service is that the landlord’s neutral stance manifested in it taking a passive approach to the case.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of the resident’s complaint.

Reasons

36. The landlord failed to provide evidence that it had investigated the resident’s reports of ASB in accordance with its published policy and procedure. Moreover, there is no evidence that it sought to manage the resident’s expectations of the actions it would take. The landlord’s stated neutral stance manifested in it taking a passive approach to the case.

Orders and recommendations

Within the next four weeks, the landlord is ordered to:
1. Pay the resident £350 for the distress and inconvenience caused by the handling of his ASB case.
2. Contact the resident to obtain details of any recent incidents then formulate an action plan.
Within the next six weeks, the landlord is ordered to:
1. Review its record keeping on ASB cases to ensure that there is a full and accessible audit trail of a resident’s reports of ASB and the actions and decisions it has taken in response. The landlord should consider how best to collate the responses of different teams.