London Borough of Newham (202105739)

A picture containing font, text, graphics, logo

Description automatically generated

REPORT

COMPLAINT 202105739

Newham Council

29 June 2023

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman, and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s handling of:
1. The resident’s reports of anti-social behaviour by a neighbour.
2. A previous court case concerning rent arrears.
3. The resident’s complaint.

Jurisdiction

What we can and cannot consider is called this Service’s jurisdiction. This is governed by the Housing Ombudsman Scheme (‘the Scheme’). When a complaint is brought to this Service, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
The resident raised issue to the Ombudsman about how the landlord handled a previous court case concerning rent arrears. The Ombudsman has not reviewed this matter because there is no evidence it was raised and considered through the landlord’s complaints procedure. In accordance with paragraph 42(a) of the Scheme, this falls outside of its remit. The resident may wish to raise this issue separately as a formal complaint; however, it is noted that the case appears to date several years ago.

Background and summary of events

Background

The resident lives in a one bedroom, ground floor flat owned by the landlord, a local authority. She has a sole secure tenancy that began in October 2012.
The landlord’s records note the resident has a vulnerability linked to her mobility. The resident’s correspondence also shows that the resident disclosed to the landlord that she was experiencing poor mental health.

Scope of investigation

The records provided by the landlord dating back to 2018 show reports made by the resident across 2018 to 2020, about the conduct of her neighbour in the above first floor flat. The main report was that of racial harassment and deliberate damage to her flat. The landlord gave a verbal warning to the resident’s neighbour concerning their alleged behaviour in June 2020.
This Service will not ordinarily investigate matters brought to its attention more than 12 months after the landlord’s complaints procedure has been exhausted. This investigation has focused on the period from November 2020. This marked a fresh report following some months without ongoing contact. While the landlord’s final complaint response was provided March 2022, the resident raised her complaint at the beginning of December 2021; the subsequent delay was that of the landlord. The landlord’s own complaint response included consideration of the period considered in this investigation. This period is deemed appropriate and fair in these circumstances.
The resident informed the Ombudsman that the landlord’s handling of her reports had a negative impact on her health and wellbeing. This Service is unable to look into and make a decision about the cause of, or liability for, any impact on health and wellbeing. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident.

Summary of events

At the beginning of November 2020, the resident contacted the landlord reporting that she continued to experience issues associated with her above neighbour:
1. Damage to the ceiling of her home believed caused by him.
2. Loud banging noises.
3. Racist comments described as persistent.
The resident told the landlord she felt the neighbour’s actions were hate related and described feeling scared to leave her home and impact to her wellbeing. The landlord subsequently advised the resident it would send a warning to her neighbour and encouraged the reporting of hate related incidents to the police.
On 18 November 2020, the landlord sent a letter to the resident’s above neighbour about their alleged conduct warning of potential breach of tenancy.
Further reports of loud banging from the above flat and damage to ceiling plaster, advised to be linked and deliberate, were made by the resident at the end of November and in December 2020. The resident provided photographs of the condition of the ceiling prior to the alleged damage. The neighbour contacted the landlord early December and denied the allegations. This Service has not had sight of a copy of this correspondence/ record of contact. The resident reported mid-December an improvement in noise but continuing to overhear racist comments and suffer further damage to her ceiling. She was advised by the landlord to report hate related incidents to the police and about the limitations of enforcement action due to the available evidence.
The resident continued to report her concerns to the landlord about comments overheard by the neighbour, loud banging and defects appearing upon her ceiling that she believed were connected. She described anxiety that the ceiling would come down and having lost sleep, adverse impact to her health and fear.
On 14 January 2021, the resident wrote a complaint to the landlord about its handling of the allegations raised about her neighbour. The landlord replied, stating it was ‘unable’ to deal with her complaint as it concerned ‘neighbour disputes’ and was ‘a private civil matter’.
In February 2021, the resident reported further to the landlord that she had experienced loud banging from the above flat aimed at harassing her and causing damage. The resident also forwarded an email received from the police about reports she had made of the neighbour’s alleged covid lockdown breaches. In their email, the police advised it would complete a ‘safeguarding report’ for the resident and include a ‘strong’ suggestion that the landlord provide greater support.
The landlord put the allegations to the above neighbour. The neighbour denied deliberate or unreasonable levels of noise and advised any noise was due to their washing machine. The landlord updated the resident it was unable to consider enforcement action against non-persistent, low level domestic noise and would be closing her case. It wrote to the resident by letter of 17 February 2021 confirming closure and provided advice on further private action she could consider taking.
The resident contacted the landlord early June 2021 by phone and over emails seeking contact. There is no record of a reply given.
At the beginning of July 2021, the resident reported to the landlord that her neighbour had a listening device affecting her own communication equipment and provided a crime report reference. She also highlighted further damage to her ceiling. Her suspicion that a heavy object was being used in the flat above to cause damage to her home was raised further in mid-July, with report of shaking vibrations. The landlord’s internal notes recorded a case review at the end of July with reference to the previous closure and a manager decision to close this case.
The resident made further report at the end of August 2021 raising concern about loud banging and other noises from the above flat. On 2 September 2021, the landlord wrote to her neighbour advising it had received reports of noise, described as ‘consistent with that caused by poor sound insulation’. It requested noise be kept to a reasonable level to avoid nuisance and gave advice about minimising disruption. It wrote to the resident the same date advising it considered her report to relate to ‘normal domestic noise’, ‘indicative of poor sound insulation’ for which it was unable to take enforcement action. It advised it did not investigate complaints of this type.
At the end of September, the resident raised further concerns to the landlord about her neighbour’s conduct. She reported further loud noises and having overheard her neighbour’s partner making hate related comments linked to race and disability. The landlord contacted the resident at the beginning of October 2021, took further details and advised it would conduct a further investigation then report back its findings. The case was assigned the landlord’s priority one level.
On 11 October 2021, the resident contacted the landlord seeking update. The landlord advised it had not yet spoken with her neighbour. The landlord put the allegations to the neighbour the following day, who denied these in full. The landlord advised the neighbour it would monitor the situation and further reports could lead to enforcement action. The resident was updated of this contact the same day and assured the landlord would continue to monitor her case.
On 7 December 2021, the resident submitted a complaint to the landlord about its handling of her reports about the conduct of her neighbour. She raised that:
1. There was a significant history of harassment and racially motivated comments and damage to the ceilings caused by the neighbour.
2. The conduct reported had a negative impact to her physical and mental health, described as ‘mental torture’, anxiety and stress. She described living in fear and installing expensive cameras for her security.
3. The landlord failed to effectively or appropriately intervene despite her reports.
4. The landlord’s communication was poor, and some emails received no reply, leading to her feeling ignored.
5. The landlord did not conduct a property investigation including by failing to inspect her ceiling or conduct recordings of the noise reported.
The complaint was acknowledged by the landlord on 4 January 2022. It promised a reply by 21 January 2022. On this date, the landlord sent a further email to the resident advising of a new timescale for reply by 4 February 2022.
On 31 January 2022, the resident emailed the landlord. She requested that her complaint be escalated to stage 2 of the complaints process due to the landlord’s delay reviewing her concerns. She also raised complaint that the landlord has given no explanation of the reason(s) for an extension of time.
On 16 February 2022, the landlord wrote to the resident and acknowledged her stage 2 request. It advised of delay completing its response that it advised was due by 24 February 2022. The landlord’s internal communications of the same date show its complaints service considered being unable to provide a reply as it was awaiting further information from internal department/s.
The landlord closed the resident’s anti-social behaviour case on 16 February 2022, having noted on its records that the case was ‘resolved through intervention’. This followed case reviews conducted end of January and mid-February that found no further reports had been received.
On 24 March 2022, the landlord provided its ‘stage 2’ complaint response. In this letter, the landlord stated that:
1. It was sorry for the delay providing response.
2. It did not uphold the resident’s complaint. It explained due to lack of evidence, it could not justify further enforcement and believed it had made reasonable and fair attempts to investigate her reports.
3. Concerning the allegations of racial abuse, this was a matter for the police. When it presented the allegations to the neighbour, these were denied. It had no other evidence to rely on and was aware the police took no further action.
4. The noise allegations were addressed with her neighbour. These were denied and the noise deemed non-deliberate and not anti-social behaviour as domestic noise. It gave appropriate advice at the time.
The resident subsequently raised complaint to the Ombudsman about the landlord’s handling of her reports and her complaint.

Assessment and findings

The Ombudsman’s Dispute Resolution Principles are:
1. Be fair.
2. Put things right.
3. Learn from outcomes.

This Service will apply these principles when considering whether any redress is appropriate and proportionate for any maladministration or service failure identified.

The landlord’s obligations

The landlord’s (then) anti-social behaviour and nuisance policy recognised that conduct falling under its remit included noise nuisance, abusive language, and noise from ‘other equipment’. It emphasised the importance of considering the impact upon the complainant.
The policy gave a 5 working day service timescale for making initial contact in response to a report of anti-social behaviour or harassment, shortened to 24 hours in ‘serious’ cases that included hate related incidents. It detailed a further service commitment to keep the complainant informed of progress. It advised should it decide to close a case, it would write to the complainant to confirm and explain.
The policy also set out tools available to support its investigations, including noise monitoring machines. The landlord highlighted its commitment to using the community trigger in line with requirements of the Anti-Social Behaviour, Crime and Policing Act 2014. This allows complainants to request a multi-agency review of the action taken in response to reports of anti-social behaviour.
The landlord has a hate crime strategy noting the importance of recording all hate related incidents that do not constitute a criminal offence but cause alarm, distress, or harassment to enable appropriate victim support. The strategy stated that the landlord was to ensure a consistent frontline practice for responding to hateful beliefs and attitudes and detailed appropriate organisations available to support victims.
The statutory guidance accompanying the Anti-social Behaviour, Crime and Policing Act 2014 required the landlord to have a clear focus on the impact of reported behaviour and expected good practice of risk of harm assessments to include regard to potential vulnerabilities.
The landlord was also required to have regard to a complainant’s disability in line with its obligations under the Equality Act 2010. Where on notice, it must consider when making decisions and providing a service whether its decision making/ actions could place the person at a particular disadvantage due to their vulnerabilities. The landlord is also required to make appropriate reasonable adjustments.
In accordance with its complaints policy, the landlord’s response to a complaint at stage one was required within 10 working days and the stage two response in 20 working days. The Ombudsman’s Complaint Handling Code (‘the Code’) states that escalation to stage 2 should occur only once the complaint has been considered at stage one.
The Code at paragraph 5.6 requires that a landlord keep complainants regularly updated about the progress of their complaint.
Where a response is delayed at stage one, in line with the Code, the landlord is expected not to exceed a further 10 days without ‘good reason’ and to seek to agree delay with the resident. Where there is no agreement, the landlord is required to provide the Ombudsman’s details so the resident may consider recourse.
The landlord has compensation policy guidance to support its decisions to offer compensation and if so, how much, when reviewing a complaint.

The landlord’s handling of the resident’s reports of anti-social behaviour by a neighbour

This Service is not able to make findings of fact as to the incidents reported by the resident as hate-related, harassment and noise nuisance. It is not the role of the Ombudsman to decide whether anti-social behaviour/ harassment occurred or who is responsible. This Service will consider the landlord’s response to the resident’s concerns. This includes whether the landlord appropriately and fairly investigated her complaint based on available information, followed proper procedure, and took reasonable steps to respond in a way that was fair in all the circumstances.
The resident repeatedly reported to the landlord that she had been the victim of hate-related incidents. While the landlord’s anti-social behaviour policy and hate crime strategy underlined the importance of taking account of the experience reported by an alleged victim, there is little evidence the landlord’s response to the resident had this appropriate emphasis.
The landlord is noted to have appropriately weighed up available evidence and communicated its considerations and limitations to the resident accordingly with proportionate action taken in the latter part of 2020. However, the resident continued to report to the landlord that she was a victim of hate related incidents and complained mid-January 2021 about the landlord’s handling of her reports. The landlord refused to consider her correspondence, characterising it as concerning ‘neighbour disputes’. This labelling of the resident’s experience, expressed clearly by her to have been considered hate-related, was inappropriate and contrary to the sensitive handling envisaged by its hate crime strategy. The landlord failed to recognise the resident had identified herself as a victim of racial hatred. Such failure was particularly unreasonable whereby it had in recent months given a written warning to the alleged perpetrator on this same matter.
The landlord repeatedly referred to the resident’s reports of hate related incidents as a ‘police matter’ and on occasion simply pointed the resident in the direction of the police in alternative to their own investigation and handling. This was contrary to its own policy that appropriately recognised harassment as a form of anti-social behaviour for which it had appropriate tools to tackle. An appropriate and consistent frontline practice response to hate related incidents envisaged by its hate crime strategy was not demonstrated in this case.
There is scant evidence the landlord identified the additional care and sensitivity required to be taken when handling allegations of hate related incidents across the period of investigation. There is no record that the landlord completed a risk assessment. This is contrary to statutory guidance and best practice to ensure a victim-centred handling of anti-social behaviour allegations. The landlord’s lack of appropriate risk assessment(s) in this case was likely to have contributed to its failures of sensitive handling. Appropriate ongoing risk assessments would have provided the landlord the opportunity to assess the potential for increased harm arising from the very nature of the allegations. It would further have allowed for specific consideration as to the specialist support that may have been appropriate, for example the race hate organisations cited on its hate crime web page. The landlord also failed to consistently allocate the appropriate level of priority with the resulting service response timescales required by its anti-social behaviour policy, as apparent by its turnaround times to the resident’s reports.
While the landlord’s complaint response did explain its balanced approach and how it weighed up evidence obtained, it failed to recognise or address the above identified failings and further compounded these with one of its advised positions. The landlord suggested it could not take action in response to what it described as alleged ‘racial slurs’ because the comments had not been made directly to the resident but overheard. This expressed stance was contrary to its anti-social behaviour policy, statutory guidance, and commitment to tackle race hate. Racist terms made in a public place can patently amount to anti-social behaviour as conduct capable of causing alarm or distress. This incorrect advice as to its remit and ability to tackle hateful words created an impression that it was dismissive of the potential harm that could arise from racist terms.
Given the repeat nature of the resident’s reports and the landlord’s previous warnings to the neighbour, it is reasonable to anticipate that the landlord’s investigations into further allegations would be as complete as possible and used appropriate relevant tools. The landlord gave significant weight to the denial of the neighbour and the police finding early 2021. It was fair and appropriate that these were relevant factors to determining its direction. However, there is no evidence the landlord considered other investigatory options. For example, noise machine, seeking footage captured on the ring doorbell, investigation of the ceiling damage or whether there actually was a concern arising from poor sound insulation.
Given the nature of the resident’s reports that were disputed and ongoing for over a year, there is insufficient evidence showing why the landlord failed to review in particular the option of a noise machine. The resident is noted to have asked the landlord what else could be done to accurately capture the noise she reported experiencing. This would have enabled an impartial tool to support relevant conclusions. Its own anti-social behaviour policy recognised that nuisance could arise from noise caused by ‘other equipment’. By failing to explore the extent of the noise experienced further, the landlord failed to act in line with its policy as well as take proper account of the cumulative impact reported by the resident.
While the landlord provided advice about the resident’s ability to take private action and by its letters of February 2021 and complaint response, explained why enforcement action was not considered appropriate, it failed to make her aware of the community trigger process. This is despite the resident’s repeat expressions of dissatisfaction over a prolonged period.
There is some evidence of the landlord having responded in a timely manner to the resident and providing her with updates concerning the steps it had taken to liaise with her neighbour, However, its communications during the course of her reports was not consistently in line with its anti-social behaviour policy and statutory guidance in that it:
1. On multiple occasions failed to respond to her reports within its service level timescales. On occasion e.g., the resident’s emails of 25 June and 29 July 2021, elicited no reply at all, leading to her chasing the landlord.
2. Failed to advise the resident it had closed her case at the end of July 2021 or in February 2022.
Further, outside of best practice and displaying an unsympathetic manner, the landlord’s tone of communications was not consistently sensitive to the experience of the resident e.g., dismissing the noise reported as ‘domestic noise’ and as considered above, her reports as ‘neighbourhood disputes’.
There is no evidence that the landlord had regard to the resident’s vulnerabilities of which it was clearly on notice when handling her reports. This Service noted the resident notified the landlord of adverse impact to her wellbeing arising from the alleged anti-social behaviour from the very start of the period subject of investigation. As she continued to report alleged harassment, she informed landlord she was experiencing anxiety and loss of sleep. In February 2021, the landlord received an email from police stating it would be making a ‘safeguarding report’ with ‘strong’ suggestion that the landlord provide the resident greater support.
Despite the very obvious indicators given to the landlord that the resident was a lady living with vulnerabilities and potential unmet support needs, there is no record it sought to engage with this issue or considered this of relevance to its handling. The resident’s vulnerabilities were relevant factors to inform the nature, tone, and communication of the landlord’s handling.
There is no evidence the landlord enquired into how the resident was coping in a sympathetic manner, asked whether she considered herself to have vulnerabilities or offered any form of support referrals or signposting to relevant services. It failed to consider whether it could have communicated with the resident in a way that took account of any additional support needs she may have had.
This was a failure by the landlord to have regard to its duties under the Equality Act 2010. It was required to give consideration as to whether the resident had a disability as defined by law and consider whether it was required to make any reasonable adjustments taking these into account.
The landlord failed to identify these failings when reviewing the case at complaint stage. This is despite the resident further expressing in her complaint that she experienced impact to her mental health described as ‘anxiety’ ‘stress’ and ‘mental torture’. The landlord’s complaint response only acknowledged her described impact and stated it was unable to comment. This represented a further missed opportunity for the landlord to have appropriately handle the resident’s expressions of potential vulnerability and take appropriate action.
The accumulation of failings noted above represent severe maladministration for which the landlord is responsible.
It is appropriate financial compensation is made to the resident in redress for the distress and inconvenience caused by the landlord’s failings. The resident was placed at detriment, having received a service that failed to have regard or sensitivity to her expressed vulnerabilities or perceived experience as a victim of hate incidents. She was left on occasions chasing a response to contact that went unanswered and not kept appropriately updated that the landlord deemed it appropriate to close her cases. The landlord’s complaint response failed to identify these failings, and the resident’s significant distress at the landlord’s handling of her reports was evident in her subsequent complaint to the Ombudsman.
This Service notes that the landlord’s compensation scheme provided a recommended range from £50 to £500 to recognise failure(s) causing distress. This is insufficient redress to recognise the level of maladministration. The Ombudsman’s remedies guidance recommends financial compensation between £600 to £1,000 where the circumstances for severe maladministration apply but the redress needed to put things right is at the lower end of that scale. This Service orders compensation to recognise the number of failings identified that accumulated over a year and caused distress to a vulnerable resident.

The landlord’s complaint handling

The landlord escalated the resident’s complaint to stage 2, without completing its stage 1 investigation or providing a stage 1 response in accordance with its complaints process. While it is noted this was at the request of the resident, it was reasonably apparent this request was borne of frustration from delay awaiting response. The Code is clear that where delay to a response is not agreed, the appropriate advice to the resident is referral to the Ombudsman. The Code prohibits escalation to stage 2 until after review of a complaint at stage one.
The landlord’s failure to review the resident’s complaint at stage 1 and provide a response left the resident without a fuller review of her concerns by 2 separate officers of the landlord. This prevented an additional opportunity for the landlord to have identified, addressed, and learned from the failings identified above. This was also a failure to comply with its own complaints policy and the Code.
The landlord’s response was subject to unreasonable delay, significantly outside of the timescales required by its complaints policy. The resident made her complaint on 7 December 2021. No response was provided until the landlord’s stage 2 response of 24 March 2022, over 70 working days later. While the landlord did advise of extensions of time, it failed to give any good reason, or any reason at all to the resident for the delay. It is noted that the landlord provided an apology for delay in its complaint response. However, it again offered no explanation to the resident. Such transparency would have been of assistance in seeking to put the acknowledged delay right. This apology without any form of redress failed to appreciate that this not insignificant delay was likely to have caused a vulnerable resident distress and inconvenience. It failed to remedy its unreasonable delay.
There is no evidence that the landlord engaged with the resident as part of an impartial investigation. Its investigation took place over 3.5 months, however its only communications with the resident were to notify her of ongoing delays. This represented a failure by the landlord to comply with its policy and the Code requirement to keep the resident appropriately updated.
The landlord was responsible for maladministration in its handling of the resident’s complaint. Its unreasonable delay and failure to review the complaint over 2 stages in line with its policy and the Code adversely impacted the resident. While it apologised for delay, it failed to act transparently or recognise detriment to the resident caused by its other complaint handling failings.
Its apology did not redress the time and trouble, or distress and inconvenience caused to the resident who was left waiting for a complaint response for over 3 months. There is evidence the resident was put to particular time and trouble chasing the landlord to progress a response. The landlord’s failure to review the complaint over 2 stages resulted in the resident’s complaint being subject to less scrutiny and review that may otherwise have avoided the need for external referral. These failings are considered in the context of its awareness of the resident’s expressed vulnerabilities. The landlord is ordered to pay compensation to the resident to recognise this detriment.

Determination (decision)

In accordance with paragraph 42 of the Housing Ombudsman Scheme, the resident’s complaint about the landlord’s handling of a previous court case concerning rent arrears is considered outside of the Ombudsman’s jurisdiction.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was severe maladministration in the landlord’s handling of the resident’s reports of anti-social behaviour by a neighbour.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s complaint handling.

Reasons

The landlord failed to take a victim centred approach to the resident’s reports of anti-social behaviour in line with statutory guidance and its own hate crime priorities. It failed to consider the relevance of further available tools to aid its investigation into the resident’s reports in circumstances where her reports had been ongoing for a prolonged period. The handling of its position to the resident was at times insensitive and dismissive. It acted contrary to its own anti-social behaviour policy, hate crime strategy and statutory guidance by its failure to complete risk assessments, provide timely responses to the resident or keep her updated about the closure of her case(s). There is no evidence the landlord had regard to the resident’s expressed vulnerabilities and accordingly failed to assess or offer appropriate support.
The landlord’s complaint response was subject to delay that was outside of its policy timescale and unreasonable. During the course of its investigation, it failed to keep the resident appropriately updated. It inappropriately escalated the resident’s complaint to stage 2 of its complaint process without completing a review or response at stage 1, contrary to its policy and the Code.

Orders and recommendations

Orders

Within 4 weeks of the date of this decision, the landlord is ordered to:
1. Arrange for a senior member of the landlord’s staff to apologise to the resident for the failings identified in this report.
2. Pay the resident £1,100 compensation comprised of:
  1. £800 to reflect the distress and inconvenience caused to the resident by the failings identified in the landlord’s handling of her reports of anti-social behaviour.
  2. £300 to address its failings in complaint handling that caused the resident time and trouble and inconvenience.
3. Carry out a review of the handling of the resident’s reports and her complaint to determine what action the landlord should take to prevent a reoccurrence of the failings identified. The review should include assessment of:
  1. Whether it has appropriate policies/ procedures that cover:

(1) A victim-centred approach to handling reports of anti-social behaviour, including an approach to risk assessments.

(2) Frontline handling of reports of hate related incidents.

(3) Responding to customer vulnerabilities.

Its complaint handling in this case against the Code and share any learning with relevant staff across the organisation.

Recommendations

It is recommended that the landlord:
1. Consider whether it can action some of the recommendations in this Service’s noise Spotlight report.
2. Review its current training offer on its obligations under the Equality Act 2010 and how this impacts day to day communications with residents, decision- making and service provision.