Sandwell Metropolitan Borough Council (202003469)

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REPORT

COMPLAINT 202003469

Sandwell Metropolitan Borough Council

9 February 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 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 response to the resident’s reports of antisocial behaviour (ASB).
  2. The landlord’s record keeping.

Background and summary of events

Background

  1. The resident is a tenant of the landlord and occupies a two-bedroomed house.
  2. The landlord’s tenancy agreement confirms that residents must not cause nuisance, annoyance or disturbance to other residents such as “slamming doors” and “playing loud music” and states that it will consider these to be ASB if they cause a nuisance to residents in the vicinity.
  3. The landlord’s ASB protocol states that, when a report of ASB is made, it should gather details about the ASB from the resident which should provide sufficient quality data to allow further investigation. After this an investigation plan should be prepared and agreed with the resident.

Summary of events

  1. The landlord’s ASB records were not provided by the landlord as requested. Instead, this investigation has relied upon information contained in emails and complaint records as evidence of the ASB action taken.
  2. It is not disputed that on 6 March 2020, the resident reported intimidating behaviour from his neighbour’s (the neighbour’s) visitor whilst outside his property. He provided video footage and described the visitor as standing on the resident’s driveway, smoking close to his car and engaging in conversation with a worker, during which time they used bad language in reference to him.
  3. On 9 March 2020, the resident sought intervention from his MP as he was dissatisfied with the landlord’s response to his reports of ASB. He described noise nuisance since 2019 and an incident of ASB in September 2019 where  the neighbour’s visitor had behaved “aggressively and threateningly towards him” which he had reported to the police. The resident also alleged drug taking by the neighbour and said the smell had entered the property. He said the landlord’s approach was “biased” because, when he had provided evidence of ASB as requested, he was informed that this did not constitute ASB. He said he felt that was an unfair response.
  4. The landlord provided a response to the resident and his MP on 24 March 2020 in which it confirmed that it had investigated his reports of ASB. It noted that no further action was taken by the police in respect of the incident reported in September 2019 and it could find no evidence of tenancy breaches regarding his reports of loud noise or drug use. It added that reports about drug use should be made to the police.
  5. After an enquiry from the landlord on 6 April 2020 about the situation, the resident replied on 29 April 2020 to report that, in addition to the previously reported banging of doors throughout the day, there were regular instances of windows being slammed and loud music being played. He disputed a reference it had previously made about him refusing to use a noise app, contending that it had not offered this to him. The resident said he had been told that noise monitoring equipment could be installed only after three weeks’ worth of incident diaries had been submitted.
  6. The resident advised that he was unaware that no further action had been taken by the police in respect of the incident he reported in September 2019; he was only aware that they would be speaking to the neighbour. He recalled being advised by them to install video recording equipment at the door.
  7. The resident disputed an assertion previously made by the landlord that the smell of drugs he had reported originated from a nearby alleyway, which had been reported by other residents. He stated he had never been informed of this and expressed doubt that this smell could have originated there and be smelt as strongly as the cigarette smoke from the neighbour’s property. The resident was unhappy that he could not open his windows over concerns that the smoke would enter his property. He included a photograph of cigarette ash on his doorstep, stating that this was a regular occurrence and had not been investigated seriously by the landlord.
  8. The landlord emailed the resident on 1 May 2020 to clarify that no charges were brought against the neighbour’s visitor, who it understood would no longer be visiting. It confirmed that mediation was still available and assured him that it would work around his commitments. The landlord provided advice on how to use the noise app and encouraged the resident to use this, and this could be followed up with the installation of noise recording equipment if necessary. It apologised for suggesting that he had refused to use this.
  9. The landlord acknowledged the resident’s concerns about smoke entering his property but asserted that smoking tobacco was not illegal, and it was not possible to prove that the picture of cigarette ash was the neighbour’s. It clarified that it had been aware of a problem with drug smoking in the area, but this had ceased in January 2020 and it apologised for not making this clear earlier.
  10. After the resident approached his MP again, the landlord issued a response to both parties on 13 May 2020. In this it repeated its earlier sentiments, conveyed in its response on 24 March 2020, about the incident reported to police in September 2019, his reports of smell of drug use, the neighbour’s smoking, noise from the neighbour, and the availability of mediation.
  11. On 9 June 2020 the resident notified the landlord that the issue of noise and music persisted, acknowledging that he had “not pursued this issue fully” as the level of noise would decrease temporarily after he reported this to it. He stated that he had kept an incident diary of the noise and now requested that it arrange for the installation of noise recording equipment.
  12. The resident asserted that he was still experiencing cigarette smoke from the neighbour, which was entering his property and affecting his baby’s clothes. He attributed this to a lack of consideration by the neighbour. He reported now experiencing an unknown chemical entering his garden from under the dividing fence between his and the neighbour’s gardens. He acknowledged that it was not illegal to clean your patio area but was concerned about the effect of the chemicals on his dog. The resident raised a question about his rights in removing items from his fence.
  13. The resident expressed doubt about the effectiveness of mediation but clarified that he had “never refused the offer of mediation” and stressed that he was not prepared to lose time from work or family for it. He asked the landlord to investigate the issues he had raised as he felt it was affecting his quality of life.
  14. The landlord responded to the resident on 10 June 2020 to answer his query about to manage objects which overhung his fence and advise that it would enquire with the neighbour about the cleaning products they used to wash their patio. It stated that this was unlikely to a be a dangerous substance and showed evidence of her maintaining her garden in accordance with tenancy conditions.
  15. The landlord repeated that mediation was still available but stated that there was little else it could do if tenancy conditions were not broken. It advised that would arrange for noise recording equipment to be installed once the corona virus lockdown restrictions were lifted. The landlord attached the stage one complaint response it had previously issued to the resident (not provided to this Service), advising that if he was dissatisfied, he could escalate his complaint to the final stage of the complaints process.
  16. The landlord issued a final stage complaint response to the resident on 26 June 2020 in which it noted that he had not used the noise app to record evidence of the noise issues he had reported. It encouraged him to use this whilst awaiting installation of noise recording equipment, as it could not confirm when it would be able to arrange this. The landlord confirmed that it had spoken to the neighbour about the patio washing and had found no evidence of a tenancy breach.
  17. The landlord acknowledged the resident’s concerns about cigarette smoke entering his property but reiterated that the neighbour was permitted to smoke in and around their property. It stated that, while it expected neighbours to be respectful to one another, they were entitled to smoke. The landlord reiterated that the photograph of cigarette ash provided by the resident did not evidence that this had been done by the neighbour.
  18. The landlord urged the resident to consider mediation to resolve the dispute with the neighbour which it stated it would be happy to organise once the corona virus restrictions lifted. It confirmed that it had found no evidence that it did not handle his reports of ASB incorrectly.

Assessment and findings

The landlord’s response to the resident’s reports of ASB

  1. It should be clarified that the role of the Ombudsman is not to determine whether ASB occurred. Rather, this Service seeks to determine whether the landlord responded reasonably and in accordance with its policies and procedures to the reports of ASB made by the resident.
  2. It is noted that there has been no evidence provided by the landlord of it interviewing the resident in response to his reports of ASB; nor of it agreeing an investigation plan with him, in accordance with its ASB protocol above at point 3. It is evident that use of the noise app to allow him to gather evidence to support his claim was discussed with him, but it is unclear when this occurred. This absence of evidence is discussed further below at point 27. 
  3. The available evidence suggests that the landlord responded reasonably by liaising with the police concerning the incident in September 2019 (which it fed back to the resident on 24 March 2020) and by meeting with the neighbour prior to 9 March 2020, to discuss the resident’s reports of noise. It is noted that it also encouraged the resident on 1 May 2020 to use the noise app to gather evidence of the noise reported, ahead of the possible installation of sound recording equipment, and confirmed in its final stage complaint of 26 June 2020 that it had spoken to the neighbour about the patio washing.
  4. As there was no clear evidence submitted by the resident of tenancy breaches, on balance, the landlord’s promotion of mediation was a proportionate and reasonable response from it to resolve his reports of ASB. In line with its ASB protocol at point 3, “quality data” must be evident for it to carry out tenancy enforcement activity. Therefore, the landlord took proportionate and reasonable actions in response to the resident’s reports of ASB. There was no evidence of service failure in the landlord’s handling of the resident’s reports of ASB. 

The landlord’s record keeping

  1. As part of this investigation the landlord was asked to provide documents, correspondence, and any other evidence relevant to the resident’s complaint. Only limited information was received, which did not include items such as the stage one complaint the resident made; the landlord’s response to this, the resident’s subsequent request to escalate his complaint; or records of how it investigated his reports of ASB. The omission to provide this information was a service failure as it evidences poor record keeping by the landlord in that it was not able to provide the relevant information when asked.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in its response to the resident’s reports of ASB.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in respect of the landlord’s record keeping.

Reasons

  1. The landlord took reasonable and proportionate actions in response to the resident’s reports of ASB, based on the evidence provided.
  2. The landlord failed to provide sufficient evidence of how it investigated the resident’s reports of ASB and how it progressed his complaint.

Order

  1. The landlord should take the following action within four weeks of this report:
    1. Review and make any necessary changes to its record keeping procedures to ensure that an audit trail of documents is available to this Service when requested.

The landlord should contact this Service within 28 days to confirm it has complied with the above order.

Recommendations

It is recommended the landlord should:

  1. Extend its offer of arranging for noise recording equipment to be installed in the resident’s property to gather evidence of his reports of noise.