Southwark Council (201703942)

REPORT

COMPLAINT 201703942

Southwark Council

8 January 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 how the landlord:
1. Responded to reports of anti social behaviour (ASB)
2. Handled an emergency rehousing request

Background and summary of events

Background

The resident is a tenant of the landlord’s property. They moved to the property in 2011 by way of mutual exchange. The property is a one-bedroom apartment located on the ground floor of a three storey house, and the resident lives there with her young daughter. The alleged perpetrator resides in the property above which consists of the second and third floor of the house.
The alleged perpetrator moved to their property in March 2017. Soon after they arrived at the property, the resident began to raise concerns about noise transference. The resident had made reports about noise emanating from the property whilst the previous tenant resided there; and they say that the landlord had informed them that soundproofing and ‘vital repairs’ would be carried out once the previous tenant had vacated. However, the resident says that such steps were not taken and that as a result the disturbance they experience from noise transference has continued.

Landlord’s policies and procedures

The landlord’s ASB procedure defines anti social behaviour as follows:
1. ‘Acting in a manner that caused or was likely to cause harassment, alarm or distress.
2. Engaging in behaviour which causes or is likely to cause a nuisance or annoyance to a person residing in, visiting or otherwise engaging in lawful activity’.
With regards to investigating ASB, the procedure provides that once a report has been received from a resident, a case officer will visit or call the reporter to discuss the report and obtain further details. The timeframes for taking such action depends on the level of risk.
To tackle the ASB, the landlord may take a number of steps. These include:
1. Interviewing the alleged perpetrator to address behaviour.
2. Sending warning letters to advise of concerns.
3. Drawing up an acceptable behaviour or good neighbour contract.
4. Referring to mediation services.
5. Requesting professional witness services.
6. Referring to other agencies such as mental health, social care, or others as appropriate.
The procedure details instances in which mediation may be the most suitable method for tackling the ASB. These include where:
1. The landlord is unable to resolve an ongoing neighbour dispute through normal resident services intervention and management.
2. An existing neighbour dispute has suddenly escalated and required urgent attention and management of the situation by an experience third-party.
3. Landlord officers are not perceived as impartial by one or both of the parties in a dispute.

Housing allocations scheme

The scheme details that the local authority operates a banding scheme, and that the applicant’s circumstances are assessed and placed in a particular band. The scheme provides further details about each ‘band’ and the types of residents that will fall into each.
With regards to request transfers, the scheme provides:

“…there may be exceptional circumstances where the only way an urgent housing need can be resolved is through management discretion. This type of move will be kept to a minimum, and all such landlord request transfers will be authorized by the Head of Operations. Examples of these cases include, but are not limited to:

Threat to life.
Households who, on police advice, must be moved immediately due to serious threats to one or more members of the household, or whose continuing occupation would pose a threat to the community.
An applicant who has an exceptional need that is not predicted or covered within the Allocations Scheme.
Other circumstances as authorized by the Head of Operations.

…these cases will be placed into Band 1 and if all other housing options have been explored may result in a direct offer of accommodation”.

Summary of events

Between November 2017 and February 2019, the resident made eight calls to the landlord’s Noise Nuisance team as they had concerns about the frequency and level of noise emanating from the property above.
In addition to the noise levels, the resident has complained about other matters involving the alleged perpetrator. These include:
1. Concerns about smoking in and around the communal entrance to the property – where there is an exposed gas pipe.
2. The balcony belonging to the above property being littered with bird feed and cat feces. Debris falling from the balcony.
3. The alleged perpetrator pouring water from the balcony into the resident’s back garden.
4. Plant boxes being placed on the balcony, which the resident considered to be a health and safety breach.
The resident also complained about the condition of the property. In particular, they were concerned following the partial collapse of the kitchen ceiling – which they say occurred following an escape of water within the upstairs property.
The resident was concerned by what they considered to be a lack of action by the landlord’s residential services team and complained to the community trigger team in April 2018. The particular incident included the alleged perpetrator throwing candles and tea light candles into the resident’s garden, and pouring water from the balcony above.
During 2018, the resident had also been in discussion with the landlord about moving to a different property and a housing application which had initially been submitted in 2014. The landlord had advised that the application had been removed as it required a number of documents from the resident. It advised that once the requisite documents had been received, it could reinstate the resident’s application accordingly.
Towards the end of 2018, following the community trigger, the resident’s banding was reconsidered. The resident asked to be moved urgently as they were concerned about remaining at the property. The housing department concerned was unable to make a decision owing to “a lack of supporting information” and asked the resident services department if further information to support the application could be provided.
The resident services team made contact with the local police and it provided a risk assessment relating to the ASB issues the resident had reported in the past. This confirmed that none of the reports by the resident had led to any cautions or charges being issued. It was therefore concluded that there was a ‘standard risk’ to the resident remaining in the property. It followed that it was unable to agree to an emergency move. In a letter dated 2 March 2019, the department said that:
1. The local housing office would continue to engage with the resident and their neighbour to establish the “relevant actions to be put in place to resolve any outstanding issues”.
2. A move in relation to the condition of the property would be permitted with a report of a technical surveyor, recommending a move.
3. The resident’s file had been reviewed further and there were no other grounds that could be seen which would warrant the requirement for an urgent move. It confirmed that the resident’s case would remain as a priority band 3 – that being a household whom is residing in overcrowded circumstances.
At the end of March, the resident asked for the matter to be considered at stage two of the landlord’s complaints process. Further correspondence was exchanged and the resident submitted further concerns about the decision on 17 April. The resident’s concerns and request for an emergency transfer were considered as part of the landlord’s ‘review phase’. The landlord wrote to the resident with the outcome of the review on 22 May. In its letter, it said:
1. The decision regarding the priority banding had been communicated on 2 March. The resident had the right to request a review of that decision, and they were provided with the details for doing so. The relevant team did not request any review within the 21 day deadline; and so the resident no longer had the right to request that the banding decision be reviewed.
2. The resident had made ‘various reports of low level anti social behaviour’. The relevant teams had taken ‘a number of actions to deal with the reports’, but there had also been counter allegations made against the resident. The letter detailed the then most recent actions which had been taken- this included the offer of mediation with the alleged perpetrator, which the resident had declined.
3. Having reviewed the resident’s concerns, it was satisfied that the officer within the housing team had followed procedure and that the priority band three status was correct.
4. It was also satisfied that the residents services team was taking the appropriate actions in response to the resident’s reports of ASB. There was not sufficient evidence to warrant formal action against the alleged perpetrator for any breach of tenancy. If the resident changed their mind and wished to engage in mediation, the resident services team could arrange this.
5. The repairs issues had not been commented on as they were being dealt with by the legal disrepair team.
The resident remained unhappy with the decision and asked the Ombudsman to investigate the complaint.
In June 2020, the resident’s Member of Parliament sought an update from the landlord. On 1 July, the landlord responded and confirmed as follows:
1. Enquiries had been made with the disrepair team and the surveyor confirmed that the works which were required could be carried out with the resident in occupation, and a permanent move would not be required. It followed that the resident did not meet the criteria for a band 1 priority move.
2. The surveyor informed the resident services team that the resident had refused the works, and was therefore offered a temporary move so the works could be carried out. However, the offer was declined, as the resident wished to be moved permanently.
3. The resident was required to bid for suitable properties; however, the bidding system had been temporarily suspended due to the Covid-19 pandemic, and the government’s policy to support the homeless.
4. It had also been looking at other housing options – such as mutual exchange. However, due to the ‘limited scope’ of areas that the resident was willing to move to, this had not happened as yet.
5. The resident had been offered two potential properties; however, both were declined as they were not in the resident’s area of choice.

Assessment and findings

The role of the Housing Ombudsman is to assess whether the landlord has appropriately followed relevant policies and procedures when dealing with the resident’s reports and concerns. With regards to ASB complaints, it is not the role of the Ombudsman to investigate each report and determine whether events transpired as alleged by the resident. Rather, it is to assess whether the landlord followed its policy based on the contemporaneous evidence that was available.
Similarly, the Ombudsman cannot determine what priority banding should be applied to a resident or whether a resident should be moved as an emergency. The Ombudsman’s role when considering such complaints is to assess whether the landlord correctly applied its policy and procedure when reaching its decision.

ASB reports

From the evidence that has been provided to the Ombudsman, the landlord appropriately handled the resident’s ASB reports. Whilst it is acknowledged that the resident did not consider that the landlord was taking action, the evidence provided demonstrates that the landlord took steps to investigate the reports and assessed whether the reports could be corroborated. In addition, the landlord spoke with the alleged perpetrator regarding the incidents with the aim of obtaining their comments, but also to remind them of their obligations under the tenancy agreement – and what behaviour was not acceptable.
The actions taken by the landlord were proportionate and in line with its ASB procedure, as detailed above. The landlord had also received counter-allegations about the resident. It is acknowledged that the resident strongly refutes the counter-allegations; however, the landlord had a duty to investigate and consider these fully before deciding what action to take in the circumstances.
The landlord correctly proposed mediation as a means of resolving the dispute, and appropriately reminded the resident that this option remained open at a later date. It is acknowledged that the resident has been concerned by the level of noise transference; however, the evidence shows that it has not been considered to amount to statutory noise nuisance. As a result, the landlord does not have any grounds to take enforcement action against the alleged perpetrator.
It follows that the landlord’s actions to date have been in accordance with its procedure, and there is no evidence of service failure in relation to this complaint.

Emergency rehousing request

The reasons why the resident would like to be moved to an alternative property have been noted. However, the evidence that is available shows that the landlord took steps in line with its Allocations Scheme in terms of determining the banding that should apply. Further, following the community trigger, the landlord considered whether there were grounds for the resident’s banding to be changed and whether there were grounds for an emergency transfer to take place.
There is no evidence which shows that the landlord failed to consider the resident’s circumstances and the concerns that she had raised. In addition to reviewing the ASB history and actions which had been taken, the landlord also gave consideration to the repair issues that the resident had cited. Further, the landlord provided clear information on what steps the resident could take with a view to moving property – this included considering a mutual exchange.
A decision to move the resident on an emergency basis would be at the landlord’s discretion – taking into account the factors listed in the scheme. However, there is no evidence which shows that the landlord exercised its discretion unfairly or inappropriately. It follows that there was no failure by the landlord in declining to rehouse the resident on an emergency basis

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in how the landlord:
1. Responded to reports of anti social behaviour
2. Handled an emergency rehousing request

Reasons

The evidence available shows that the landlord dealt with the resident’s reports of ASB in line with its procedure. The landlord appropriately investigated the reports it received, spoke with the alleged perpetrator, issued warnings as necessary and proposed mediation as a means of resolving the dispute. The landlord’s actions were proportionate in the circumstances, and there is no evidence of service failure.
In response to the resident’s request to be transferred to a new property urgently, the landlord appropriately considered the their circumstances and whether there were grounds for an emergency transfer to be approved or recommended. The evidence demonstrates that the landlord applied its discretion appropriately when declining an emergency transfer, and provided the resident with information about what options were available to them.