Thurrock Council (202202533)

REPORT

COMPLAINT 202202533

Thurrock Council

21 December 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:
1. The landlord’s handling of the resident’s reports of anti-social behaviour (ASB) against his neighbour.
2. The landlord’s handling of counter-allegations of ASB against the resident made by the neighbour.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
The Housing Ombudsman cannot investigate complaints that fall within the jurisdiction of another Ombudsman. Part of the resident’s complaint related to how his reports of ASB perpetrated by the neighbour were handled. The landlord is a local authority and this part of the complaint had been dealt with by the local authority’s ASB team, which is not involved in its provision or management of social housing.
This matter therefore falls within the jurisdiction of the Local Government and Social Care Ombudsman who has already decided on this case. As a result, after careful consideration of all the facts, in accordance with paragraph 42j of the Scheme, the landlord’s handling of the resident’s reports of ASB by his neighbour, will not form part of this investigation. Any reference made to it in the report will be to provide context only.

Background

The resident had held a secure tenancy with the landlord, on a 3-bedroom semi-detached house, which he had lived in with his family for 24 years, at the time of the complaint. During that time, he says that he had not previously had cause to report ASB or had ever been accused of it.
The house next-door is owner occupied. At the time of the complaint, the current owners had moved in about 7 years before. Since moving there, they had undertaken extensive building work, including demolishing a garage and building a bungalow within the grounds of the property they own.
In March 2020, the resident told the landlord, that the neighbours had started renovation work on their house, which involved removing all the upstairs walls, resulting in constant loud noise taking place 7 days per week. The resident said this impacted his mental health, and he felt he had no choice, but to report his neighbours to the council. In response the council wrote to the neighbours to remind them of permitted working hours. The resident’s relationship with his neighbour had since deteriorated.
In addition to the constant building work taking place, the resident complained to his landlord and the councils ASB team, that his neighbours had been deliberately antagonistic, with inconsiderate parking and placing a skip so the resident could not park. On occasion, the resident had contacted the police because of the noise and the neighbour filming and recording the resident and his family. The landlord had explained to the resident there was no designated parking, but it would monitor the issue of the skip.
The case was being managed at this time by the council’s Anti-Social Behaviour (ASB) Team. In January 2021, the ASB team recommended the mediation service to both parties as a resolution. On 13 January 2021, the external Mediation Service emailed the ASB team to advise that calls were made to both parties to arrange, but the resident had said he was considering legal action against his neighbour and did not wish to go ahead with mediation at this point.
Following completion of the landlords internal complaints process, the resident approached the Local Government and Social Care Ombudsman (LGSCO). Its finding was that there was no general fault in how the Council investigated the complaints of ASB both by, and against, the complainant. The LGSCO said that it could not however investigate the elements of the resident’s complaint relating to the Council’s role as his landlord as this was outside of its jurisdiction.

Summary of events

In March 2021, mediation was recommended again by the landlord. On 23 March 2021, an internal update email from housing management was sent to the Councils ASB team. The email explained that before mediation could begin, the neighbour had requested an interpreter, and chose another of the landlord’s residents for that role. It said the resident had flatly refused this, because he said the representative was a very influential forum leader “who knew a lot of people in high places”, hence he did not feel that the mediation sessions would be fair and balanced. The mediators offered to provide a Police staff interpreter, as an independent 3rd party which the resident was happy with, but the neighbour only wanted the chosen representative. Mediation did not proceed.
The email also went on to say that, since the conclusion of mediation, both parties had traded accusations about each illegally videorecording / photographing the other; the Police had been involved but there was insufficient evidence for them to act against either party. It said both parties had complained about the ASB team not supporting them enough by acting against the other party. It had been explained that in the absence of evidence, mediation was still the best option. Mediators were willing to re-open the case file if both parties were willing to engage constructively. The landlord had also advised both parties that S82 of EPA 1990 provided for victims of ASB to seek their own private civil action where the Local Authority have insufficient evidence against both parties, and where mediation has failed.
On the same day, the ASB Officer advised the resident that it had received a complaint from his neighbour, alleging the resident had used aggressive and intimidating behaviour in relation to parking issues.
On 26 March 2021, the landlord sent a warning letter to the resident, in relation to the ASB incidents reportedly caused by him. In the landlord’s opinion, the incidents represented a breach of the resident’s tenancy agreement. It said the situation was being closely monitored and, whilst investigations were on-going, the landlord had decided to warn him about the reported conduct of his tenancy. Further tenancy enforcement action could be taken if there was evidence that the nuisance continued which may put his tenancy at risk.
The resident contacted the landlord on 29 March 2021 to report he was very upset about the warning letter. The next day, he requested he be allocated a new ASB Officer, but also stated he wished to progress with mediation.
On 2 April 2021, the neighbour made allegations to the landlord that the resident had called him some very derogatory names.
On 6 April 2021, the resident sent an email to the landlord again complaining about ongoing parking issues and reports he had made to the police, he supplied video footage with his complaint.
On 14 April 2021, the ASB Officer and ASB Team Leader met to review video evidence submitted by the resident about his neighbour. The Team Leader later contacted the resident by telephone to explain he had viewed the evidence, and that it did not bear out his allegations against his neighbour. In fact, it showed the resident spraying his neighbour with water from his garden hose.
On 15 April 2021, the landlord served a Notice of Demotion on the resident.
The resident employed the services of a solicitor who wrote on his behalf to the landlord to challenge the landlords serving of the notice of demotion.
On 14 May 2021, the landlord said its ASB Team Leader sent a letter to the resident, explaining that the demotion notice was withdrawn, and an Acceptable Behaviour Agreement was to be drawn up as an alternative.
On 20 May 2021, the landlord sent a letter to all residents affected, regarding the use of housing land to the rear of the resident’s property. It reminded all residents that this was not a car park, it was an access road for the shops and houses. The parking of vehicles and placing of skips on this land would not be tolerated. The same day, the resident made a formal complaint.
On 21 May 2021, the landlord said it discussed the letter regarding the housing land with the resident. As the resident had parked in this place for 24 years, he felt he was being targeted by the landlord. The landlord said parking was becoming a problem in the area, which had compelled them to be vigilant with parking restrictions, and all residents had been given the warning letter, not just the resident.
On 24 May 2021, the landlord prepared an Acceptable Behaviour Agreement (ABA), as an alternative to the withdrawn Notice of Demotion. The same day a new ASB Officer visited the resident, with the ABA. The resident asked to record him but the officer did not give permission. The resident complained about the ABA and the warning letter, he explained the neighbour had been taking photos of his house, car, and his family. He was unhappy that he had been served with a notice and why another neighbour was involved in the mediation process. The landlord said it answered all his questions, reminded him of his tenancy conditions and left on reasonable terms.
On 3 June 2021, the landlord completed its stage 1 investigation, and provided its response to the resident. In summary, it said:
1. It advised the officer concerned had served the resident’s notice of demotion incorrectly and apologised for this. It advised that the notice of demotion had been withdrawn and the officer concerned no longer worked for the landlord. His complaint was upheld.
2. It also said that it had evidence that proved the allegations made against him, and as a result the ABA had been issued which had been fully explained to him.
3. It had allocated him a new ASB officer, to provide fresh perspective on his case. If his behaviour stopped, no further action would be taken. However, if further incidents were proven it could escalate its action, as necessary.
On 17 June 2021, the resident requested escalation to stage 2 of the landlord’s complaint procedure as:
1. Whilst the landlord had made some admissions in its response, he noted that the notice of demolition was only withdrawn when he secured the services of a solicitor. As such, he was seeking full reimbursement of his legal fees for resolution of the matter, £750 + VAT.
2. The ABA had been served prior to the new ASB officer being allocated to him and she did not have a chance to review the case first to give a fresh perspective.
3. He felt there was a conflict of interest in the stage 1 response as the person investigating was integral in the decisions about the Notice of demotion and ABA.
4. The issues of ASB and how the landlord had dealt with them had had a significant impact on his mental health and as the landlord had admitted to failures, he felt he should be awarded compensation for the deterioration in his mental health.
On 20 June 2021, the ASB Officer received an email from the resident complaining that he was being targeted by the next-door neighbour and other residents and was unable to enjoy his weekends in his house. He reported to the landlord that he was being threatened by the husband of the neighbour’s chosen advocate, who drove past the resident’s house imitating firing a gun.
On 21 June 2021, the landlord spoke to the neighbours advocate about the video footage of her husband’s behaviour towards the resident, and advised that mediation would not go ahead with her involvement.
On 28 June 2021, the landlord wrote to the resident’s solicitor in regard to the withdrawal of the Demotion Notice and offered to pay the resident’s legal fees.
The landlord’s ASB officer emailed the resident on 30 June 2021 to say her intention was to call the resident once a week to check in on how things were going, and she would visit when she was on out of hours patrol, usually once per fortnight. The resident responded the same day, thanking her and confirming things had recently been ok.
On 14 July 2021, the resident made further complaints to the landlord about the restriction on parking on the land behind his property, stating he was being singled out as he had parked there for 24 years. The landlord responded, re-iterating that there were high numbers of complaints being received about parking issues, the land was housing owned and was never designated to be used for parking.
On 29 July 2021, the landlord sent the resident its response to the stage 2 complaint. In summary, it said:
1. It had previously conceded that the resident was correct that the ASB and Hate Crime Policy had not been followed correctly when the notice of demotion was issued. This was realised on receipt of the resident’s solicitor’s letter. As a result, the notice was formally withdrawn, and it had been agreed the resident should be fully compensated for his legal fees.
2. When the new ASB officer took over the resident’s case, the landlord had undertaken discussions on the case with its senior managers and completed a full review of the substantiated evidence.
3. It understood the new ASB officer had been in contact and agreed the frequency of contact with the resident. She had also recently issued a verbal warning to the neighbour, having seen substantiated evidence of their behaviour towards the resident.
4. The option of mediation was being revisited.
5. It did not uphold the conflict-of-interest allegation as the investigating officer had not agreed, or had oversight of the notice of demotion, and was integral in having it removed. The decision was taken in consultation with its legal and senior management team.
6. It clarified that the allegations against the resident were for “rude and abusive behaviour” towards his neighbour and full details were set out in the ABA.
7. It offered a ‘time and trouble goodwill gesture’ of £150 in recognition of the time and trouble it had taken to bring his concerns to the landlord’s attention.

Assessment and findings

Scope of investigation

The resident advised this Service that his mental health had suffered significantly as a result of the ASB experienced from his neighbour and the landlord’s failure to act. The Ombudsman does not question the resident’s evaluation of the serious impact this situation had on his health. However, as this Service is an alternative to the courts, it is unable to establish legal liability or whether a landlord’s actions or lack of action had a detrimental impact on a resident’s health. Nor can it calculate or award damages. The Ombudsman is therefore unable to consider the personal injury aspects of the resident’s complaint. These matters are better suited for consideration by a court or via a personal injury claim. The resident can take independent legal advice on this matter should he wish to do so.
As previously mentioned, the LGSCO has already considered this case and found that there was no general fault in how the Council investigated the complaints of ASB both by, and against, the complainant. This investigation will therefore focus only on the elements of the complaint the LGSCO could not, which relate to the Council’s role and actions taken as his landlord.

Landlord’s Legal and Policy Context

On the landlord website, it commits to addressing ASB. It considers ASB to include:
1. noise nuisance.
2. drug taking and dealing.
3. threatening or rowdy behaviour.
4. violence and disorder.
5. vandalism.
There are activities set out on the website that the landlord does not consider to be ASB, including:
1. general living noise.
2. DIY during the day.
3. people talking at normal volume in their home or garden.
4. people being inconsiderate or thoughtless.
5. people looking or staring.
Its high and medium risk (1&2) cases are referred to and dealt with by the council’s ASB team and lower risk (3) cases are dealt with by housing’s tenancy management team.
The landlord’s tenancy agreement requires that the resident, household members and visitors must not do anything in the property or the local vicinity which causes, or may cause a nuisance / annoyance or inconvenience to any resident, visitor or work operative. The agreement says it takes complaints of ASB seriously. If it is evidenced that a resident has behaved in an anti-social way, the landlord can take steps against them which include:
1. Asking them to sign an ABA.
2. Seeking an injunction in the court.
3. Seeking an ASB order from the court.
4. Seeking a court order to grant a demoted tenancy.
5. Seeking a possession order from the court.

Assessment

When the landlord received allegations and counter allegations of low level ASB from neighbouring residents, it was appropriate to conclude that this was a neighbour dispute. As such, it was reasonable for the landlord to suggest mediation, and make the referral.
Mediation is not an enforcement measure as the landlord sets out in its ASB policy. As such, both parties in the dispute must enter into it voluntarily. When the resident declined to participate, in favour of taking independent legal action, the landlord was unable to pursue this option any further.
The resident was of the view that when the landlord approached him following complaints about his behaviour, he was being singled out and unfairly treated by the landlord, as it was acting on reports against him but not reports of ASB that he was making about his neighbour.
The resident’s complaints about his neighbour were not determined to be incidents of ASB in accordance with the landlord’s policies. These included issues such as parking in the street in unrestricted parking areas, carrying out refurbishment work in daytime hours, making noise which was not considered by environmental health to be at a level for statutory nuisance and recordings that did not establish nuisance or harassment. The landlord did not dispute that the neighbours’ actions may have on occasion been to provoke the resident, but it did not have grounds to take further action on these matters. However, the allegations made about the resident by the neighbour, that he had been aggressive, made derogatory comments and was recorded aiming a hose at him, were considered to be ASB in accordance with the landlord’s policies and were corroborated with evidence in the video footage. It was therefore appropriate for the landlord to issue the resident a warning in accordance with its tenancy agreement. This was evidence that the landlord had adhered to its policies and not that the resident was being treated unfairly.
One of the issues integral to the dispute between the resident and the neighbour was parking. There was no allocated parking on the estate and parking was on a first come first served basis. The resident had been parking on a piece of access land behind his property for many years, but the landlord made it clear following a parking review that this was its land and was not allocated for parking. The resident felt this was as a result of the neighbours’ complaints and by taking this action, the landlord was singling him out unfairly. As parking was becoming a reoccurring area of complaint, it was not unreasonable for the landlord to review its position on parking and make the decision to take a more robust approach on where it was appropriate or not appropriate to park. The notice went out to all households who had access to the area and not just the resident. The landlord owned the land, and whilst it might have used its discretion about parking there in the past, it was within its rights to prevent parking there in the future to mitigate against rising complaints.
The landlord serving a demotion notice on the resident was not appropriate and caused the resident immense distress. The policy and tenancy agreement set out that this course of action is usually taken for higher-level cases of ASB or where persistent ASB has occurred. The resident employed a solicitor to challenge that the landlord had not evidenced this was the case. The landlord, on receipt of the solicitors letter upheld the resident’s complaint on this issue and acknowledged that this action was not reasonable. The landlord put right the failing by apologising to the resident and withdrew the notice. On further request by the resident, the landlord also agreed to pay the legal fees incurred by the resident to challenge this decision, and offered £150 for his time and trouble raising the complaint. Payment of the expenses incurred, and award of compensation was within a range that the Ombudsman would recommend where service failure has adversely affected a resident, so this Service would consider this to be reasonable redress.
It was not inappropriate for the landlord to ask the resident to sign an ABA in accordance with its policy. Neighbour disputes can easily escalate through misinterpretation and frustration. Mediation can be the key to diffusing these situations, but as a result of both parties not being able to agree who should attend, this was not progressing. An ABA is devised to highlight the behaviours occurring and encourage the party involved to recognise the effect their behaviours are having on a situation or others, in order to address it. In the absence of mediation, an ABA was appropriate to attempt to break any pattern of behaviour that might be enflaming the situation and not improving it.

Determination (decision)

In accordance with paragraph 53b of the Housing Ombudsman Scheme the landlord has made an offer of redress prior to investigation which, in the Ombudsman’s opinion, resolves the complaint about the landlord’s handling of the counter-allegations of ASB against the resident by the neighbour.

Reasons

The landlord served a notice of demotion on the resident for counter claims of what the ASB team had determined to be low level ASB. This caused immense distress to the resident. However on receipt of a complaint from the resident via his solicitor the landlord reviewed its actions and agreed service of the notice of demotion was not the action it should have taken. It withdrew the notice, and agreed to refund the resident for all legal costs incurred to resolve. Whilst the resident was not happy that the landlord continued to pursue the lesser action of an ABA, it was within its rights to exercise its powers as a landlord for any breach it considers to have taken place, under the conditions of tenancy.

Recommendation

In light of the landlords acknowledged failings in the serving of a notice of demotion for these incidents of ASB, the Ombudsman recommends:
1. The landlord considers a review of its ASB policy and how it is implemented.
2. Completes staff training on the implementation of the ASB policy and tenancy enforcement action for ASB.