Westminster City Council (202100958)

REPORT

COMPLAINT 202100958

Westminster City Council

2 June 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 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 response to the resident’s:
1. Reports of antisocial behaviour.
2. Formal complaint.

Background and summary of events

The resident is a tenant of the landlord’s property. The property is a one-bedroom flat located on the second floor of a block.

The landlord’s policies and procedures

The landlord’s statement of policies and procedures on tackling ASB (the policy) states:

“We define anti-social behaviour as follows:-

Acting in a manner that causes or is likely to cause harassment, alarm or distress to any person.
Conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.
Conduct capable of causing nuisance or annoyance to any person which directly or indirectly relates to or affects our housing management functions.
Using or threatening to use residential premises for immoral or illegal purposes”.

Summary of events

On 29 January 2019, an antisocial behaviour (ASB) case was raised by the landlord in response to the resident’s reports of noise nuisance. The resident had reported frequent drilling, which she said was not DIY, and other loud noises from neighbours living alongside her. The resident expressed her belief that something inappropriate was going on in a nearby property (Flat A).
In correspondence to the landlord, the resident said that she had previously reported the matter, but it was not resolved. She believed the neighbours’ behaviour was obsessive and that they were deliberately causing nuisance.
The landlord acknowledged the resident’s correspondence on 30 January 2019, and asked if she could call back to discuss the matter further. The ASB case manager (the manager) also left a voicemail message for the resident, and the following day called and advised her that he would go to the neighbouring address to investigate further. He added that he would ask if other residents had heard the drilling and shouting; but that if no further information came forward, the case would be closed.
The resident subsequently contacted the landlord on 20 February 2019 and asked for a meeting to be arranged. A meeting was scheduled for 8 March 2019; however, it is not clear if this meeting went ahead.
On 27 March 2019, the resident emailed the landlord regarding the noise of drilling at 06.10AM from Flat A. In response, the landlord advised that it still wished to meet with her to discuss the reports further, and that it could not take any action until such a meeting had taken place.
The landlord wrote to all residents in the block on 11 April 2019. It asked if residents could provide any details of ASB taking place; and for illegal activity and noise nuisance to be reported to the police and the local authority noise nuisance team respectively.
The landlord closed the ASB case on 18 April 2019 and the manager wrote to the resident to advise that he had visited Flat A, and the residents had also heard the drilling noise. He said that they had advised that they could hear the noise in the mornings, and believed it was emanating from the resident’s property.
The manager said he had delivered letters to each property in the block, and the next block to see if others had been affected but had no response. He said the noise was believed to be a mechanical noise between the flats, and that the landlord did not have the equipment to deal with this. As a result, the ASB case was closed.
There is no evidence of further contact from the resident until 19 September 2019, when the landlord’s internal correspondence details that the resident had met with staff and the leader of the council. On 11 November 2019, the resident emailed her local councillor with a recording file. In later correspondence, the resident advised that the noise was daily drilling, out of hours. She said that it was eroding the communal wall, and had gone on for over 18 months. She added that other residents also had concerns. The resident added that there were other matters of concern too – including eggs cracked in the communal doorway, and the dustbin lock being vandalised. The councillor emailed the landlord the next day and asked for an update about the action it was taking.
It is not clear from the evidence that has been provided to the Ombudsman what action was taken in response. However, it is noted that the resident had also been in discussion with both the councillor and the landlord about repairs issues at the same time, and these were being investigated internally.
On 24 January 2020, the resident emailed the landlord to chase a response following the discussions that had taken place in September 2019.The landlord acknowledged the resident’s email on 3 February and apologised that she had not been contacted. On 13 February 2020, the landlord’s Acting Head of Housing Operations (AHHO) emailed the resident to advise that that he had had asked the ASB team to contact her again to discuss issues reported in respect of the neighbouring properties.
The resident emailed the AHHO with a sound recording on 9 March 2020. The AHHO replied the next day to thank her for reports, and advised that the recording had been passed to the ASB team to deal with. A further report was sent by the resident on 11 April, which the AHHO confirmed he had forwarded.
On 15 April 2020, the resident emailed the landlord in relation to scaffolding that had been erected, and the associated noise. The landlord replied the next day and said the issue would be investigated. It subsequently confirmed on 24 April and that the resident’s concerns had been raised with the repair team. Contact details for the ASB team were also provided. The resident replied to advise that she was already waiting to hear from the ASB team about the erosion of her communal wall by the neighbours’ drilling, and asked for someone senior to contact her.
A complaint was logged by the landlord on 1 July 2020, following a call from the resident. On 6 July 2020, an ASB case was raised following reports by the resident of youths outside taking /dealing drugs near a second property (Flat B).
A response to the complaint was issued by the landlord on 15 July 2020.It said:
1. The ASB concerning Flat B was currently being dealt with by a named officer.
2. The noise complaint regarding Flat A was dealt with by the Housing Services Officer, who had tried to contact the resident but was unable to.
3. So that it could take appropriate action, it would be helpful if the resident could elaborate on the specific types of behaviour she had witnessed/heard. It added that the Housing Services Manager (HSM) had attempted to call so that the matter could be discussed further, and had left messages. The HSM’s email address was provided, and the resident was asked to make contact to arrange time to call.
4. The complaint was not upheld at that time due to a lack of information. Escalation rights to stage two of the landlord’s complaints process were given if the resident was dissatisfied with the response.
On 23 July 2020, the landlord emailed the police to ask if it had received any reports of ASB – in particular in relation to drug use. The police advised that it had not received any reports and asked if the resident could call 101 or report any issues online.
The landlord relayed this message to the resident on 27 July, and confirmed that the case would be closed. The ASB case manager said that he had tried, without success, to contact her by phone; and as there had been no new reports, the case was closed. He confirmed that the police had not received any reports, and that the resident should call the police if she suspected drug dealing.
On 10 August, the resident spoke to the ASB case manager and advised there was drug dealing going on. The ASB case manager confirmed that the matter would be raised at the next Neighbourhood Coordinator meeting. The following day, the resident emailed the AHHO and said that this was not a new case, and the ASB team had received 15 months of reports. The resident added that she was unhappy that the case had been closed as the issues had continued.
On 28 August 2020, the resident emailed the landlord and asked to escalate her complaint. The resident emailed the landlord on 8 September 2020 regarding some repairs issues; and the same day the landlord replied to advise that it had been contacted by this Service regarding the ongoing noise and ASB. The landlord asked the resident to confirm the reasons why she wished for her complaint to be escalated.
Following further attempts to discuss the case, the ASB case manager called the resident on 17 September 2020. The resident had advised that she had been having problems with her email; and the manager therefore left a voicemail message asking if the resident could forward the crime reference numbers.
These were duly provided and on 22 September 2020 and the ASB case manager emailed the police with the crime references for July to September and asked for updates on these. The same day, the Complaints Officer emailed the resident and advised that the ASB case manager was passing the crime references to the police and would contact her that week and asked if there were any times which would suit her. The email said that the two ASB case managers had tried to contact her to discuss the noise nuisance and asked the resident to contact either of two officers, as the landlord was unable to progress her complaint further without information.
The police emailed the landlord on 23 September 2020 and advised that it had closed the cases as it did not have any evidence of the incidents relating to criminal activity. Accordingly, on 24 September 2020, the ASB case manager left the resident a voicemail advising that the case would be closed as there was insufficient evidence to take further action. This was confirmed by letter the next day.
On 28 September 2020, the resident emailed the landlord to explain that she had had a complaint ongoing long before the stage one that appeared to be raised last July. Regarding the ASB, she said she had provided recordings, but it appeared that these had not been listened to. The resident said that the ASB had increased during the pandemic, and should have been dealt with by the landlord and the police. She said that the area was now favoured by organised crime; and whilst she was on the Safer Neighbourhoods panel, the Safer Neighbourhood police in the area were understaffed and overstretched. The resident asked for a formal response.
The second stage complaint response was issued by the landlord on 7 December 2020. It said:
1. It noted that the resident had initially reported the following:
  1. Drilling noise coming from a neighbouring property which happens out of hours and is a repetitive noise. The resident did not believe this noise to be related to DIY.
  2. A creaking door, light switch sounds and the sound of furniture being moved.
  3. Noise coming from the airing cupboard.
  4. A problem with the basement flat verbally abusing her.
  5. That her son was verbally abused.
  6. An issue with organised crime.
2. It had taken a number of steps including contacting the police and writing to other residents. However, it needed more information to take action and as it had been unable to arrange contact with the resident the case had been closed.
3. The resident reported further issues on 1 July 2020, including persistent ASB nuisance from the residents at the flat alongside; neighbours carrying out decorating activity and loud drilling at 5.15 am from Flat A.
4. It opened a new case on 2 July; however, this was closed without any action being taken, as it was unable to speak with the resident to obtain further details.
5. On 9 September 2020 it logged a complaint from the resident; and wrote to her on 21 September to advise that it would need further it would need further information.
6. The resident then supplied four crime references which were closed by the police as there was insufficient information to take action. The resident sent an email including a report on serious crime in the area, but no specific incidents were reported.
7. It apologised for the delay in responding to the complaint. It explained that the initial email was sent to an email account the team no longer use, and there was some confusion on the landlord’s part as to what the specifics of the complaint were.
8. It wished to offer £100 compensation in recognition of the inconvenience caused by the delay. This was comprised of £50 for the time and trouble the resident had taken to pursue the matter; and £50 for the delay in escalating her complaint and providing her with a response
9. The resident’s complaint about the landlord’s handling of the ASB reports was not upheld as there was insufficient evidence to progress an ASB case. It added that the ASB team would continue to work with the resident, if more specific information could be provided. The resident was advised that she could refer her complaint to the Ombudsman if she remained dissatisfied.

Assessment and findings

The resident’s reports of ASB

On receiving a report of ASB, the landlord has a duty to investigate the report and to consider whether there is any evidence to corroborate it, before deciding whether it would be appropriate to take any action. This is detailed in the landlord’s ASB policy, but also in guidance issued by the Home Office. ‘Anti-social behaviour powers: Statutory guidance for frontline professionals’ states that the first step on receiving a report of antisocial behaviour is to assess whether it can be substantiated. It follows that the landlord cannot take action based solely on a report from a resident.
Based on the evidence that has been provided to the Ombudsman, the landlord took proportionate steps to try to investigate the issues the resident had reported. The landlord acted promptly in January 2019 to acknowledge the resident’s concerns and to gather evidence from other residents of the block. It also attempted to arrange a visit to the resident’s property; however, the evidence is unclear as to whether a meeting went ahead.
The landlord subsequently concluded that there was insufficient evidence for it to take any action and the resident was informed of the case closure in April 2019. This was not unreasonable given the evidence that has been provided to this Service.
It is noted that the landlord considered that the noise may have been a mechanical noise emanating from the space between the resident’s property and a neighbouring one. However, it advised that it did not have the equipment to deal with this. The landlord’s response was not entirely appropriate, as it should reasonably have considered how this could be explored further. It is not clear if the landlord is the freeholder of the building. However, if the noise is being caused by a potential repair issue, then the landlord would have a duty to investigate the matter – or to report it to the freeholder of the building, if it is leased. That the landlord did not take such action was a shortcoming in the circumstances.
It is noted that further reports were made in September 2019, when the resident flagged repair issues with the landlord. It is not clear from the evidence what transpired towards the end of 2019; however, in February 2020 the landlord advised that the ASB team would contact the resident to discuss her reports and concerns in more detail.
A new case was opened in July 2020, after the resident raised her formal complaint, and the landlord tried to contact the resident to obtain more information about the issues she was experiencing. The landlord was unsuccessful in doing so, and the case was closed as a result. This was appropriately detailed in the landlord’s complaint response of 15 July 2020. It is noted that the resident had reported the drilling noise for some time. However, the landlord had appropriately explained that it needed further – and specific – information from the resident to enable its investigation. The landlord had already visited the block, spoken with the neighbours and asked other residents whether they were being disturbed by noises and it did not have any further evidence to support the resident’s reports. It follows that it was not unreasonable or inappropriate for the landlord to close the case without taking any further action.
In addition to drilling noises, the resident also reported the issue of youths gathering and suspected drug-related activity. The landlord appropriately advised the resident that the police would be best placed to deal with drug related matters; and took steps to confirm whether the police had identified anything through its own investigations and attendances. The police confirmed that its cases had been closed as there was no evidence of criminal activity; and as such, the matter could not be explored further by the landlord.

The formal complaint made by the resident

The landlord appropriately acknowledged that its responses to the resident’s complaints departed from its service standards. In recognition of this, the landlord apologised to the resident and offered compensation for the delay and the inconvenience which she was caused.
The Ombudsman is satisfied that the landlord’s offer was proportionate in the circumstances, and in line with our own guidance on compensation awards.

Determination (decision)

In accordance with paragraph 54 of the Scheme, there was no maladministration in the landlord’s response to the resident’s reports of antisocial behaviour.
In accordance with paragraph 55(b) of the Scheme, the Ombudsman is satisfied that the member has offered the resident redress prior to investigation which, in the Ombudsman’s opinion, resolves the concerns regarding its handling of the formal complaint satisfactorily.

Reasons

The Ombudsman is satisfied that the landlord took proportionate and appropriate steps to try to investigate the concerns raised by the resident. The landlord’s actions were in keeping with its ASB policy, and Home Office guidance. While it is noted that the resident continues to be disturbed by noises, there is no evidence of a failing by the landlord in response to the resident’s reports.
While there were delays in the landlord’s handling of the formal complaint, it appropriately acknowledged these – together with the impact on the resident – when it issues its final response to the complaint.

Recommendations

Within four weeks of the date of this determination, the landlord should:
1. Pay the resident the £100 compensation that was offered at the end of the complaints process, if this has not been previously paid.
2. Consider whether there could be a potential repair issue between the two properties concerned; and arrange investigations/report the matter, as appropriate.