Kingston upon Thames Council (202116744)

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REPORT

COMPLAINT 202116744

Kingston upon Thames Council

16 September 2022

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

This complaint is about:
1. The landlord’s response to the resident’s reports of anti-social behaviour (ASB) from several neighbouring properties;
2. The landlord’s complaint handling.

Background and summary of events

Background

The resident is a secure tenant, and her current tenancy began around 2008. The property is a self-contained maisonette on the first floor of a block. The landlord is the resident’s local authority. This assessment refers to both the landlord and the local authority. This is because the actions of the landlord and the local authority were sometimes distinct.
The landlord’s relevant ASB policy can be found online. It shows the landlord classifies ASB according to severity, which allows it to prioritise cases accordingly. The landlord will respond to category one cases, including violent incidents, within 1 working day. Category two cases, such as regular noise disturbances, have a three working day timescale. It will respond to category three cases, typically minor nuisance, within five working days.
The policy shows the landlord’s response to reported ASB will be proportionate to the behaviour exhibited. ASB complainants will be updated regularly about the landlord’s progress. The policy does not define “regular” or specify any update timescales. It confirms non-legal measures available to the landlord include meetings, warning letters and working in partnership with other agencies. Any legal action against perpetrators must be supported by appropriate evidence.
The landlord operates a two stage formal complaints process. Its complaints procedure confirms it responds to complaints within 15 working days at both stages. The landlord’s single point of contact (SPOC) handles all communication with the resident in accordance with her contact restriction. The resident is unhappy with this arrangement, but the Ombudsman previously determined it is fair (cases 202010080 and 202116746). This assessment will not revisit matters the Ombudsman has already decided.
For readability, this report will refer to the neighbours as neighbour A, B, C and D based on their order of appearance in the timeline. The information seen shows the resident is engaged in a long running dispute with neighbour A that dates back to at least 2014. During this time, she reported neighbour A’s barbeques to Environmental Health (EH). Ultimately, no action was taken and in 2019 the fire service confirmed the barbeque was not a fire hazard.

Summary of events

On 18 April 2021 the resident emailed the landlord two completed ASB diary sheets. She said the landlord should forward them to its local manager (the manager), who should call her to discuss them. Further, the landlord should send her additional diary sheets. The resident’s call back request was contrary to her existing SPOC arrangement. The sheets detailed alleged ASB incidents relating to two neighbouring properties in the block. In summary, the resident’s sheets said:
1. The neighbour directly below the property (neighbour A) had a number of barbeques under the property’s windows in recent weeks. Despite keeping the windows shut, smoke entered the property and made the resident cough. The situation was especially unfair because she was vegetarian. The neighbour’s actions were also dangerous because the barbeque was close to a wooden fence.
2. The resident was woken by noise disturbance from another neighbour (neighbour B) around 15 times during the last few weeks. The noise broadly occurred between 6am and 8:30am. It was caused by the neighbour banging on the walls, slamming doors and revving a motorbike.
On 21 April 2021 the SPOC forwarded the sheets to the manager and updated the resident by email. This was the third working day after the resident’s initial correspondence. They said, having spoken to the manager and EH about her reports, they understood she had already raised her concerns with EH. Further, she was told EH wrote to one of the neighbours but the “short and sporadic” nature of the noise meant court action was unlikely. Further, the manager was aware of EH’s actions but the resident should report further incidents.
The resident raised a formal complaint over two emails the same day. Her concerns focussed on the landlord’s response to her ASB reports. She said the landlord had failed to respond to ASB from neighbours A and B over several years. Her main points were:
1. The SPOC was slow to forward the diary sheets and the manager failed to call back as requested. Similarly, the landlord had not sent her any additional diary sheets.
2. EH had only acted in relation to neighbour B. It also overlooked the resident’s concerns about neighbour B banging on the wall. As a result, the manager should have, at least, acted in relation to neighbour A’s “breach of tenancy”.
The manager responded to the SPOC on 23 April 2021. They said they would contact neighbours A and B about the resident’s reports, and send her additional diary sheets. However, the resident should be reminded that any discussions about the reported ASB would be with the SPOC.
The landlord’s internal correspondence from 27 April 2021 shows it spoke to neighbour B the previous day. It said the contact was prompted by the landlord’s recent letter. It shows neighbour B made a number of counter allegations against the resident, including causing noise disturbance late at night. Further, neighbour B reported leaving the block at the same time every morning. The landlord noted this information was inconsistent with the resident’s diary sheets.
The landlord’s internal correspondence from 28 April 2021 suggests it posted the resident additional diary sheets the same day. The information seen suggests the resident reported another neighbour (neighbour C) was slamming their front door around this time.
On 4 May 2021 the resident reported noise disturbance from neighbour B was ongoing. She said neighbour B ignored the landlord’s recent letter because she was still being woken by the same intrusive sounds. Further, the landlord should forward her email to the manager and EH. Additionally, it should confirm what action would be taken to prevent the situation.
In internal correspondence soon afterwards, the landlord said the resident’s reports needed clarifying to understand: how long the motorbike was revving, which doors were slamming and what time the reported events were occurring. It also said neighbour B reported that the landlord previously installed a door closer to prevent their front door slamming.
The landlord’s call records show it spoke to neighbours A and B on 4 May 2021 about the resident’s reports. The following is a summary of the information captured:
1. Neighbour A said the barbeques were not a regular occurrence and the fire service previously confirmed there was no problem. Further, the resident “(did) lots of things”, including using a washing machine in the early hours, but neighbour A was not minded to complain. The landlord asked neighbour A to be mindful of other residents and to consider notifying them in advance of barbeques. This was so other residents had an opportunity to close their windows.
2. Neighbour B said none of their doors banged, due to the closer, and the block’s other doors were typically wedged open. Further, they denied revving their motorbike excessively in the morning. They said the resident did things they had not complained about, including hovering and “banging around” in the early hours.
On 8 May 2021 the resident submitted further ASB diary sheets by email. She again asked the landlord to forward them to EH and the manager. The Ombudsman was unable to access the sheets at the time of this assessment. The information seen shows they detailed ASB noise from a neighbour in a nearby block (neighbour D).
On 10 May 2021 the landlord notified the resident it had followed her instructions. The following day it told her the local authority was aware of the reported issues and it was working with the police to address them. Its 11 May 2021 update was on the second working day after the resident submitted her additional diary sheets.
The landlord wrote to the resident on 12 May 2021. Its letter detailed the findings of its investigation into the resident’s ASB diary sheets about neighbours A,B and C. The main points were:
1. Neighbour B refuted the resident’s allegations and no similar reports were received from other residents. Having discussed the situation with EH, there was no evidence that neighbour B was causing a statutory nuisance. Further, the sounds reported were considered everyday living noise.
2. The landlord appreciated smoke blowing into the property was unpleasant. However, neighbour A said the barbeques were not a regular occurrence and precautions were taken. The landlord asked them to be mindful of other residents and advised the situation would be monitored. It was aware the fire service previously found the barbeque was not a fire hazard.
3. Neighbour C said their front door needed pulling firmly to close. However, they refuted slamming it. The noise would be considered everyday living noise unless the resident could provide recordings to show a statutory nuisance was being caused.
The same day, the resident asked the landlord if the manager had written to neighbour D about their behaviour. If not, she said, she wanted to raise a complaint about the manager. This was on the basis they were responsible for dealing with ASB. In a further email, the resident said the police had declined to deal with the reported noise and signposted her to the landlord. The information seen suggest the landlord ultimately raised another complaint in response to the resident’s concerns.
The landlord’s internal correspondence from around this time shows the nearby block was the responsibility of a different department within the local authority. Further, this department was aware of a number of ASB reports and was working with the police. Later correspondence said the block was rented from a private landlord and managed by an organisation that specialised in working with the homeless (the managing agent). The information seen suggests the landlord forwarded the resident’s ASB reports to the managing agent at this point.
On 13 May 2021 the landlord issued a stage one response. This was 15 working days after the resident’s formal complaint. The complaint was not upheld. The main points were:
1. The landlord’s actions were consistent with the SPOC arrangement. Its investigation of the resident’s reports was not hampered by the arrangement.
2. The landlord had not refused to act in relation to ASB. It was obliged to ensure any tenancy action was reasonable, proportionate and evidence based. The resident’s reports were investigated and her ASB concerns were raised with neighbours A and B during this process.
3. No other residents had complained about neighbour B. Nor was there any evidence they were causing a statutory nuisance. Formal action against them was therefore unjustified.
4. Neighbour A was advised to consider the impact of barbeque smoke on other residents. The landlord would keep the issue under review, but it had no health and safety concerns about the barbeque. It also noted the fire service’s 2019 findings.
5. The manager had not refused to provide the resident additional diary sheets. They had advised additional diary sheets were sent by post “since” 18 April 2021.
On 14 May 2021 the resident asked the landlord to escalate her complaint. Her main points were:
1. The SPOC did not inform the resident about any actions the manager took in response to her reports. The manager also failed to update the resident, who was unable to provide any additional information because they did not call her as requested.
2. The landlord was naïve to think the alleged perpetrators would admit causing the reported ASB. If the landlord’s investigation process consisted of a quick review of the diary sheets followed by a discussion with the neighbours, then its process was questionable.
3. The landlord had not asked the resident for supporting video evidence. Over the years, it had also ignored the resident’s video footage. The landlord previously told the resident such footage breached privacy laws, but the police had given contradictory advice.
4. The resident felt the SPOC had sent the diary sheets rather than the manager.
The landlord acknowledged the resident’s escalation request the following day. It said it would not review the fairness of the SPOC arrangement again. Further, it was unable to consider the resident’s new concerns, broadly about the level of information provided by the SPOC, as part of the same complaint.
On 15 May 2021 the resident raised a separate complaint to address her new concerns. She said the complaint was about the SPOC not informing her of the manager’s response to her diary sheets reporting ASB from neighbours A, B and C.
On 17 May 2021 the resident asked the landlord to raise another formal complaint about the SPOC’s level of communication. She said the SPOC did not inform her EH had issued neighbour D a warning letter, or that someone else had made a similar ASB complaint about them. She also said the SPOC should have given her the relevant EH officer’s details. Further, they should have told the EH officer to contact the resident to establish whether she needed noise monitoring equipment.
The landlord updated the resident the same day. It said it had different categories of residents and housing, so it also had a number of different processes. As a result, several agencies were involved in running the nearby block instead of a manager. However, the resident could continue to report associated ASB to the landlord or the police. The landlord’s email relayed the below information from EH:
1. EH sent neighbour D a warning letter on 11 May 2021 in response to reported noise. This letter gave them 14 days to stop causing further disturbance.
2. If the noise persisted after the deadline, EH would need to witness the disturbance to establish whether it amounted to a statutory nuisance.
3. To constitute a statutory nuisance, the disturbance “must be excessive, regular or constant and…substantially and unreasonably interfere with the complainants wellbeing, comfort or enjoyment…”.
The resident replied the following day. She asked about the ownership structure, agencies involved and occupants of the nearby block. She also asked if she needed to provide more diary sheets to EH or whether she would be given noise monitoring equipment. The landlord’s subsequent correspondence suggests it replied the resident could continue using diary sheets until advised otherwise. The Ombudsman has not seen this advice but the resident did not dispute this version of events.
In internal correspondence on 25 May 2021, the landlord said it previously agreed to overhaul neighbour C’s door to reduce noise. The wording indicates this action was agreed during a discussion with neighbour C about the resident’s report of noise nuisance. The correspondence said the landlord had just raised the corresponding works order.
On 3 June 2021 the landlord responded to the resident’s initial complaint at stage two. This was 13 working days after her escalation request. It said the manager’s actions were “timely, appropriate and proportionate”. Further, the landlord’s overall response met its required standards for reported neighbour nuisance. Additionally, no issues were identified with the landlord’s stage one complaint handling. As a result, the resident’s complaint was not upheld and the matter was closed. However, any future disturbances should be reported.
On 8 June 2021 the landlord responded to the resident’s second complaint at stage one. The response included her additional concerns from 17 May 2021. The complaint was not upheld. The main points were:
1. The SPOC had updated the resident on 21 and 28 April 2021. The first update confirmed the manager was aware EH had visited the property and they agreed with EH’s response. The second update confirmed the manager would contact the neighbours about the resident’s ASB sheets and that additional sheets would be posted. (The Ombudsman has not seen the second update but the resident has not disputed this version of events).
2. The SPOC’s above updates kept the resident sufficiently informed about the manager’s actions in relation to the reported ASB from neighbours A,B and C. The SPOC was not expected to relay further details because other actions were completed by different teams. The landlord did not typically update residents about every action taken in response to reports of ASB.
3. Similarly, the SPOC’s 11 and 17 May 2021 emails relayed appropriate information about the actions being taken by various agencies to address the ASB issues linked to neighbour D. In addition, the SPOC also relayed the resident’s requests to EH. The resident had not asked them to arrange for EH to call her about noise monitoring equipment.
4. The SPOC was not required to provide the resident with a specific EH officer’s details. Nor was it appropriate for the SPOC to advise the resident whether other reports of ASB had been received about neighbour D, unless they were instructed to relay this information by EH.
The resident asked to escalate her complaint the following day. This was on the basis neither the SPOC nor the manager informed her about any of the actions detailed in the landlord’s ASB letter. The information seen suggests her concerns related to the landlord’s letter from 12 May 2021. She also said EH failed to update her or recommend any further actions. She also said she continually asked the SPOC for additional information, but was told to continue submitting diary sheets.
On 30 June 2021 the landlord responded to the resident’s second complaint at stage two. This was fifteen working days after the resident’s escalation request. The resident’s complaint was not upheld. The main points were:
1. The manager correctly updated the resident through the SPOC. However, they were not party to the full details of the local authority’s response because some activities were completed by different teams. Overall, the SPOC passed on all the relevant information within the landlord’s remit.
2. The landlord did not usually update residents on every action taken in response to reports of noise/ASB. This was due to the pressure that this approach would place on its resources.

Assessment and findings

It is recognised the situation is frustrating for the resident. The Ombudsman has seen a video which appears to capture ASB noise from neighbour D. It shows a group of men shouting in a front garden at night. Most of the block’s lights were off, so it appears to have been recorded in the early hours. It is reasonable to conclude most people would find the level of noise captured in the video distressing.

The landlord’s response to the resident’s reports of ASB from neighbouring properties

It is the Ombudsman’s role to assess the appropriateness and adequacy of the landlord’s actions in responding to reports of ASB and the fairness and reasonableness of its response to the formal complaint. This does not include establishing whether a party is responsible for ASB; our investigation is limited to the consideration of the actions of the landlord in the context of its relevant policies/procedures as well as what was fair in all the circumstances of the case. The Ombudsman cannot tell the landlord to take action against neighbours.
The resident’s initial complaint concerned the landlord’s response to her email on 18 April 2021. It is understood she feels the SPOC arrangement hindered the landlord’s response to her ASB reports. However, the information seen shows the landlord responded to her reports about neighbours A, B and D in line with its ASB policy timescales. For example, the policy shows regular noise disturbance warrants a category two response. The timeline shows the landlord responded within three working days in April and May 2021.This was appropriate action from the landlord given the circumstances.
It was noted on both of the above occasions EH was already aware of the situation and had taken its own actions in response. In contrast, little information was seen in relation to neighbour C. For example, the Ombudsman has not seen the resident’s initial report to allow us to measure the landlord’s response. However, no information was seen to show the resident raised any concerns about the landlord’s response speed in relation to neighbour C. Instead, her later concerns centred on the landlord’s lack of information/updates.
The resident’s call back request was not consistent with the SPOC arrangement. Further, no information was seen to show she was unfairly denied the opportunity to provide important information about her ASB case. In relation to her request for additional diary sheets, the information seen was inconsistent. For example, the timeline suggests it took the landlord seven working days, between 18 and 28 April 2021, to comply. The landlord’s complaint correspondence suggests it posted additional sheets beforehand, and the resident did not dispute this version of events. Overall, there was no evidence to support a failure on the landlord’s part.
In relation to the resident’s second complaint, the timeline shows the landlord relayed key information to the resident within a reasonable timeframe. Further, it promptly passed on information to other agencies as appropriate. For example, the timeline suggests it forwarded the resident’s diary sheets to the managing agent within two working days, between 8 and 12 May 2021, of receiving them. While the resident was unhappy with the level of detail it provided, no information was seen to show the landlord failed to comply with any obligations outlined in its ASB policy.
The above actions were appropriate because the landlord was not responsible for every aspect of the local authority’s response. For example, the landlord could not independently establish whether the reported noise amounted to a statutory nuisance, and it was not responsible for managing the nearby block. Where it was within the landlord’s remit to act, the landlord responded appropriately by using the measures outlined in its ASB policy. For example, it discussed the resident’s concerns with the neighbours in detail, with a view to resolving the issues, and worked with other agencies such as EH.
Overall, the evidence confirms the landlord’s response to the resident’s reports was both appropriate and in line with its ASB policy.

The landlord’s complaint handling

This assessment also considered the landlord’s complaint handling. The timeline shows the landlord consistently responded to the resident’s complaints within its relevant timescales. Some inconsistency was noted between the content of the resident’s 14 May 2021 escalation request and her new complaint the following day. Given her escalation request introduced additional complaint issues, the landlord was entitled to advise the resident to raise a new complaint, so they could be subjected to a stage one investigation.
Further, in relation to the new complaint, it was for the resident to set out her concerns accordingly. The landlord’s subsequent investigation would naturally be shaped by the wording of these concerns. The information seen suggests the resident raised additional complaints about the landlord’s ASB handling around the same time. On that basis, the landlord may have responded elsewhere to the issues referenced in the resident’s escalation request. Regardless, no information was seen to point to a failure on the landlord’s part. Overall, there was no maladministration in respect of its complaint handling.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration in respect of the landlord’s:
1. Response to the resident’s reports of anti-social behaviour (ASB) from several neighbouring properties.
2. Complaint handling.

Reasons

The evidence confirms the landlord’s response to the resident’s reports was both appropriate and in line with its ASB policy.
No information was seen to point to any failures in respect of the landlord’s complaint handling.

Recommendations

The landlord to check its records to ensure a closer was ultimately fitted to neighbour C’s front door.
The landlord to consider making ASB diary sheets available through its website. This is with a view to ensuring residents can easily source their own copies independently.
The landlord to confirm its intentions in relation to the above recommendations to this Service within four weeks.