Islington Council (202014699)

REPORT

COMPLAINT 202014699

Islington Council

9 September 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

This complaint is about the landlord’s handling of:
1. The resident’s reports of antisocial behaviour from the tenant in a neighbouring flat. The Ombudsman considered the landlord’s handling of the associated complaint.
2. The resident’s request to move home including banding, priority and whether the resident qualified for an extra bedroom.
3. The resident’s concerns about bedroom tax.

Jurisdiction

What the Ombudsman can and cannot investigate is set out in the Housing Ombudsman Scheme (‘the Scheme’) and is called our jurisdiction.
Paragraph 41(d) of the Scheme states:

“41. The Ombudsman cannot consider complaints which, in the Ombudsman’s opinion: d. concern matters in respect of Local Housing Authorities in England which do not relate to their provision or management of social housing, or the management of dwellings which they own and let on a long lease.”

Having carefully considered the evidence, the landlord in this case, which is a council, is not a member of the Housing Ombudsman Scheme for the purposes of rehousing under part 6 of the Housing Act 1996. This is not a landlord activity and therefore, we cannot investigate it. The resident has recourse to the Local Government and Social Care Ombudsman in respect of the handling of the request to move home.
The position is the same concerning the complaint about ‘bedroom tax’. The decision was made by the council acting as an administrator of a benefit/discretionary fund and not a social landlord. Therefore, the Ombudsman cannot investigate this.

The scope of the investigation

This investigation has focussed on the landlord’s handling of the antisocial behaviour only.

Background

The resident is considerably vulnerable with several health problems affecting her physical and mental health.
The resident states she moved into the property in or around 1998 – which was a two-bedroom flat on the fourth floor. Her neighbour, the alleged perpetrator of the anti-social behaviour, moved into their home in around 2011 or 2012. The resident informed the Ombudsman that she has been reporting antisocial behaviour to the landlord since around March 2020. This coincides with the national lockdown measures implemented by the government following the COVID-19 outbreak.
The landlord’s evidence states that the resident initially reported noise from DIY work, children screaming and loud music on 13 March 2020. In response, the landlord stated it wrote to all flats in the block to highlight the reports that had been made. The landlord has not produced evidence to corroborate that it wrote to all residents.
The resident made further reports in May and June 2020 about three separate properties. The reports included allegations of noise caused by DIY works and talking loudly, as well as littering. The landlord states it spoke to the neighbour in the flat below. In response, the neighbour denied the allegations and made counter-allegations against the resident. Following this, the landlord asked the resident to download the ‘noise app’ to document any noise nuisance. The noise app is a mobile phone application which records noise, including where the noise was recorded for evidential reasons.
On 19 July 2020, the resident reported that the neighbour attended her property with her children and argued about a blocked pipe and a leak. The internal evidence states that the landlord did not consider there was enough information to take formal action.
The resident sent medical evidence to the landlord about her medical conditions and how the anti-social behaviour was affecting her well-being. The landlord in turn passed the case to its ‘intensive tenancy sustainment team’ to support the resident.
Following further reports from the resident, the landlord sent letters to all residents of the block with a warning not to cause a noise nuisance.
The landlord reviewed the recordings of the noise presented by the resident and considered it to be ‘everyday living’. The landlord noted that the resident’s reports started as covid restrictions commenced in March 2020.
The resident raised a complaint via the landlord’s online complaint form on 21 September 2020. Specifically, she was not satisfied that the landlord had not taken action against the neighbour.
On 15 November 2020 the resident reported that the neighbour was bullying other residents in the block. The resident also complained that the landlord had not responded to her email correspondence, presumably this related to the complaint.
The Ombudsman has seen evidence that the landlord made a mediation referral on 19 November 2020. The referral form states that the neighbour was interviewed about the noise and refuted the allegations made.
The landlord requested information from the police on 7 October 2020. The report showed that the resident had called the police around 17 times between 26 May and 27 September 2020. The reports included:
1. Noise nuisance and the neighbour breaching COVID regulations in respect of gatherings. The police found no evidence to support this.
2. On one occasion the police believed a report made about the neighbour to have been malicious.
3. The resident alleged that the neighbour had been banging on her (the resident’s) door. The police took no further action.
4. The resident alleged that the neighbour was moving furniture around their home between the hours of 01:00 to 04:00.
5. On one occasion police attended the neighbouring property after reports that the children were screaming. When the officers arrived on the scene, they found the neighbouring property in darkness with the residents in bed and no evidence of a disturbance.
There is no evidence that the police had concerns about criminality and most reports were about noise.
The resident reported that the neighbour had the television on at an unreasonable level at 23:32 on 4 December 2020.
The landlord sent a letter to the tenants in the flats surrounding the neighbouring property to ask if the occupiers had any concerns about noise and the neighbour. The records indicate that one tenant confirmed there was noise from the neighbour. Another tenant stated that whilst there was a noise nuisance, it had not been coming from the property that the resident had complained about, but from another flat in the block. There is no evidence that the landlord investigated this or asked the resident if she could have been mistaken about the property responsible for the noise.
On 2 January 2021, the resident submitted an online report that the neighbour had been moving furniture at 22:47.
The landlord issued a stage 1 complaint response on 7 January 2021. It acknowledged the complaint in September 2020. It said:
1. It had sent letters to the neighbour, who in turn had denied the allegations made against her.
2. The neighbour had made counter allegations that the resident had been knocking on her door and accusing her (the neighbour’s) children of making noise.
3. The neighbour had to contact the police about the resident’s behaviour.
4. None of the neighbours had responded to corroborate the complaints about noise coming from the neighbour’s property.
5. The out-of-hours team had attended the property and when they did, the noise had stopped.
6. The police did not believe the noise was being caused on purpose.
7. The resident should download and make recordings in the noise app.
The resident responded on 8 January 2021 to say that she did not agree with the complaint response. Her grounds for escalation were:
1. The neighbour had made threats to kill the resident
2. The landlord exhibited a lack of empathy towards the resident – given her personal circumstances
3. The landlord had discriminated against the resident
4. The out-of-hours team had not been attending the property promptly to witness the noise
On 9 January 2021, the landlord issued a letter to all tenants of the block. It set out the reports made by the resident and asked all occupants to refrain from behaving in the ways alleged. It said it could take action if the behaviour continued.
The resident made a further online report on 10 January 2021, that the neighbour was moving the kitchen table and that children were running around shouting and screaming.
The resident’s GP wrote to the landlord on 26 January 2021 and explained that the housing situation was affecting the resident’s mental well-being. It explained she was unable to engage in meaningful therapies whilst her housing situation was unstable. The GP asked whether the resident could move home.
On 1 February 2021, the resident reported that her neighbour had assaulted her and grabbed her mobile phone on 29 January 2021. The police report states that:
1. The resident and the neighbour were entering the lift when the neighbour asked the resident not to get into the lift at the same time, due to Covid-19.
2. This caused an argument between the pair.
3. The neighbour is alleged to have snatched a mobile phone from the resident. The police report confirms that the neighbour did take the phone from the resident – but that this was because the resident had put the phone in the neighbour’s face. The follow-up correspondence states that the neighbour handed the phone back to the resident.
The landlord stated that the recording of the incident it reviewed indicated that the resident was asked to calm down by police on several occasions. The landlord reviewed the evidence together with the police report and ultimately concluded that there was no evidence to corroborate the resident’s version of events that the neighbour was an aggressor.
The landlord made a further request for information from the police on 2 February 2021. This disclosed:
1. The resident had made over 80 calls to the police in the last year.
2. Whilst the allegations had included threats to kill the resident, the police had decided that no further action would be taken.
3. The resident made complaints almost daily.
4. There was an indication that the allegations had been ‘malicious.
5. The resident was recorded as the aggressor in the incident on 29 January 2021 – and no further action was taken.
On 17 February 2021, the landlord’s internal records confirmed it reviewed the further recordings presented by the resident. It raised the following concerns:
1. That the noise appeared to be too clear to have travelled between two properties. This indicated the noise was being made by the resident in her own home.
2. Some of the recordings were not made in the block.
3. There was no evidence of an actionable nuisance caused by the neighbour.
On 23 February 2021, the landlord issued a warning letter to the neighbour. It said it would monitor the situation further. Nevertheless, on 25 February 2021, the landlord wrote to the resident and advised that it was closing the anti–social behaviour case. It said:
1. It investigated the reports made by the resident, including the noise app recordings.
2. On review of the evidence, it had concerns over the veracity of the recordings made and alleged that the noise had been in the resident’s own home.
3. The resident had made unwanted comments about the neighbour to the landlord in respect of their residence in the UK. The landlord highlighted that the comments were unacceptable.
4. The neighbour had made counter-allegations about the resident racially harassing them and making malicious reports.
5. The landlord reviewed the recording of 29 January 2021 but found the resident to have been shouting – such that a police officer had to ask her to calm down and not put her phone in the neighbour’s face.
The resident responded and explained that the case should not be closed. She copied other residents into her email who she claimed would corroborate her version of events that the neighbour had been a problem to all residents in the block. There is no evidence that those residents did corroborate the resident’s reports. The resident did provide a video allegedly recorded in another tenant’s home. Whilst the resident informed the Ombudsman that other neighbours had created diary entries documenting the noise and that she had provided these to the landlord; this evidence has not been presented to the Ombudsman.
The landlord issued its complaint review response on 4 March 2021. The landlord apologised for the delay in responding. The landlord stated it could not investigate anti-social behaviour via the complaint procedure. It offered £25 compensation for the delay in providing the complaint response.
The resident responded on 12 March 2021, in which she explained:
1. She did not accept the landlord’s reasons for the delay in responding to the complaint
2. She had endured mental torture at the hands of the neighbours for a year.
3. The resident’s neighbour had also complained to the police.
4. The resident found £25 compensation unacceptable.
In April and May 2021, the resident was invited to view three separate homes. She accepted a new property on 8 June 2021 and moved in at some point in July 2021. The evidence shows that the resident had been on the rehousing register and had been bidding on an ad hoc basis since around 26 November 2017.
The resident made reports on 29 May and 15 and 13 June 2021 that the neighbour was moving kitchen furniture late at night. Following the last report, the council’s environmental team attended and found there to be no noise. The resident is alleged to have stated that even though she was leaving the property, she would contact potential bidders on her home to warn them about the neighbour.
The landlord issued its final response on 12 July 2021. In it, the landlord said:
1. It acknowledged the delay in responding.
2. The tenants in the neighbouring flats had not responded to verify the resident’s concerns.
3. The tenancy management team had arranged for the noise app and for the sustainment team to engage with the resident.
4. It had made a referral to mediation, and this had not progressed given the resident’s complex needs.
5. The resident had applied to move home but had initially been advised she was adequately housed. However, since receiving medical forms in January 2021, it had awarded additional medical points – but this was not enough to agree an extra bedroom was needed.
6. Based on the delays in the complaint handling it increased the compensation from £25 to £100.
In referring her complaint to the Ombudsman, the resident has explained:
1. That she has since been diagnosed with cancer and believes the handling of the anti-social behaviour has been a cause of this.
2. The landlord ignored the corroboratory evidence from other residents in the block.
3. She had not wanted to move home but had felt compelled to because of the neighbour’s behaviour. Had she not moved, something worse could have developed between her and the neighbour. In moving home, the resident believes she has been forced to downsize. The resident informed the Ombudsman that she spent a significant number of years at the property and had never wanted to move.
4. The landlord discriminated against her.
5. The resident is seeking compensation for the landlord’s handling of the matter. She states she has spoken to her solicitor and believes the landlord has infringed upon its equality duties.

Assessment and findings

Landlords are not generally responsible for the acts of their tenants unless they authorise or adopt the behaviour complained of. When the Ombudsman investigates complaints like this one, we consider whether the landlord followed its policies and procedures or failed in some material respect which allowed the antisocial behaviour to continue.
The Anti-social Behaviour Crime and Policing Act 2014, and the associated guidance, set out the powers of the police and the landlord, as well as its powers in its capacity as a council. It encourages joint working between landlords and the police. Before landlords evoke legal powers, landlords will be expected to attempt to resolve neighbour disputes informally.
Landlords have the power to apply for an injunction or possession. Injunctions and possession orders are made by the court. Therefore, in order to be successful in obtaining a court order, the landlord would be required to show that:
1. The behaviour complained of existed and amounted to a nuisance or anti-social behaviour (or a breach of tenancy terms); and
2. That the landlord had attempted non-legal methods to resolve the alleged behaviour; and
3. That unless the injunction or possession was obtained, the behaviour was unlikely to be abated.
The Ombudsman expects landlords to be impartial when considering reports of anti-social behaviour and display a reasonable degree of scepticism about the evidence presented by the parties. That is not to say putting unreasonable evidential burdens on victims will be acceptable, but landlords must subject the evidence presented to some level of scrutiny.
When the resident reported the noise nuisance, the landlord liaised with the police and reviewed the evidence available. There is no evidence to demonstrate that it could have applied for possession or an injunction against the neighbour. This is because the landlord had a reasonably held belief that the evidence made available to it would not withstand the scrutiny of the legal process.
To be specific some of the noise complained of related to children making noise in the property. That would not be an unreasonable use of the home as children make noise. Furthermore, the landlord had concerns about the veracity of the audio recordings and the police documents indicated some of the reports appeared to be malicious. To add to this, one of the other residents suggested the noise was not coming from the neighbour, but elsewhere in the block. There is no evidence that the resident’s witnesses (other residents in the block) corroborated the behaviour complained of. Lastly, the environmental health team did not witness any noise when they were called to the resident’s premises. This would substantially undermine the landlord’s case (if any) against the neighbour.
The landlord did make a referral for mediation, but this was abandoned based on the resident’s vulnerabilities and she was referred to the tenancy sustainment officers for assistance. Whilst this was not unreasonable in the circumstances, it is not entirely clear that the landlord and tenants could not proceed with shuttle mediation with additional support for the resident in place. It is not clear if this would have resolved the issues, in any event.
The landlord liaised with the police and tried to obtain corroboratory evidence from the residents in the block. That was a reasonable course of action.
There is no evidence that the landlord authorised or adopted any noise nuisance being caused by the neighbours. On the contrary, the evidence shows it wrote to the neighbour and the other residents in the block to remind them of their obligations under the tenancy. Even though the landlord did not have robust evidence to substantiate the complaints about the neighbour, it still sent warning letters to them. Whilst the Ombudsman questions whether the landlord had grounds to send these warnings, it did so nevertheless, to try to resolve the issues for the resident.
When tensions mounted and the resident and the neighbour interacted outside their homes, the landlord fully considered the police reports. This was appropriate.
Overall, there is no evidence to say that the landlord authorised or adopted the neighbour’s behaviour, or that the landlord failed in some material respect that meant it should fairly be responsible for any distress and inconvenience caused. That means I do not consider the landlord to be responsible to pay compensation.
I have carefully considered the resident’s specific grounds of complaint which I shall address here

The resident’s conditions and cancer diagnosis

It is accepted that the resident had a variety of complex needs. It is also accepted that she could not engage in treatment due to her reports of anti-social behaviour.
There is no evidence, however, that the landlord exacerbated the resident’s pre-existing conditions. This is because the Ombudsman has not found that the landlord failed to take appropriate action. It took the action that was open to it to take at that time, based on its appraisal of the evidence. Even if the landlord had failed in some material respect, there is no medical evidence, from an independent medical professional, to confirm that the later diagnosis or exacerbation of the pre-existing conditions were in fact caused by the landlord’s failures.
It is for these reasons, despite the Ombudsman’s natural sympathy for the resident’s circumstances, we are unable to say the landlord is responsible to pay compensation for injury or the resident’s diagnosis.

Did the landlord ignore corroboratory evidence from other residents within the block?

The resident has provided a video recording taken by another resident in their home. The resident also explained that other residents made diary entries and filed those with the landlord.
On reviewing the video footage, the Ombudsman is not able to say where the recording was taken, or where the noise is coming from. Whilst we have no reason to disbelieve it was recorded in the neighbour’s home, that video of itself does not demonstrate there was an actionable cause against the alleged perpetrator. Moreover, the landlord has not produced diary sheets made by the resident or any of the neighbours and only makes brief reference to one neighbour referring to noise from the same property reported by the resident.
Neither the landlord nor the resident produced evidence from neighbours showing an ongoing level of noise resulting from a property being used unreasonably or unlawfully, or in any way that could be described as anti-social. For the most part, the reports were about general household noise, such as children, moving furniture, doorbells ringing and food processors. Even if the other neighbours had corroborated this, that would not have been enough to have taken formal legal action, unless the behaviour could be shown to be done purposefully to cause distress.

Was the resident forced to move home?

I have carefully considered the resident’s point that she did not want to move home but felt that she had to. However, the relevant evidence shows that the resident had applied to move home in 2017. This was prior to the complaints against the neighbour in March 2020. The resident further states that she was forced to downsize her home. However, the Housing Ombudsman is not able to consider the resident’s priority for a two-bedroom home. This is because that was the council’s decision acting under Part 6 of the Housing Act 1996 and its allocations policy. As already set out, this is not a housing activity for the purposes in the Housing Ombudsman Scheme.

Discrimination

Section 114(1) of the Equality Act 2010 states that it is for the court to determine and declare there has been discrimination. This service may, however, assess whether the landlord failed to consider its legal obligations under the Act.
In this case, the landlord recognised that the resident could not engage in mediation and referred her case to its tenancy sustainment team. That team liaised with the resident about her concerns. It worked with her to assist her move home. There is no evidence that the resident was put to a substantial disadvantage in being able to access the landlord’s anti-social behaviour services.

The complaint procedure

The resident raised a complaint about the landlord’s handling of the anti-social behaviour on 21 September 2020. However, the landlord did not respond until 7 January 2021. The Ombudsman’s Complaint Handling Code requires landlords to respond at stage one within ten working days. If landlords are not able to make this deadline, they should keep residents updated. In this instance, there is no evidence the landlord updated the resident. This was a failure by the landlord.
The resident escalated the complaint on 8 January 2021 and the landlord responded on 4 March 2021. The landlord had 20 working days to respond. It could extend this but had to update the resident. There is no evidence it updated the resident with when it would respond to the complaint. Moreover, the complaint response said it could not investigate issues of anti-social behaviour in the complaint procedure. This meant the resident waited two months for a response which did not assess the landlord’s handling of the anti-social behaviour. This was not appropriate and a failure by the landlord.
The resident asked for a final response on 12 March 2021, and the landlord responded on 12 July 2021 – some 4 months later.
Taken together the landlord was responsible for maladministration in its complaint handling. The complaint responses were significantly delayed which caused the resident to distrust the landlord and its handling of the anti-social behaviour.

Determination

I have determined that:
1. In accordance with paragraph 52 of the Scheme there was no maladministration by the landlord in its handling of the anti-social behaviour.
2. In accordance with paragraph 52 of the Scheme, the landlord was responsible for maladministration in the way it handled the resident’s complaint.

Orders and recommendations

The Ombudsman orders the landlord to, within 28 days of the date of this determination (no later than 6 October 2023):
1. Pay the resident £300 compensation for the poor complaint handling
2. Apologise to the resident for the poor complaint handling
3. Provide the Ombudsman with its strategy on how it intends to reduce complaint response timescales.
The landlord must provide evidence to the Ombudsman that it has complied with these orders no later than 6 October 2023.