Lewisham Council (202206608)

REPORT

COMPLAINT 202206608

Lewisham Council

24 June 2024

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 follow 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 handling of the resident’s reports of:
1. Antisocial behaviour (ASB).
2. loud music from the neighbour above.
3. An unsecured communal door.
The Ombudsman also investigated the landlord’s handling of the associated complaint.

Background

The resident holds a secure tenancy on a 1-bedroom flat on the ground floor of a residential block owned by the local authority landlord. The tenancy agreement began on 1 March 2021. The landlord’s records show the resident is ‘vulnerable’ due to his mental health and chronic obstructive pulmonary disease, sleep apnoea, diabetes, and arthritis.
On 7 April 2022, the resident reported that 2 men had entered the block of flats and broke into a neighbour’s property earlier that morning. This was the second break-in to the neighbour’s property since February 2022. He said the security of the block was compromised because the communal door locking mechanism was not operational. He also said that the neighbour was playing loud music at unsociable hours and that he had caused intimidation by kicking the resident’s front door and shouting abuse. The landlord contacted the police on 8 April 2022 and asked whether the police had information about the neighbour or the property. The police advised that it had investigated the incident from February 2022, but no further action would be taken and that it had no additional information to share.
The landlord visited the resident’s home on 14 April 2022 and said that it needed evidence before it could take action against the neighbour and that the neighbour could access its noise app or use the independent witness service. The resident said he did not want the app on his phone and was reluctant to use the witness service. After the visit, the landlord spoke with the neighbour and requested that he be considerate of other residents by lowering the volume of the music. The resident formally complained to the landlord in May 2022 and said he had rung the landlord’s ASB team “at least 10 times” and reported loud music playing for hours until late at night. He said there was another break-in attempt and increased activity of people in and out of the resident’s block of flats. The landlord served a warning letter to the neighbour on 20 May 2022.
In June 2022, the resident told the landlord of an altercation between him and the neighbour. He stated that the police had been called to the property again. The police later described the incident to the landlord as “an aggravated racial harassment” against the resident. However, it advised that there was insufficient evidence to take the case further. The police said it had only 1 anonymous report of drug activity in the building but no further information and that it would not take further action at this stage. The landlord inspected the block of flats on 11 August, and the neighbour was served with a further warning letter on 12 August 2022.
The resident contacted this service on 1 July 2022 and said he did not receive a response to his stage 1 complaint from May 2022. This service contacted the landlord and asked it to respond.
The landlord sent its stage 1 response on 10 August 2022 and said:
1. It had opened an ASB case and had already served the neighbour a warning letter. It would take all necessary and proportionate steps against the neighbour; however, it needed evidence.
2. It had asked that colleagues repair the communal doors as soon as possible.
The resident escalated his complaint to stage 2 on 23 August 2022 and said:
1. The communal door was still broken.
2. The neighbour above was “making his life a living hell”.
3. The landlord had warned the neighbour twice, and the police visited 3 times, but the disruption continued.
The resident started using the noise app in November 2022. The landlord reviewed the evidence and agreed that the noise was excessive, although it was mostly before 11 p.m. Therefore, it invited the parties for mediation in January 2023. However, both the parties refused. It served the neighbour with a further warning letter in February 2023. In May 2023, it informed the resident that the noise nuisance had not been loud enough, late enough, or regular enough to take further action.
The landlord responded to the resident with its final complaint response letter on 6 June 2023 and said:
1. Initially, the noise reports were treated as a nuisance, not ASB. At an early stage, the landlord visited both properties and asked the police for information before issuing a warning letter to the neighbour.
2. The resident did not agree to use the noise app until November 2022, and the landlord could not have taken further action without evidence.
3. Its third warning letter (to the neighbour) from February 2023 resulted in improvement.
4. It had arranged further mediation and would continue to monitor.
5. It should have repaired the door earlier and would do so without further delay. It offered the resident £500 in compensation for the distress and inconvenience caused by the delay in repairing the door.
The resident escalated his complaint to this service in July 2023. He advised this service in June 2024 that the neighbour had since passed away. The communal door had been repaired shortly after the final response letter and has been in good working order since then.

Assessment and findings

Scope of investigation

This Service acknowledges this was a difficult situation for the resident and recognises that the issues reported to the landlord have caused him significant distress. The Ombudsman’s role is to assess the appropriateness and adequacy of the landlord’s actions in responding to reports of ASB and noise and the fairness and reasonableness of its response to the formal complaint. This does not include establishing whether a party was responsible for ASB; therefore, our investigation will consider 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.

Policies and procedures

The landlord’s ASB policy says that the causes and effects of ASB are wide-ranging and varied, so the ways it tackles ASB will also vary. The tools used generally fall into 3 main types of activity: prevention, support, and enforcement.
The landlord divides ASB into two categories: A and B. Category A includes hate crime and behaviour causing physical harm. The landlord will respond to these cases within 24 hours. Category B includes threatening behaviour and noise nuisance. The landlord will respond to these reports within 3 days.
Noise under the statutory limit will only be considered ASB if it is persistent, occurs regularly, and continues for long enough to make it unreasonable. It is not enough for the noise to be annoying or disturbing. Noise will normally be initially investigated as a nuisance. In cases where the noise is not ASB, the landlord will take steps to try to resolve the situation but states it is unlikely it will be able to take a tenancy enforcement action. It would, however, consider contacting the neighbour to discuss the complaint, mediation, or asking the parties to sign a good neighbour agreement.
The tenancy agreement says residents must not engage in antisocial behaviour which may cause harassment, nuisance, or annoyance to other people in the neighbourhood. Antisocial behaviour includes (but is not limited to):
1. Playing loud music.
2. Letting strangers into communal blocks.
3. Using the premises for illegal purposes.
4. Using or threatening, offensive language or violence

The landlord’s handling of the resident’s reports of ASB

When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles, which include treating people fairly, following fair processes, putting things right, and learning from outcomes. The Ombudsman must first consider whether a failure on the landlord’s part occurred and, if so, whether this adversely affected or caused detriment to the resident. If a failure by the landlord adversely affected the resident, the investigation will then consider whether the landlord took enough action to ‘put things right’ and learn from the outcome.
The ASB, Crime and Policing Act (2014) defines ASB as conduct that has caused or is likely to cause housing-related harassment, alarm or distress, nuisance, or annoyance. The Act’s statutory guidance says the starting point of a case-management approach should be an action plan and a vulnerability risk assessment. This is also reflected in the landlord’s ASB policy, which says it would agree on an action plan for every case and be clear about what actions it could take. It also says that an action plan includes a vulnerability risk assessment, which would be reviewed as the case progressed.
In February 2022, the resident reported to the landlord that the police had visited the property following a stranger entering the block and kicking the neighbour’s door down. He said there was an increased amount of people entering and leaving the neighbour’s property. According to the landlord’s ASB policy, it should have responded within 3 days. There is no evidence that the landlord acted on this report until 4 April 2022, when he phoned the resident. The delay was not appropriate.
According to its ASB policy, the landlord was required to form an action plan and conduct a risk assessment, considering the vulnerabilities of both of its residents involved. There is no evidence that the landlord formed an action plan as required under its ASB policy, which was inappropriate.
On 7 April 2022, the resident reported a further break-in at the neighbour’s property. He also said that the neighbour was playing loud music at unsociable hours and that he had caused intimidation by kicking the resident’s front door and shouting abuse. The landlord tried to contact the neighbour within 3 working days on 12 April 2022 but did not have the correct phone number. It visited both properties on 13 April 2022.
The landlord attempted to speak with the neighbour on 13 April 2022 however, the neighbour declined to engage with the landlord in person and declined to give the landlord his phone number. There is evidence that the neighbour became increasingly hostile with the landlord. In June 2022, the resident reported to the landlord that an altercation between him and the neighbour had resulted in the police being called to his neighbour’s property again. This marked an escalation point in the dispute, as the resident alleged that the neighbour racially abused him. However, the landlord liaised with the police within 24 hours on 21 June 2022, and it informed the resident later that day that it was waiting on information from the police. The landlord acted appropriately here.
The landlord also sent a letter to all residents in the block advising them how to report ASB and noise nuisance. The letter resulted in a couple of residents coming forward, although they wanted to stay anonymous and said they would not provide evidence against the neighbour. Meanwhile, the police also said they had no evidence or information for the landlord and that it would take no further action against the neighbour. The lack of evidence meant that the actions the landlord could have taken were limited.
However, following the initial delay, the landlord took reasonable steps that were proportionate to the evidence available at that time. It served the neighbour with a first warning letter in May 2022, and it served a letter to all residents explaining the action the landlord would take. It liaised with the police, and it raised repeated requests to colleagues, asking the landlord to repair the communal door several times.
The landlord inspected the building on 11 August 2022 and attempted to speak with the neighbour; however, the housing officer reported that the neighbour had lost his temper and refused to engage with the landlord. The neighbour was served with a second warning letter on 12 August 2022, which was about “noise nuisance, drug activity from the property, and misuse of communal areas”. The landlord said all of these were breaches of the tenancy agreement and that it would collaborate with the police to investigate the matter further. The landlord acted appropriately here.
The landlord received no further ASB reports for a few weeks after the letter was sent to the neighbour. The landlord had pre-planned a home visit to the resident’s home on 18 October 2022. The housing officer ended the visit after a short while as they stated that the resident became aggressive, making them feel unsafe. It was reasonable that the visit was terminated under the circumstances. There were no further ASB reports at that time.
On 8 November 2022, the police informed the landlord that there was insufficient evidence to justify further action against the neighbour. The landlord reviewed the case and informed the resident in November 2022 that it would close the ASB case. This was a reasonable decision. Cases where there is a history of ASB reports over an extended period, such as this, can be challenging for a landlord to manage. In practice, the options available to a landlord to resolve a case may be limited, and it therefore becomes difficult to manage expectations. In such instances, closing a case after following the ASB procedures and considering the options available is reasonable, even if the resolution is not the outcome desired by the resident.
In January 2023, the landlord again received multiple reports concerning the neighbour’s behaviour. The housing officer visited the property on 30 January 2023 and noticed several other issues, such as a stolen bike in the communal stairs outside the neighbour’s property and rubbish bins left in the communal hallway. On 16 February 2023, the landlord served a final warning letter to the neighbour, advising that it would seek possession of the property if there was no improvement. This was appropriate, showing that the landlord took a balanced, measured response and was resolution focused. There were no further reports related to ASB, and the case was closed on 8 November 2023.
Overall, the landlord did not act early to prevent the dispute from escalating. There is no evidence it had an action plan or risk assessment to support both of its residents. This was a service failure by the landlord. Although the landlord later took proportionate enforcement action, its initial delayed response damaged its relationship with the resident.

The landlord’s handling of the resident’s reports of loud music from the neighbour above

The resident reported that his neighbour played loud music almost every night. The landlord’s ASB policy says it would initially treat noise complaints as a nuisance. The policy says noise under the statutory limit will only be considered ASB if it is persistent, occurs regularly, and continues long enough. The policy says It is not enough for noise to be annoying or disturbing to be considered an ASB. In cases where a noise did not reach the threshold of ASB, the landlord would try to resolve the situation. However, it is “unlikely it could take enforcement action against noise below the threshold to be considered ASB”.
The resident first reported the loud music on 4 April 2022. The landlord responded on 7 April 2022, within the 3-day target response plan set in its ASB policy. The landlord opened a noise nuisance case, which was managed by its housing team in collaboration with the ASB team. The policy says that upon receiving noise nuisance reports, the landlord would, if appropriate, speak with the neighbour, offer mediation, or ask the parties to sign a good neighbour agreement. The landlord acted reasonably as:
1. It explained to the resident that robust evidence was needed before it could take any action. To facilitate evidence gathering, it offered all residents:
  1. Access to the landlord’s noise app. However, the resident did not want to install the app on his phone.
  2. the use of the independent witness service on Friday and Saturday nights. However, the resident was reluctant to have visitors at night.
  3. The resident was advised to complete a daily sheet to record events. It is unclear whether the resident completed these.
2. It offered mediation, but both parties declined the offer.
3. On 14 April 2022, it visited the resident and his neighbour. It informed the neighbour of the impact of his behaviour on the resident and asked that the volume of the music be lowered. This was reasonable and in accordance with the landlord’s policy.
4. In response to the continuing reports, it issued the neighbour a written warning in May 2022. A second warning letter was issued in August 2022, about ASB including noise nuisance. This was appropriate.
In the absence of evidence, the landlord was limited in what action it could take against the neighbour. However, the statutory guidance of the ASB Crime and Policing Act says, “victims’ welfare, safety and well-being must be the main consideration at every stage… particularly if there was a cumulative impact on the resident’s mental or physical well-being”. It would have been appropriate for the landlord to regularly monitor its action plan and assess the risk to ensure residents had access to support services and that no barriers prevented them from accessing other services, such as the independent witness service.
The resident agreed to use the noise app in November 2022. He submitted a recording via the landlord’s noise app throughout December 2022, January, February, March, and April 2023. The landlord reviewed the recordings at the end of January 2023. It acknowledged that the music was very loud, even if it did not occur after 11 pm. In collaboration with its ASB team, it sent the neighbour a further and final warning letter on 16 February 2023, advising that it would seek possession of the property if the situation did not improve. This demonstrates that the landlord was resolution-focused, escalated its response in a measured way, and followed its policy and good practice.
According to the evidence, this letter resulted in improvement. The evidence submitted by the resident indicates that the situation had improved after the final warning letter to the neighbour in February 2023.
On 18 May 2023, following a meeting with environmental health officers, it was decided that the level of music did not constitute a statutory nuisance or ASB as it was not loud enough, long enough, or regular enough that a civil injunction was a proportionate course of action. It was reasonable that the landlord confirmed to the resident that it did not have sufficient evidence for an injunction after carrying out appropriate investigations and reviewing the evidence provided. However, it stated that it would continue to support the resident with mediation and continue to listen to recordings via the noise app. This was appropriate.
On 28 May 2023, the landlord informed the resident of the decision not to take civil action against the neighbour. According to the landlord’s case notes, the resident became angry. The landlord accepted that it had misunderstood or had been misinformed as to what its action plan was, and as a result, it had given the resident false hope, for which it apologised. Evidently, the landlord did not follow its policy here as it was not clear on an action plan or the actions it would take, which caused the resident disappointment. This was a service failure.
Overall, from April 2022 until November 2022, the landlord did not have evidence to corroborate the resident’s noise reports. Following the resident’s submission of evidence and, subsequently, the third warning letter in February 2023, there was a measurable improvement. The landlord’s shortcomings were the failure to set out a clear action plan and risk assessment in accordance with its ASB policy. In this case, this resulted in the mismanagement of the resident’s expectations. More broadly, there is a learning point here for the landlord to ensure it assesses the risks and offers the appropriate support to its residents in every case. If a risk is not assessed, it cannot be mitigated.

The landlord’s handling of the resident’s reports of an unsecured communal door

Under the Landlord and Tenant Act, the landlord is obliged to keep the building’s structure, including the doors and windows, in repair and in good working order.
Under the Housing Health and Safety Rating Systems (HHSRS), landlords are responsible for identifying and minimising hazards in their rented properties. Entry by intruders is one of the hazards identified by HHSRS. According to HHSRS, the impact of unsecured dwellings can include mental harm, stress, and anguish.
The landlord’s repairs policy says it will “ensure its neighbourhoods remain safe and secure.” Under the policy, communal doors that cannot close are considered ‘urgent’ and will be repaired on the next working day, although this may be extended if spare parts are unavailable.
In its final complaint response letter, the landlord accepted that the communal door had not been working since “at least” April 2022, when the housing officer had raised the repair. It acknowledged that despite repeated requests from the landlord’s ASB and housing team to repair the door, it was still not repaired. The landlord recognised in its complaint response that this was not appropriate.
The landlord also recognised that the delay in repairing the door was unjustified, even when considering spare parts and labour delays. It said that it had failed to act on this issue with the urgency that the situation required, which it recognised had caused distress and inconvenience to the resident and likely aggravated the security situation at the time.
To put things right, it said it would repair the door “without further delay”. In recognition of the distress and inconvenience caused, it offered the resident £500 in compensation, which the resident accepted. While the landlord’s compensation was reasonable, the landlord provided no indication that it had identified the reason for the significant delay. There was no meaningful investigation by the landlord; therefore, there is no indication that it learned from the outcome. Therefore, the landlord did not follow the Ombudsman dispute resolution principles. This was not appropriate.
In all the circumstances of the case, the landlord’s offer of compensation was proportionate to the detriment caused to the resident. The Ombudsman does not seek to penalise landlords for things that have gone wrong. Instead, the Ombudsman is focused on learning. Orders have been made below for the landlord to identify what has gone wrong with this repair and what it would do in the future to ensure better oversight of contractors’ performance and with the way it communicates any delays to affected parties.

The landlord’s handling of the resident’s associated complaint

The landlord’s complaint policy defines a complaint as any expression of dissatisfaction with its staff or the services it delivers. The landlord has 3 stages to the complaint process:
1. At stage 1, a service manager will respond within 10 working days.
2. At stage 2, a corporate manager or head of service will respond within 20 working days.
3. At stage 3, an adjudicator will respond within 20 working days.
The resident raised its stage 1 complaint on 15 May 2022. He chased the landlord to respond on 10 June 2022 and was advised that a manager was still working on the response. He contacted this service for assistance on 1 July 2022. This service contacted the landlord on 5 July 2022 and asked it to respond to the resident. The landlord responded on 10 August 2022, 60 working days after the resident raised his stage 1 complaint.
The resident escalated the complaint to stage 2 on 23 August 2022; the landlord responded 63 working days later on 21 November 2022.
The resident escalated his complaint to stage 3 on 16 January 2023 in person at the landlord’s office, with all the evidence he had gathered on the case. The landlord’s records confirmed the envelope was delivered. However, it went missing. The landlord was unable to explain what happened to the envelope. There was a further delay as the stage 3 adjudicator was unaware that the resident had submitted the evidence. As a result, the landlord’s stage 3 response was sent 97 working days later, on 6 June 2023. Overall, the landlord’s responses delayed the resident by 173 working days (excluding the 50 working days it was entitled to work on its responses). This was not appropriate and amounted to maladministration.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlords in its handling of the resident’s reports of antisocial behaviour (ASB).
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlords in its handling of the resident’s reports of loud music from the neighbour above.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the resident’s reports of unsecured communal door.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of the associated complaint.

Orders

Within 4 weeks from the day of this report, the landlord must complete the orders below, providing evidence of compliance with this service:
1. Write to the resident with a letter of apology in line with this service’s remedies guidance.
2. Pay the resident an additional £350 for the distress and inconvenience caused broken down as follows:
  1. £100 for the distress caused by its handling of the resident’s reports of ASB.
  2. £100 for the distress caused by its handling of the resident’s reports of loud music.
  3. £150 for the distress caused by its handling of the associated complaint.
The landlord must conduct a case review to identify the reason for the failure identified in this report, and it must set out the measures it would need to take to avoid repeating these mistakes and to learn from the outcome. As part of its review, the landlord must:
1. Familiarise itself with the Ombudsman’s spotlight report on noise complaints (2023). The landlord should identify why it did not carry out an action plan or risk assessment and failed to take early action in an attempt to de-escalate the dispute. The landlord should consider whether it would benefit from adopting some of the report’s recommendations. The rationale must be explained in its review.
2. Familiarise itself with the Ombudsman’s Spotlight Report on Knowledge and Information Management (2023). The landlord must establish the reasons it lost evidence it had received from the resident and set out the actions it has taken or would need to take to prevent this issue from reoccurring.
3. Familiarise itself with the Ombudsman’s Spotlight Report on Repairs (2019). The landlord must identify what went wrong with the communal door repair and what it would do in the future to ensure better oversight of contractors’ performance and communication of any delays to affected parties.