Birmingham City Council (202203547)

REPORT

COMPLAINT 202203547

Birmingham City Council

24 July 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 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 handling of:
1. The resident’s reports of anti-social behaviour (ASB) from the neighbour.
2. The associated complaint.

Background

The resident holds a secure tenancy at the property, a 1 bedroom bungalow. The tenancy commenced in 2020.
The resident has told this Service that he first experienced noise from the neighbour’s dog barking in August 2021. The resident made attempts to resolve the situation directly with the neighbour however was unsuccessful. The resident reported the noise to the landlord in January 2022. From January 2022 onwards the resident reported multiple instances of noise nuisance, verbal abuse and threats of violence from the neighbour. The ASB continued from February 2022 to May 2022 and the neighbour made counter-allegations of noise nuisance and harassment against the resident. The landlord suggested mediation, issued the neighbour with warnings and the police issued a Community Resolution Order.
The resident complained to the landlord on 3 October 2022 by way of a letter to the CEO. He was unhappy with the way the landlord had handled his reports of ASB and felt there had been no action taken. The landlord responded at stage 1 on 13 December 2022 and outlined the actions it had taken. It suggested using mediation or a Good Neighbour Agreement as a method of moving forward positively. The resident was unhappy with the landlord’s response and requested an escalation to stage 2 on 13 December 2022. He said he thought the landlord had acted unfairly and disagreed with the landlord’s findings.
The landlord sent its stage 2 response to the resident on 21 March 2023. It apologised for the delayed response and urged the resident to reconsider mediation or the Good Neighbour Agreement to help resolve the matter. The landlord also clarified its processes when handling the counter-allegations made about the resident and how the noise app worked. The landlord noted that it had offered for a senior manager to meet jointly with the resident and the police to discuss a way forward, but the resident had declined.
The resident remained dissatisfied with the landlord’s response and referred the matter to this Service. In referring the matter he said the landlord had not done anything to resolve the issues and he felt the landlord’s suggestion of a Good Neighbour Agreement was blackmail and an infringement of his human rights.
It is noted that after exhausting the landlord’s internal complaint process the resident also sought legal advice from a solicitor and contacted his MP for assistance with the matter. The resident then moved out of the property in August 2023. He informed this Service that the main reason for moving out was because of the ongoing ASB. Though these events occurred after the complaint was closed they may be mentioned in the assessment for additional context.

Assessment and findings

Scope of the investigation.

In his complaint to the landlord and in communication with this Service, the resident has explained he felt the landlord had discriminated against him based on his sex. He felt that some of the actions and proposed solutions offered by the landlord infringed on his human rights. It is not for this Service to establish whether a breach of human rights or discrimination has occurred, which would be a matter for the courts, rather it is to assess if the landlord had due regard for the resident’s rights and if it responded to the allegations appropriately.

The resident’s reports of ASB from the neighbour.

It is evident that this situation has been distressing for the resident. It may help to first clarify that the purpose of this investigation is not to establish whether or not the ASB occurred. Rather, it is to determine whether the landlord acted fairly and reasonably in its handling of the resident’s reports of ASB.
The resident has informed this Service that there were further incidents of ASB from the neighbour after the complaint was brought to the landlord. Though it is appreciated that this would have been distressing for the resident, the Ombudsman’s role is to investigate complaints brought to it that have exhausted a landlord’s internal complaints process. This investigation report, therefore, concerns the matters which were the subject of the resident’s formal complaint in October 2022 and which were the subject of the landlord’s final response dated 21 March 2023.
The landlord’s ASB policy says upon receipt of a report of ASB, the landlord will:
1. Record all ASB complaints on an electronic case management system.
2. Upload all supporting documentation onto this system.
3. Interview the complainant.
4. Agree an action plan with the complainant and confirm this in writing.
5. Provide diary incident books to the complainant and agree how often they will be reviewed.
6. Interview the alleged perpetrator and any witnesses. All interviews should be recorded in writing.
7. Contact other agencies to establish their involvement, such as the police or local authority.
8. Consider the use of noise monitoring equipment, which is provided by the local authority.
9. Consider interventions such as mediation, restorative justice, acceptable behaviour contracts and Good Neighbour Agreements.
10. Offer referrals to relevant support services.
11. Ensure any warnings issues are confirmed in writing to the alleged perpetrator.
12. Monitor the complaint and update the complainant regularly.
13. Consult the complainant prior to closing the case and explain the reasons for doing so. All closures should be confirmed in writing including a summary of the actions taken to resolve the complaint.
In response to the reports of ASB and the formal complaint the evidence shows that the landlord:
1. Opened an ASB case and provided a case reference number to the resident in a timely manner, for both the noise nuisance and harassment complaints.
2. Contacted the resident to discuss the case and advise on the ASB process.
3. Interviewed the neighbour with regards to the allegations.
4. Visited the resident to assess the noise nuisance in person.
5. Made a referral on behalf of the resident to the noise team within Environmental Health enabling noise monitoring equipment to be used.
6. Followed up with Environmental Health regularly for an update on the case.
7. Regularly reviewed the case internally to confirm it was satisfied with the actions taken to date.
8. Issued an action plan to the resident and sought agreement from the resident with regards to the actions proposed.
9. Issued verbal and written warnings to the neighbour.
10. Provided diary sheets to the resident.
11. Suggested the use of the Noise App and explained how this worked. The resident declined to use this after testing it.
12. Took part in a Community Trigger review and followed through on the actions proposed.
13. Made referrals to relevant support services, such as adult social care, on request of the resident.
14. Requested police disclosure to consider tenancy action against the neighbour.
15. Offered mediation to the resident and enclosed information about how the service worked.
16. Suggested a Good Neighbour Agreement. The resident declined this offer.
17. Sent survey letters to neighbouring properties for additional witnesses.
18. Closed the ASB case for noise nuisance in April 2022 and confirmed in writing this was due to a lack of evidence. It confirmed the harassment case remained open.
19. Kept the harassment case open and up to date with any new reports.
20. Offered to meet with the resident jointly with the police at a neutral location.
The ASB case was closed on 14 April 2022 and the landlord confirmed in writing that because the resident would not consider mediation and had not provided evidence of the noise nuisance by means of the Noise App, it was not in a position to progress the case further. There were no further reports of ASB after 13 May 2022 until the resident’s complaint was received in October 2022.
The landlord’s actions set out in the previous paragraphs were an appropriate response to the resident’s allegations of ASB. However the steps were not all taken in a timely manner as outlined below.
The resident first reported the noise nuisance from the neighbour on 7 January 2022 and continued to report multiple further incidents of noise and verbal abuse in February, March and April 2022. This included one incident where the resident had to call the police because of a threat of violence from the neighbour. The evidence shows the landlord had organised a visit to the resident in January 2022 but it later cancelled the visit as it awaited advice from Environmental Health. The landlord first visited the resident on 28 April 2022 which is an unreasonable time after the first report of ASB, especially given the number of reports and the severity of some of the reports.
The resident raised in his escalation request that the landlord had visited the neighbour before it had visited him. This led to him feeling that the landlord was treating him differently to the neighbour and he felt this was unfair and discriminatory. The landlord failed to address this in its stage 2 response and said the COVID-19 pandemic had caused the delay to his visit. The landlord acted unreasonably in failing to address the resident’s concerns around discrimination and the landlord missed the opportunity to fully explain or apologise for this. This is a service failure.
In its stage 1 response the landlord suggested that a Good Neighbour Agreement be considered. The landlord confirmed that this was a voluntary arrangement and it had sought the resident’s agreement to this prior to approaching the neighbour about it. The suggested terms were:
1. To be polite and be neighbourly to each other.
2. Agree to a reasonable and acceptable approach by both parties when DIY/ projects that causes noise are to be completed.
3. To notify the landlord when there is intention to complete DIY work and the landlord will contact the other party to ascertain if this is acceptable. It is only after the landlord’s confirmation that this is acceptable to the other party that work can be undertaken.
4. To limit the impact to both parties the landlord requests both parties cease any DIY works with immediate effect until a “Good Neighbour Agreement” is signed by both parties.
The resident again mentioned that he felt the landlord’s suggestion of this agreement was discriminatory and that the solutions offered infringed his human rights. He refused the Good Neighbour Agreement as he felt the neighbour would have control over what he could or couldn’t do within his home. As explained above, it is not for this investigation to determine whether a breach of human rights occurred, rather to assess the landlord’s handling of the matter.
The landlord acted reasonably in suggesting the Good Neighbour Agreement and it is positive that it sought the resident’s agreement prior to contacting the neighbour about it. However when the resident expressed his dissatisfaction with the terms proposed within the agreement, it is unclear why the landlord did not explore alternative terms that may have been more agreeable to the resident. It is also inappropriate that the landlord only suggested the agreement in its stage 1 response of 13 December 2022 rather than in April 2022 prior to closing the original ASB case.
In both its complaint responses the landlord referred to an offer of mediation which it said the resident had refused. Confusingly, however, it also confirms in its stage 1 response that the resident did agree to mediation but only using an alias. In his escalation request of 13 December 2022 the resident said that he had participated in mediation through the landlord’s external provider Neighbour Relation Service (NRS). The resident said the mediator informed him there was nothing else he could do to assist with the resident’s situation as the neighbour was not engaging with the process. It was misleading of the landlord to have then suggested in its stage 2 response that the resident would not consider a referral to the NRS when in fact he had already done so in the months prior. If the landlord felt there was more to gain from further mediation it should have clarified what the resident could expect from the service rather than just continuing to offer it without explaining its potential value. This is a service failure.
We understand that a counter claim of noise nuisance and harassment was made, related to DIY noise. The landlord’s ASB policy says that any counter allegations should be recorded as separate complaints and investigated in due course. The landlord has failed to provide any evidence of its handling of this matter, however the resident has informed this Service that he was issued with a final warning letter by the landlord in relation to the noise nuisance allegations. The resident has informed this Service that he was never issued with a first warning. The resident felt the landlord had taken harsher action on him for noise nuisance than it had taken on his neighbour from his reports of ASB and threats of violence. In the absence of evidence this investigation is not able to draw a conclusion on this matter. However it is understandable that the resident was distressed at receiving a final warning letter and it appears that this was an inappropriate response from the landlord. The resident has informed this Service that the landlord later rescinded the final warning and issued a first warning letter in its place but that it failed to offer any apology or explanation for this.
The landlord’s compensation policy in place at the time explicitly said that the landlord should not make payments for distress and inconvenience. This is in direct conflict with the Housing Ombudsman’s Complaint Handling Code (the Code) which says that landlords must consider offers under this heading. The landlord failed to identify and compensate for the service failures outlined above as part of its complaint process and this was inappropriate.
In conclusion, the landlord took appropriate steps in accordance with its policy to resolve the ASB and made suggestions as to how to take matters forward, which the resident declined. Ultimately there was a lack of conclusive evidence of the ASB to support the landlord in taking any further formal action. Therefore it was reasonable that the landlord did not do so. That being said, the landlord failed to explore and offer all available options to resolving the ASB in a timely manner and it also failed to demonstrate that it had fully considered the resident’s allegations of discrimination in its complaint responses.
This investigation has found service failure in the landlord’s handling of the resident’s reports of ASB. We have made an order for compensation for £75 which is within the range of awards set out in our remedies guidance for instances such as this where there was a minor failure by the landlord which it did not appropriately acknowledge or put right.

The associated complaint.

The landlord’s complaint policy states it will respond to complaints in line with this Service’s Complaint Handling Code. This is to say it will respond to stage 1 complaints within 10 working days and stage 2 complaints within 20 working days. It may be helpful to first show the timeline of the complaint:
1. The resident complained to the landlord by letter on 3 October 2022. The landlord received the letter on 5 October 2022.
2. The landlord issued its stage 1 response on 13 December 2022.
3. The resident asked to escalate the complaint on 13 December 2022.
4. The landlord issued its stage 2 response on 21 March 2023.
It is inappropriate that the landlord took 10 weeks to issue its stage 1 response. It then took the landlord 14 weeks to issue its stage 2 response after the resident requested to escalate the complaint. Although the landlord did apologise for these delays, it did not make any offer of redress in recognition of this failure.
As outlined above, the landlord’s compensation policy in place at the time said that the landlord should not make payments for distress and inconvenience. This is in direct conflict with the Code which says that landlords must consider offers under this heading. The delays in issuing the complaint responses in this case are significant and it would have been appropriate, in line with this Service’s remedies guidance, for the landlord to have made an offer of compensation in recognition of this.
As well as failing to offer redress, the landlord has failed to acknowledge the potential impact its delays had on the resident, who whilst waiting for a resolution had told the landlord that he was scared to remain at home at times because of the ASB. Its delays also hindered the resident’s access to this Service which is an unfair impact on the resident.
In conclusion, the delays in issuing the complaint responses were inappropriate and it is unreasonable that the landlord failed to identify or apologise for the impact this had on the resident. It is also a failure that the landlord did not offer redress for these failings.
This investigation has found maladministration. We have made an order for compensation for £150 which is within the range of awards set out in our remedies guidance for instances such as this where there was a failure which adversely affected the resident where there was no permanent impact

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure in the landlord’s handling of the resident’s reports of ASB from the neighbour.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s handling of the associated complaint.

Orders

Within 4 weeks, the landlord is ordered to:
1. Pay the resident £225 comprising:
  1. £75 for the distress and inconvenience incurred by the resident as a result of the landlord’s failures in handling his reports of ASB from the neighbour.
  2. £150 for the distress and inconvenience incurred by the resident as a result of the landlord’s failures in handling his complaint.
2. Issue a written apology to the resident, with a copy being sent to this Service, for the failings identified in this report.

Special investigation.

The Ombudsman completed a special investigation in January 2023 into the landlord using its systemic powers under paragraph 49 of the Scheme. It found the landlord responsible for a series of significant systemic failings impacting residents. The Ombudsman required the landlord to make changes including implementing a framework for its record keeping standards, introducing an updated compensation policy and improvements around its complaint handling and governance. Some of the failings identified in this complaint mirror the issues noted by this investigation. As such, and in view of the age of this complaint, this Service does not make any wider order.