Barnet Council (202011309)

REPORT

COMPLAINT 202011309

Barnet Homes

31 March 2021

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice, or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

This complaint is about the landlord’s handling of the following issues:
1. the resident’s application for rehousing on medical grounds;
2. the resident’s reports of anti-social behaviour (ASB) by her neighbour.
The report will also address the landlord’s handling of the complaint.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 39(m) of the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction:
1. the resident’s application for re-housing on medical grounds.
Paragraph 39(m) of the Housing Ombudsman Scheme states that:
1. “the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion (…) fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body”.
The resident made an application to the local authority to be rehoused on medical grounds. This application was considered and a decision letter was issued on 23 September 2020. The decision letter confirmed that her application had been considered by the landlord acting on behalf of the local authority. It also confirmed that the application had been considered under the Housing Act 1996 Part VI and it related to the resident’s banding status for rehousing.
As the application was considered by the landlord acting on behalf of the local authority, such matters fall under the Local Government and Social Care Ombudsman’s (LGSCO) jurisdiction and not the Housing Ombudsman.
The Memorandum of Understanding between the Housing Ombudsman and the LGSCO sets out the complaints that each Ombudsman is responsible for considering. This states that the LGSCO is responsible for complaints about:
1. Housing allocations under Housing Act 1996 Part VI.
2. The assessment of such applications, the award of points, banding or a decision that the application does not qualify for reasonable preference.
As such, the complaint about the rehousing application is outside the jurisdiction of this Service to consider in accordance with paragraph 39(m) of the Scheme because such complaints fall within the jurisdiction of the LGSCO. If the resident wishes to pursue this complaint, she will need to contact the LGSCO directly.
This report will therefore only address the complaint about the handling of the ASB allegations and the landlord’s handling of the complaint.

Background

The resident has a secure tenancy with the landlord for a ground floor flat.

Policies, procedures, and agreements

Tenancy agreement:

If a tenant reports ASB, the landlord will provide ‘advice and assistance to help you resolve the situation. If we consider the incident to be serious, we will do all that we can to help and support you. We will record and investigate all reports of serious antisocial behaviour and we will visit you to tell you about any action we agree to take’.
With regards to dealing with harassment, it states that ‘we will act straight away to deal with any incidents of harassment and will always help and support you. In cases of racial harassment and most other types of harassment, one of our officers will contact you and arrange to visit you’.

ASB and Hate Crime policy:

This sets out how the landlord will deal with ASB. It states that:
1. the landlord will provide customers with advice and support and take a ‘victim-centred’ approach.
2. We recognise the importance of effective communication and will ensure that regular updates are provided to persons reporting ASB, and a clear point of contact is provided.
3. We will expect all residents to…respect other peoples’ right to their chosen lifestyle and be tolerant of everyday, reasonable level of disturbance (examples may include…children playing, babies crying, or religious practices).
4. Types of nuisance that may not be considered ASB include: ‘Day-to-day living or domestic noises that are not excessive or unreasonable, including the installation of laminate flooring where it magnifies noise; e.g. ordinary conversation heard through walls or floors, cooking smells, quiet music or religious prayers, use of medical or mobility equipment, neighbours walking around their home or moving furniture, and domestic activities such as vacuuming or using washing machines unless this is in an unreasonable manner’.
5. We will investigate ASB reports as soon as possible and will prioritise serious incidents. Following a report of ASB, an initial triage assessment, which includes an initial vulnerability assessment, will be completed. At the point of contact, an assessment will be carried out to determine if the incident is a ‘low’ or ‘high’ risk…If an incident is classified as ‘high’ risk, the individual reporting the incident may be advised to report it to the police. ‘High’ risk incidents may include hate crimes, harassment, criminal activity, violence, aggressive behaviour, and repeat victimisation.
6. A case will be closed when there are no further reports of ASB within a given period, when the issue is resolved, or when no further action can be taken.
Specifically for hate crimes, it states that it ‘will investigate all hate incidents and hate crimes. If an incident of ASB is perceived by a customer to be motivated by hate, then it will be investigated as such’.

Summary of events

The resident has provided copies of the diary sheets she completed for the landlord noting the incidents of ASB as follows.
The issues first arose in February 2020, and the diary sheets show that she spoke with the neighbour in February and March 2020 about noise disturbances and tried to resolve it amicably.
On 16 March 2020 loud banging was noted. On 21 March 2020 she said that her sleep had been disturbed due to noise from moving furniture and DIY at night. She also noted that she heard loud screaming and threats, which she took to be directed against her. Further banging and scraping on the ceiling was noted on 30 March 2020 as was another verbal threat which she felt was directed at her. The resident said that she reported the threats to the Police and to the landlord, and the Police did attend but no action was taken. The landlord has not provided any records in relation to these early reports.
Further incidents of loud noise were noted on the sheets on 17, 19, 21 and 22 April and sporadically every few days thereafter until 7 May 2020. There is no evidence of the landlord’s response to these reports.
The diary sheets show that further noise disturbance was noted by the resident throughout May 2020 including, the neighbour ‘howling’ at night and carrying out DIY at night, as well as general shouting and threats. The landlord’s response to these reports was that it was deemed to be daily household living noise and not ASB or a nuisance.
On 30 May 2020 the resident emailed the landlord to report that a mirror on her balcony had been damaged, and she thought that the neighbour had done it. She perceived this as further evidence of threatening behaviour aimed at her. The landlord acknowledged the report about the broken mirror but there is no evidence of what action it took in response.
The resident continued to complete the diary sheets and noted further incidents in June 2020 of general noise disturbance, loud talking/shouting. On 14 June 2020 the resident emailed the landlord to report ‘running in the hallway which sounds like constant banging, loud talking and slamming of doors’. The resident also contacted the Police and Social Services and requested that the landlord move her. The landlord acknowledged the report on 16 June 2020 but there is no evidence provided to show what it did in response.
On 28 June 2020 the resident reported that the neighbour had tried to run her dog over, which she saw as a direct threat against her. She also continued to complete the diary sheets throughout July 2020 and noted loud shouting and banging, and ‘child who does not live there running around and screaming. Guests leaving after midnight’. There were further similar incidents noted of DIY and vacuuming at night and the resident said that the continuous noise disturbance was affecting her child’s health.
On 30 July 2020 the resident emailed the landlord to report loud shouting and she said that she overheard her neighbour talking about her and she felt scared and called the Police. The records show that the landlord continued to treat the matter as daily living noise and told the resident that ‘we are not able to take action against household noise as we cannot stop people from carrying out their day-to-day normal activities in their homes’. The resident remained unhappy and said that the landlord had not considered all the evidence she had provided. The landlord said that it would log a formal complaint about its handling of the ASB.
On 2 August 2020 the diary sheets show sheets that she felt threatened by the neighbour’s reaction to her doing Bible studies on her balcony, reading her Bible out loud. The resident considered this to be a hate crime and said that she had reported it to the Police as such.
The landlord’s records show that the complaint was formally logged on 5 August 2020 as being about the ASB officer’s handling of the ASB reports. In particular regarding not taking her allegations seriously and not appreciating the severity of the threats and the impact on her. She also asked for permission to install CCTV and queried the neighbour’s placement of her CCTV camera.
The internal emails provided by the landlord show that it regarded the matter as a neighbour dispute and there had been allegations and counter allegations about noise and the behaviour of both tenants (including the resident filming the neighbour). It said that it had reviewed the noise recordings provided by the resident and it was satisfied that it did not constitute noise nuisance.
The landlord spoke to the resident on 5 August 2020 and the records show that it noted the threats were not made face-to-face and it said it would however review the video footage the resident had taken and it would speak to the neighbour. The officer said that he had not opened an ASB case as ‘the primary problem is domestic noise nuisance’. He had reviewed the Police involvement and they had not taken any action. As for her request to move on medical grounds, he advised the resident to make a request and they can consider it further.
The landlord issued its Stage 1 complaint response on 6 August 2020:
1. It said that the complaint was about its handling of the ASB reports and its failure to acknowledge that the resident’s family had been put in a ‘life threatening anti-social behaviour situation’.
2. It confirmed that after speaking with the resident it had decided not to open an ASB case at this stage as it was not ASB but a domestic noise case.
3. It had understood that the life-threatening issue was connected to the suitability of the property and the children’s medical needs rather than the alleged threats connected with the neighbour. However, it will review any evidence the resident has provided.
4. As the Police had not taken any further action, the landlord did not have any evidence to suggest that the issue was anything other than domestic noise. As it stood, it had noted the allegations of ‘loud conversation, dragging furniture etc’. It was not satisfied that the situation was life-threatening in respect of the behaviour of the neighbour and it was satisfied that it had acted appropriately to the issues raised.
5. It said that it would consider her request for CCTV if she provided further information, and it would also look into the neighbour’s CCTV camera. It would also discuss the noise from the laminate flooring with the neighbour to see if this can be remedied.
6. It acknowledged that there had been a relationship breakdown between the resident and the neighbour and that this can cause stress. However, it had limited options in terms of dealing with household noise. The evidence as it stands was not enough to show any breach of tenancy that required further action. Therefore, the complaint was not upheld.
On 11 August 2020 the resident reported that the neighbour was continuing to act in an intimidating manner by ‘starring at her [daughter] aggressively’. The resident also requested that her complaint be escalated to Stage 2 on 12 August.
On 15 August 2020 the resident reported loud shouting and she said she heard a threat about slapping someone so she called the Police but no action was taken. The next day the neighbour knocked on her door and warned her not to call the Police again. The resident said that the neighbour had filmed her and there was also noise nuisance: ‘a child stomping through the hallway till past 11:30’.
On 17 August 2020 the resident sent the landlord video footage to support her case about the neighbour’s threatening behaviour and verbal abuse. The landlord responded and said it would review the footage and then discuss the matter with her. The diary sheets completed at this time showed further incidents of shouting and ‘toddler who doesn’t live there is running back and forth through the hallway’.
The resident then sought assistance from her MP on 23 August 2020. She mentioned the possible hate crime incident when she was reading her Bible on her balcony and said ‘unfortunately I was not filming through Bible study and do not have evidence of this’. The MP asked the landlord to investigate.
On 26 August 2020 the resident chased the landlord for an update on her Stage 2 complaint. The landlord said that it would review the video footage and get back to her. The landlord responded to the MP on 28 August 2020 and said that it had not opened an ASB case in accordance with its ASB triage process. But it would be reviewing the matter again. It also confirmed that her complaint was being escalated to Stage 2 of its process.
The landlord’s internal correspondence on 4 September 2020 showed that a review of the case was requested by a medical officer as part of the resident’s rehousing application. The landlord was asked to confirm what investigations had been carried out and what the outcome was. The landlord responded by sending the medical officer a copy of the Stage 1 complaint response.
On 7 September 2020 the resident reported that the neighbour had damaged her car. The diary sheets completed around this time also showed that the resident had noted loud shouting in the night, scraping noises and hoovering and DIY late at night. The resident also mentioned that this was all having an impact on her daughter’s health and she said, ‘please note this child is on immune suppression a mild form of chemotherapy’. There is no evidence of the landlord’s response to these reports. The resident chased the landlord on 14 September 2020 as she felt it was not responding to any of her concerns and it had not escalated her complaint. She said that the felt ‘very unsupported and victimised by these neighbours. Nothing has been done to support us or stop the noise or behaviour from and we are left at breaking point’.
The landlord replied on 15 September 2020 and said that it could not respond to her reports without evidence, and that ‘it would not be responding to your emails unless substantial evidence can be provided’.
On 18 September 2020, Social Services contacted the landlord as they were concerned about the impact the housing situation was having on the resident’s son’s health. The resident also emailed the landlord to explain how the ongoing situation was affecting her daughter’s health. The landlord asked to meet with Social Services but this could not be arranged due to the social worker not having the authority to intervene. The social worker said that the resident just wanted to be heard and she therefore recommend that the landlord meet with her. There is no evidence that the landlord acted upon this recommendation. It did however advise social services that given the counter allegations and the lack of evidence there was not much it could do, but it would reassess the ASB triage to see if it will ‘hit the trigger to open an ASB case’.
On 28 September 2020 the resident reported the neighbour to the Police for intimidation and harassment and said that the neighbour had tried to trigger a reaction from her dog by making barking noises outside her door. She also repeated the allegation that the ASB should be seen in the context of a hate crime as she felt she was being targeted ‘by the fact of my disability and our Christian values’.
The landlord’s internal email of 2 October 2020 noted that the case did not have ‘any notes or details of an acknowledgment letter or action plan’. It was not clear to the manager if the video evidence had been reviewed or if any ASB had been established and/or addressed. It was confirmed that the officer would now review the video footage and decide what to do next and will update the resident.
The landlord’s records show that it contacted the neighbour on 8 October 2020 by telephone and email to discuss the allegations and it updated the resident. She also notified it that the Police were considering pursuing the neighbour for possible harassment charges.
The landlord issued its Stage 2 complaint response on 15 October 2020:
1. It apologised for the delay in escalating the complaint to Stage 2.
2. It had considered her comments about the life-threatening situation she said she was in and it disagreed on this point and said there was no evidence to support her conclusion.
3. It had received video footage and this was being reviewed and a decision would be made shortly. It asked the resident to stop filming the neighbour as this was aggravating the situation.
4. With regards to the noise nuisance, walking on laminate flooring, loud conversations, dragging furniture etc there was no further action it could take and it said she would need to contact the Environmental Health Team for them to consider if there is a statutory noise nuisance.
5. It said it was satisfied that the resident had been advised correctly and her case had been handled correctly ‘albeit with a delay’. It asked the resident to continue to complete the ASB diary sheets.
6. It did not uphold the complaint but it did apologise ‘for some of the delays in assessing parts of your case and responding in line with agreed timescales’. It conformed this was its final position on the matter.
On 5 November 2020 the landlord wrote to the resident to confirm the case closure. It said that due to no evidence from the Police to support that there was any risk it could not consider a management transfer. It had liaised with the neighbour and they had made counter allegations. It had reviewed the video footage and found that the resident had confronted the neighbour about noise disturbance from DIY works and both parties were at fault. The neighbour had used verbal abuse and the resident had also antagonised matters by refusing to leave and continuing to film the neighbour. The landlord therefore would issue warning letters to both parties due this and this would be the end of the case. As for the general noise disturbance it concluded that this was ‘deemed as day-to-day noise which is not statutory noise nuisance’. It had also contacted the Police and as they had no evidence to support your allegations, they were not taking any further action.

Assessment and findings

The Ombudsman’s role includes an assessment of whether the landlord has followed its procedures and acted appropriately. It is important to note that it is not the purpose of this report to investigate the allegations of ASB itself or to apportion blame on any party for any of the alleged ASB or to assess the credibility of the reports made by the resident.
It is acknowledged that the resident has said that the alleged ASB has caused her and her family distress. She has said that the level of her distress had been exacerbated not only by the nature of the alleged ASB incidents themselves, but also by, what she feels is a lack of support from the landlord. The resident has said that as a result of the landlord’s poor handling of the ASB and the distress she experienced, her family’s health was adversely impacted. Whilst this may be the case, it is beyond the remit of the Ombudsman to reasonably determine a causal link between the landlord’s actions (or lack of) and the deterioration of the resident’s health.
Both the landlord and the resident have provided documentation to enable the Ombudsman to investigate the complaint. These include copy correspondence; the landlord’s records; and the landlord’s policies and procedures. A landlord’s record keeping is a crucial aspect of its overall service delivery. Maintaining accurate and contemporaneous records assists a landlord to provide an efficient and timely service and also provide an audit trail of its decision making after the event. In this case, while the landlord has submitted its file of papers, it does not include any detailed information with regards to the earlier ASB reports.
It is noted that the resident has raised several issues about the landlord’s handling of the ASB reports, and whilst the Ombudsman will not be addressing each and every specific issue, it has carefully considered all the available evidence and it will take a view on the landlord’s overall handling.
Looking now at the landlord’s actions, it needs to be noted that the landlord’s ASB policy requires it to take a ‘victim-centred’ approach. One of the main areas of complaint is with regards to the reports of noise disturbance made by the resident against the neighbour (and the family) who lives in the flat above her. The reports have been around issues such as loud talking, shouting, and arguing; scraping and banging on the ceiling; hoovering and DIY noise late into the night. Reports have also been made about threatening behaviour that the resident has seen or overheard.
It is clear from the records that this issue has been ongoing since February 2020 and there have been numerous reports made by the resident. The diary sheets, for example, log the resident’s concerns almost on a daily basis. The resident has also provided the landlord with photos and videos of some of the alleged incidents.
Looking at the available evidence, the Ombudsman considers that there were some shortcomings in the landlord’s response to the resident’s reports. The landlord has referred to its ASB triage process, but it has not provided any evidence to show that the resident’s case was appropriately triaged and prioritised. The ASB policy does not set out a criterion for which types of cases should be categorised as High Priority. However, the landlord has not evidenced what factors it took into account and whether or not factors such as the number of reports, the references to threats and possible hate crimes, and the length of time it had been ongoing and the resident’s recorded health issues were considered. There is no evidence to show that the landlord considered the severity of the case appropriately.
It is not clear from the evidence if the landlord had an action plan for how to deal with the numerous and ongoing reports made by the resident. There is a lack of communication from the landlord in response to the various reports and it seems to have concluded early on that this was a neighbour dispute and not an ASB case. Having considered the landlord’s submissions there is no evidence of a co-ordinated plan of action or a defined process, and the resident had to chase the landlord to find out what was happening on numerous occasions and often she was not given any follow-up information. It would appear that an action plan was only put in place in early October 2020 during the Stage 2 complaint review.
The lack of communication from the landlord is most notable in regard to the incidents that were reported in February, March, and April. The limited information provided by the landlord does not adequately demonstrate what actions it had taken during this time, other than asking the resident to keep completing the ASB diary sheets.
The landlord has consistently held that the reports made by the resident were not deemed to be ASB, but rather, general household noise. There may well be an element of this in the reports, but it is also clear from the reports that the resident was reporting other issues in conjunction with the noise e.g. the threats and intimidation. There is no evidence to show that the landlord investigated these elements of the reports appropriately. Reference has been made to the ASB triage process but the ASB policy is not clear on the procedure and there is no evidence of what the landlord took into account or why the reports did not meet the required trigger to open an ASB case.
The resident was provided with ASB diary sheets to be completed, which was appropriate, but there is no evidence to show how the landlord used this information or what actions it took with the aid of this information. Again, the lack of a coherent action plan has hindered the landlord’s response, and this is a service failure.
The landlord has said that it considered the video footage provided by the resident and it did not deem this to be enough to take further action. However, it is noted that the video evidence was provided to the landlord on or around 17 August 2020 but it did not respond to this evidence until 8 October 2020, after several chasers from the resident. It also told her that it could not investigate her reports without evidence and it did not take into account the evidence that had already been submitted by the resident. This caused an unnecessary and avoidable delay in dealing with the reports.
The landlord also missed opportunities to address and review the case and potentially resolve it sooner. For instance, it was asked to review the case by a medical officer as part of the resident’s separate rehousing request. The landlord was asked to confirm what investigations had been carried out and what the outcome was. The landlord responded by sending the medical officer a copy of the Stage 1 complaint response. This was an opportunity to take stock of the situation and carry out a detailed review, but the landlord failed to make the most of this opportunity.
The landlord’s ASB policy requires the landlord to liaise with other parties, such as the Police and Environmental Health (‘EH’), and to have a co-ordinated effort to tackle ASB. The resident had provided evidence to show that she had contacted the Police and EH on several occasions in connection with the neighbour’s behaviour and she had provided CAD numbers. There is no evidence of the landlord having contacted the Police or EH in connection with the ASB reports made by the resident.
It is noted that the landlord did try and liaise with a social worker who was involved in a separate issue with the resident, which was an appropriate and positive step. However, the social worker made it clear that the resident was feeling frustrated as she was not being listened to by the landlord. This was another opportunity for the landlord to take a proactive approach but it failed to do so. Instead, the evidence shows that it did not properly take into account the resident’s concerns about the possible severity of the situation. Especially when you take into account that the resident had notified it of vulnerabilities, and her child’s serious ill health had been flagged by social services. The evidence suggests that the landlord did not do enough to investigate the reports made by the resident.
The resident made several references in her correspondence with the landlord that she felt the threating behaviour of the neighbour amounted to a hate crime and was – in her view – motivated by her religious beliefs. The evidence on file does not show that the landlord took this into account and it is not clear that it dealt with the resident’s concerns appropriately. Its policy makes it clear that ‘if an incident of ASB is perceived by a customer to be motivated by hate, then it will be investigated as such’. However, the evidence on file does not sufficiently demonstrate that the landlord did indeed investigate the reported incidents as potential hate crime.
The Ombudsman considers that there have been service failures in the landlord’s handling of the ASB reports. Looking at the matter overall, the evidence suggests that the landlord dealt with the resident’s reports as a neighbour dispute about general household noise and it failed to properly take into account the nature of the reports being made by the resident about the neighbour’s behaviour and it failed to act accordingly to investigate all the issues raised by the resident.
The Ombudsman’s approach to compensation is based upon our Dispute Resolution Principles (be fair, put things right and learn from outcomes) and our Remedies Guidance which set out the general approach. In this particular case, having considered the available evidence, compensation for distress and inconvenience is warranted for the service failures identified in the landlord’s handling of the ASB reports.

Complaint handling

The landlord’s policy sets out that it has a two-stage process. It is required to issue its Stage 1 response within 10 working days. Once the complaint is escalated, it must acknowledge the Stage 2 complaint within two working days and issue its Stage 2 response within 10 working days of receipt of the complaint.
The landlord issued its Stage 1 response one day after the complaint had been formally logged on its system. There is no evidence that the complaint was investigated thoroughly prior to this response being issued. It is noted that the landlord acted swiftly, but perhaps it issued its response prematurely in this instance as it has not evidenced what investigations were carried out.
The resident requested that the complaint be escalated on 12 August 2020. This was appropriately acknowledged by the landlord and there was a considerable delay in both escalating the complaint and issuing the Stage 2 response. The landlord has apologised for the delay, but it has failed to consider if compensation is warranted given that the delay was around nine weeks, which was far in excess of its complaint handling timeframes. Overall, the landlord’s apology was not proportionate to the service failure.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its handling of the resident’s reports of anti-social behaviour (ASB) by her neighbour.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its complaint handling.

Reasons

With regards to the ASB reports, there were shortcomings in the landlord’s response in its understanding of the reports and the nature of the threats reported by the resident. It failed to properly take into account the nature of the reports being made by the resident about the neighbour’s behaviour and it failed to act accordingly to address this aspect of the reports. Its investigations were limited and were not carried out in a timely manner and it did not act in accordance with its ASB policy and it failed to respond in a ‘victim-centred’ manner as required to do so by its ASB policy.
With regards to the complaint handling, the landlord failed to act appropriately and in line with its complaints procedure. The Ombudsman is satisfied that the landlord failed to escalate the complaint in line with its complaint procedure and unnecessarily delayed the completion of its internal complaint process.

Orders

The landlord should, within four weeks of the date of this report:
1. Pay the resident £250 for the distress and inconvenience caused by the service failures identified with its handling of the ASB reports.
2. Pay the resident £100 compensation for any distress and inconvenience caused by the service failure identified with its handling of the complaint.
Evidence of the payment of compensation to be provided to this Service within four weeks.

Recommendations

The landlord to ensure that that it maintains a clear record of all ASB reports and the actions taken in response to each report and its decision-making at the triage stage.