Brighton and Hove City Council (202325482)

REPORT

COMPLAINT 202325482

Brighton and Hove City Council

4 October 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 resident’s complaint is about the landlord’s handling of:
1. Her reports of antisocial behaviour (ASB).
2. Her concerns about an overgrown tree in her neighbour’s garden.
3. Her complaint.

Background

The resident is a secure tenant of the landlord. She holds a joint tenancy with her husband which began on 25 November 2002. The property is a 2 bedroom terraced house. The resident has arthritis and allergies including hay fever.
The resident reported to the landlord that neighbour A had thrown pizza over the fence into her garden, which had struck her on the back, on 7 March 2022. The resident said she felt this was a racially motivated incident. On 9 March 2022, the resident reported a further incident where she said neighbour A had shouted and swore at her. The landlord opened an ASB case on 16 March 2022.
On 27 March 2022, the resident contacted the landlord to raise concerns about a tree in neighbour B’s garden. She said this was overgrown and overhanging the boundary fence. The resident said the tree was blocking light into her property, dropping fruit into her garden and agitating her allergies. She said that her and her husband were unable to cut the tree back themselves due to their mobility issues.
The landlord wrote to the resident on 7 November 2022 informing her that it was closing her ASB case. It said that it had referred her and neighbour A to mediation, which had now been completed. The landlord said it had not received reports of any ASB between them since July 2022 and there was no further action for it to take. It advised that the overhanging tree in neighbour B’s garden had been cut back on 4 November 2022.
On 19 December 2022, the resident reported that neighbour B and their partner had confronted her and her husband in an aggressive manner. The landlord opened a new ASB case for this. On 16 February 2023, the landlord wrote to the resident advising it was closing this case as it did not have sufficient evidence to take any action.
The resident made her complaint to the landlord on 31 July 2023. She complained that:
1. She felt the landlord had failed to handle her ASB reports in keeping with its policy.
2. She did not feel supported, listened to or treated with empathy by the landlord when reporting what she felt were hate based incidents.
3. She had hand delivered “third party evidence” of ASB by neighbour A to the landlord on 9 June 2022. It had never acknowledged or responded to this.
4. The landlord had inappropriately closed her 2 ASB cases without consulting her, and despite the fact that the mediation had not been successful.
5. The landlord had taken until 4 November 2022 to cut back the tree in neighbour B’s garden, causing her to suffer with her allergy issues through the entire summer.
The landlord provided its stage 1 complaint response on 25 August 2023. It said that:
1. It had not received the documents the resident sent on 9 June 2022. It asked her to resend these.
2. It treated any incident as a hate crime if the victim perceived it as such. However, it was unable to take enforcement action without corroborating evidence.
3. There were other actions it could take, such as contacting the alleged perpetrator and referring the case for mediation. Both of which it had done in her case.
4. It had written to her advising of the closures of both ASB cases and explaining the reasons for these.
The resident responded on 25 August 2023. She expressed continued dissatisfaction that the landlord had closed the ASB cases without her agreement. She also stated that it had failed to respond to follow up correspondence she had sent concerning the documents she had delivered her to its offices on 9 June 2022.
On 30 November 2023, the resident asked to escalate her complaint to stage 2 of the landlord’s process.
The landlord provided its stage 2 complaint response on 12 January 2024. It said that “I can see that within the response the service have advised of the actions they have taken in response to your reports. They have also confirmed that they treat any incident as a hate crime if and where the victim perceives it as such, I am satisfied that they have done this and acted inline with policies.”
The resident wrote to this Service on 8 April 2024 asking it to investigate her complaint. She accused the landlord of failing to follow its policy when investigating her reports about the neighbours and failing to offer appropriate support to her and her husband as victims of ASB.

Assessment and findings

ASB

The resident brought a previous complaint to the Ombudsman in 2021. This also concerned the landlord’s handling of her reports of ASB. A determination of this case was issued on 29 November 2021. The events considered by this investigation occurred after, and are entirely separate from, the previous Ombudsman investigation – which will have no baring on this determination.
The landlord’s complaints policy says that it will not consider complaints about matters arising more than 12 months prior to the complaint being made. The resident made her complaint on 31 July 2023. However, as the complaint concerned the closure of the ASB case which the landlord had opened on 16 March 2022, the Ombudsman considers it reasonable to examine events going back to this date.
The landlord opened an ASB case on 16 March 2022 in response to 2 reports made by the resident against neighbour A. The landlord contacted both the resident and neighbour A to discuss the allegations, which neighbour A denied. As there were no independent witnesses or evidence to support the resident’s allegations there was no further action the landlord could reasonably take. This was also the position taken by the police.
On 21 March 2022, with the agreement of both parties, the landlord referred the resident and neighbour A to mediation. This was in keeping with its ASB policy which says that it will use tools, including mediation, to resolve issues at an early stage.
On or around 9 June 2022, the landlord met with the resident and her husband. During this meeting it discussed her ongoing reports of ASB against neighbour A and explained the need for supporting evidence before it could take enforcement action. This appropriately managed the resident’s expectations for the outcome of any future incidents and provided clarity as to the types of evidence the landlord required.
The resident has said that, on 13 June 2022, she personally delivered hard copies of “third party evidence” to the landlord’s offices. The landlord has said that it never received these documents. The Ombudsman does not dispute either party’s version of events, and it is possible the documents were misplaced within the landlord’s offices.
However, the resident emailed the landlord on both 7 July 2022 and 7 October 2022 following up on the documents and expressing concern that it had not acknowledged them. These emails were not logged on the landlord’s ASB case and there is no evidence that it responded to them. This represented missed opportunities for the landlord to inform the resident it had not received the documents and ask for them to be resent – something it failed to do until its stage 1 complaint response on 25 August 2023.
On 7 July 2022, the resident also reported to the landlord that she had been involved in an altercation with neighbour A the previous night. She said she had reported this to the police who would be attending to speak to her. The resident later informed the landlord that she had captured the incident on a ‘bodycam’ and provided the footage to the police. There is no evidence the landlord ever asked for, or was provided with, this footage.
On 26 July 2022, the police informed the landlord that the footage “showed both parties at equal blame” and so they would not be taking any further action. They described the issues between the resident and neighbour A as “not anti-social behaviour, but rather two neighbours who are not getting on”.
The resident and neighbour A attended in person mediation on 12 September 2022. This was a full 6 months on from the landlord referring their case to an external mediation service. However, it is apparent that the mediation service spent this time doing preparation work to build towards the in person meeting. The landlord was in regular contact with the mediation service for updates throughout this period and there is no evidence of service failure in the handling of the mediation.
Following the mediation, the resident contacted the landlord. She expressed feeling that the mediation session was “a total failure” due to the way neighbour A had conducted themselves during it.
The mediation service provided a report to the landlord stating that “both parties engaged in and completed the mediation process” and “both parties engaged with the process to the best of their capacity”. It advised that “an agreement of best intentions was made regarding a small proportion of the issues being disputed, but unfortunately no agreement was reached regarding the largest proportion of the conflict”. It said it had closed the mediation case. The landlord was entitled to rely upon the opinion of the mediation service – which indicated both parties and appropriately participated and there was no further benefit to be gained from continued mediation.
The landlord wrote to the resident on 7 November 2022 informing her that it was closing her ASB case. The resident has expressed dissatisfaction that the landlord failed to seek her agreement on this. However, the landlord’s ASB policy says only that it “will always tell the person who reported the problem that we intend to close the case and why”. It does not commit to gaining their consent to do so.
In its letter the landlord explained that it had not received any further reports of ASB between the resident and neighbour A since July and that the mediation process had now been completed. The landlord’s ASB process says that it will “regularly review cases and close them at the appropriate time”. This being “when the situation is resolved, and no further action is required or because we have concluded that no action is possible”. At the point of closure, the resident’s case could reasonably be said to meet both criteria.
On 19 December 2022, the landlord opened a new ASB case after the resident reported an altercation with neighbour B. This had occurred on 15 December 2022. The landlord’s records indicate that it had already received a ‘counter allegation’ from neighbour B about this same incident.
The landlord visited the resident on 5 January 2023 to discuss the incident. It agreed to follow up with the police, who the resident also reported the incident to. The landlord’s records show that the police felt there was “no evidence to support” either party’s account of events. They said they had “advised they both stop harassing each other and gave words of advice to both parties to avoid and ignore each other”.
On 16 February 2023, the landlord wrote to the resident closing the ASB case. It explained that there was no evidence of what had occurred to enable it to take further action, and that it would be advising both parties to stay away from each other. The landlord also reasonably offered to refer the case to mediation. As established above, this notification of case closure was in keeping with the landlord’s policy.
As part of her complaint, the resident expressed dissatisfaction with the support offered by the landlord to her and her husband as victims of alleged ASB. The landlord’s ASB policy says that will provide “a service focusing on the victim by assessing the impact on people and tailoring support based on individual needs”. It lists “referring or signposting to other organisations” such as victim support as an example of this.
The landlord’s records show that it conducted a risk assessment with the resident and created a risk management plan when opening the case on 16 March 2022. Within this, it appropriately recorded that the resident viewed the incidents as ‘racially motivated’. The landlord confirmed in its stage 1 complaint response that it treated any incident as a hate crime “if and where the victim perceives it as such”.
There is no evidence that the landlord signposted the resident to organisations which could offer her support as a victim of alleged hate crime, in keeping with its policy. Nor did this form part of its risk management plan. The Ombudsman notes, however, that on 28 April 2022 Victim Support contacted the landlord on the resident’s behalf to state that it was supporting her with the ongoing issues. The resident’s GP had also written to the landlord on 30 March 2022 after she approached them for support with the issues with the neighbours. It is therefore apparent that the resident was capable of sourcing such support herself, so the detriment of the landlord failing to signpost to this was limited.
In summary, the landlord’s decision to close both ASB cases was reasonable and in keeping with its policy. It appropriately worked with the police and attempted to use mediation to resolve the issues but was unable to reasonably take any further action. However, the landlord failed to appropriately follow up on the fact that it had not received ‘evidence’ delivered by the resident. It also failed to signpost her to support services as part of its risk assessment process. The Ombudsman makes a finding of service failure.

Overgrown Tree

The landlord’s ‘tenant handbook’ says that “tenants are required to maintain their own gardens and balconies to make sure they look acceptable and do not cause a nuisance to their neighbours”. It says residents are responsible for “trimming shrubs, hedges or trees to make sure they do not become a nuisance to neighbours”.
The responsibility for maintaining any trees in neighbour B’s garden would therefore sit with neighbour B under the terms of the handbook. However, the landlord agreed with the resident that it would cut back the tree. Once the landlord had committed to this position it was obliged to carry out the works in a reasonable timeframe and to a reasonable standard.
The resident first reported issues with the overgrown tree to the landlord on 27 March 2022. On 25 April 2022, the resident’s GP wrote a letter to the landlord detailing the impact the tree was having on her allergies.
An email from the resident to the landlord, dated 6 May 2022, indicates that the landlord sent a tree surgeon “to investigate” at some point prior to that date. However, there is no evidence that any action was taken following this, and the entire process appears to have been unnecessarily restarted 2 months later.
A further email from the resident, dated 13 July 2022, states that a tree surgeon had visited the property again the previous week to “take notes” and provide a quote to cut back the tree. The landlord’s response on the same date confirmed that it had received the tree surgeon’s quote, and this was awaiting approval.
Although the exact date is unclear, the landlord’s records indicate that the quote was approved in early August 2022. Following this the landlord chased the tree surgeon to arrange the works on 2 occasions. The works were then booked for 24 October 2022, before being moved to 2 November 2022 at the resident’s request.
This date of 2 November 2022 varies from the date of 4 November 2022 listed by the resident in her complaint and the landlord in its stage 1 complaint response. However, the discrepancy of a couple of days is not significant enough to cause concern.
Overall, this represented a delay of over 7 months between the resident reporting the overgrown tree to the landlord and the tree surgeon completing the works. This is aggravated by the fact the resident’s GP had provided a letter detailing concerns about the impact of the overgrown tree, and that this period included the summer months when those concerns were most heightened. The Ombudsman therefore makes a finding of service failure.

Complaint handling

The resident logged her complaint on 31 July 2023. The landlord’s complaints policy says that it will provide a stage 1 complaint response within 10 working days, in keeping with the Ombudsman’s complaint handling code (the Code). The landlord’s stage 1 response was therefore due by 14 August 2023.
The landlord contacted the resident on 11 August 2023 to tell her its stage 1 response would be delayed. It attributed this delay to “the pressure of workloads”. It said it would provide its response by 18 August 2023.
On 18 August 2023, the landlord informed the resident its response would be further delayed as it was awaiting some outstanding information. It said its full response would be provided the following week.
The landlord provided its stage 1 complaint response on 25 August 2023. This was 19 working days after the resident had logged her complaint. The Code allows a landlord to extend its stage 1 response time by a further 10 working days where it provides the complainant with an explanation containing a clear time frame for when the response will be received. The landlord’s stage 1 complaint handling was therefore compliant with the Code.
On 5 September 2023, the resident provided a written reply to the landlord’s stage 1 complaint response. Within this she disputed several aspects of its response. The Code says that “if all or part of the complaint is not resolved to the resident’s satisfaction at stage 1 it must be progressed to stage 2”. It would therefore have been appropriate for the landlord to log a stage 2 complaint based on this communication. However, it failed to do so. It took until 30 November 2023, when the resident explicitly asked the landlord to escalate her complaint, for it to raise a stage 2 complaint.
The landlord’s complaints policy says that it will provide a stage 2 complaint response within 20 working days, in keeping with the Code. The landlord provided its stage 2 complaint response on 12 January 2024. This was 28 working days from the resident’s escalation request.
Whilst the Code makes provision for a further 10 working day extension at stage 2, there is no evidence the landlord agreed this with the resident or communicated about any delay in advance as it had at stage 1. The landlord did, however, appropriately offer an apology for the delay in its stage 2 response.
In summary, the landlord failed to appropriately escalate the resident’s complaint to stage 2 of its process despite her expressing dissatisfaction with its stage 1 response. It also failed to communicate delays in providing its stage 2 response to her. The Ombudsman therefore makes a finding of service failure.

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.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s concerns about an overgrown tree in her neighbour’s garden.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s complaint.

Order

Within 4 weeks of the date of this determination, the Ombudsman orders the landlord to:
1. Pay the resident £275 compensation composed of:
  1. £100 for the distress and inconvenience caused by its handling of her reports of ASB.
  2. £100 for the distress and inconvenience caused by its handling of the overgrown tree.
  3. £75 for the distress and inconvenience caused by its handling of her complaint.
The landlord should provide evidence of compliance with these orders to this Service.

Recommendation

The Ombudsman recommends that the landlord takes steps to remind staff handling ASB cases of the importance of signposting residents to support organisations and including this in their risk management plans where applicable.