Southend-on-Sea City Council (202220639)

REPORT

COMPLAINT 202220639

Southend-on-Sea City Council

29 February 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 ALMO 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 ALMO 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 ALMO’s:
1. Response to the resident’s reports of ASB.
2. Response to the resident’s request for adaptations to the property.
3. Response to the resident’s query about the front garden.
4. Consideration of the resident’s reports about a staff member.
5. Complaint handling.

Background and summary of events

Background

Correspondence in this case has come from the resident, her husband and on occasions from both parties. For clarity, the use of the ‘the resident’ in this case, is used to refer to both parties. The resident lives with her husband and their daughter. She describes the family as a “disabled household”. The resident is a full-time carer for her husband. She lives in a 2 bedroom ground floor flat in a converted semi-detached house.
The resident is a secure tenant of the landlord (‘the landlord’) who is a local authority. The landlord uses an arm’s length management organisation (the ‘ALMO’) to manage the property. A Local Authority has functions separate to its housing services, where these are referenced in this report, specifically in relation to the resident’s request for adaptations to the property, these have been referenced in the context of the Council’s services (‘the Council’).
The resident’s tenancy conditions states that residents must not behave (or allow other people to behave) in a way that causes any nuisance, or harasses, annoys or offends any other person. This may include damaging property. There is no mention of the front garden in the tenancy conditions.
The ALMO’s ASB policy states as follows:
1. Not all noise is anti-social. Noises that arise out of the ordinary and reasonable use of a property are not breaches of tenancy and cannot be subject to enforcement action. It will not normally investigate the following as ASB:
  1. Children playing or arguing.
  2. Events in the home such as vacuuming, washing machines, babies crying or playing.
  3. Staring or looking at someone.
  4. Normal conversation heard through walls or floors and noise due to poor insulation or type of flooring.
  5. Neighbours walking around their home, closing doors, cupboards or windows.
The ALMO’s website adds to its ASB policy and states that it is mindful that when non-ASB noises are repeated or severe, they can develop into more serious problems that can have a negative impact on the quality of life of other residents. It therefore considers each case individually from the perspective of both the person reporting the incidents and from the point of view of the person(s) they are complaining about.
The ALMO takes a tiered approach and believes that residents should be encouraged to find their own solutions in the first instance. If this does not work or is inappropriate and the behaviour is likely to be a breach of tenancy conditions, it may intervene and can assist residents with a mediation referral.
The Housing Ombudsman published a spotlight report on noise complaints in October 2022 (during the landlord’s internal complaints process in this case). It recognises that noise can cost residents their mental health and well-being and it can cost landlords in protracted and often futile interventions. It notes that most noise reports concern household noise rather than ASB. To handle such noise reports, landlords should adopt a proactive good neighbourhood management strategy, distinct to its ASB policy. Landlords should have options for maintaining good neighbourhood relationships (including mediation).
The ALMO has a 3 stage complaints process, starting with an informal complaint stage, followed by a formal complaint stage, and an escalated complaint stage. The ALMO defines an informal complaint as an expression of minor dissatisfaction or minor failure which can be quickly rectified or where the resident does not want to pursue the matter.
At stage 1 the ALMO aims to respond within 10 working days. At stage 2 it aims to respond within 20 working days. It will keep the resident informed if it requires further time at either stage.

Summary of events

The resident has been in regular contact with the ALMO about her upstairs neighbour since the week she moved into the property in 2014. She reported issues such as overcrowding, sounds of walking and children and said that water had entered her property from the neighbour’s property on a number of occasions which had caused damp and mould.
The ALMO considered the resident’s request for a permanent move in 2015 but this was not found to be required. It advised that the noises recorded via the noise app were normal household noises, however it issued the neighbour with an acceptable behaviour contract (ABC) to minimise noise after 9pm.
In 2018 the resident’s husband’s GP wrote to the ALMO to state that the ASB he was experiencing was impacting his health, as was the damp and mould. Following this the ALMO offered to refer the family to several different agencies for support, however the resident declined this.
In January 2019 the landlord was granted an injunction by the County Court, which ordered the resident to allow access to contractors.
An occupational therapist brought the resident’s case to the landlord’s Nominations Panel in March 2019 and noted that the resident was not happy in the property with reports of noise and damp. The occupational therapist advised the panel that the family were adequately housed and did not qualify for re-housing through the housing register but were registered with a home swap website. The occupational therapist advised the resident on 28 March 2019 that the property met their needs in terms of adaptations.
In February 2020 following further reports of noise from the neighbour the ALMO noted as follows:
1. It had offered sound recording equipment and suggested a mutual exchange. Both had been declined.
2. Its occupational therapist had concluded in 2019 that no further adaptations were required and it would only consider this again if a doctor supplied a change of circumstances referral.
Throughout 2020 the resident continued to report noise from her neighbour, she also said that they were breaching COVID-19 restrictions.
In January 2021 the police advised the ALMO that it had spoken to the neighbour about the water entering the resident’s property. It had concluded that it had been caused unintentionally by children playing. The neighbour had installed a stairgate to prevent this occurring again.
The resident also reported further breaches of COVID-19 guidelines by her neighbour. The ALMO advised that it had received counter allegations and that the neighbour had agreed to take part in mediation. It noted that it had listened to noise app recordings and had heard footsteps, creaking floor boards and a child but it was unable to pursue enforcement action for such noise.
On 18 January 2021 the resident advised the ALMO as follows:
1. The neighbour had accepted liability for water entering her property so the ALMO was in breach of the tenancy agreement and its duty of care.
2. The issues had caused serious health issues over the last six and a half years and the ALMO had ignored the advice of medical professionals.
3. The ALMO had testified in Court that she needed adaptions and that these would be carried out. It had failed to do so, causing “devastating hardship”.
4. It had shut down the housing application on false grounds.
5. Its portrayal of the resident and her family to outside agencies has been “discriminatory, dishonest and downright slanderous”.
On 22 January 2021 the ALMO acknowledged that the leaks into the resident’s property had been “unacceptable”. It advised that it had visited the neighbour to explain that it was a breach of tenancy and to explain the repercussions should it continue. It reiterated its suggestion of mediation.
The resident continued to contact the ALMO about its lack of action in respect of the neighbour and reported further noise towards the end of 2021.
There was a gap in correspondence until 11 May 2022 when the resident asked the ALMO if the front garden was private or communal. The ALMO confirmed on 19 May 2022 that it was communal. It reiterated that it could not consider historical ASB but advised the resident to record any further instances on diary sheets or via the nose app.
The ALMO wrote to the resident on 1 July 2022 in respect of her not allowing access for the neighbour’s window cleaner. It advised that it was a condition of tenancy that the windows were cleaned and it asked her to allow access. It also advised that it had received a report of the resident having videoed the window cleaner and asked her to refrain from doing so.
On 25 August 2022 the resident submitted a complaint to the ALMO and stated as follows:
1. The ALMO had told her verbally, on signing the tenancy, that the garden was her responsibility to maintain.
2. In responding to the query about the garden, a member of staff had been sarcastic in saying “I have trailed through your account”.
3. ASB had been ongoing for years and the ALMO had taken no action against the neighbour in respect of the water ingress. It had ignored the noise app recordings.
4. The neighbour had failed to maintain her hedge.
5. The ALMO had discriminated against her in upholding a complaint made by the neighbour about the issue with the window cleaner.
6. She referred the ALMO to a court document in respect of adaptations.
7. A tree was overgrown.
The ALMO acknowledged the complaint the same day and advised it would respond within 10 working days.
On 8 September 2022 the ALMO responded at stage 1 and stated as follows:
1. It reiterated that the garden was communal. It advised that the resident could maintain this if she wished and that if its contractors saw that the garden had been maintained then it would not undertake further maintenance unless requested.
2. It was a reasonable request for the resident to permit access to a window cleaner.
3. It would take relevant action in respect of the tree.
4. It apologised for delays in responding to the resident’s queries. It advised that it had undergone several staffing changes and had undergone a restructure, both of which had impacted its response times.
5. It had spoken to its staff member about the tone of emails and would be monitoring the situation to ensure that this area of communication improved.
6. There was no evidence that there had been any discriminatory or unfavourable actions taken regarding any of the matters the resident had reported.
7. Her housing account was accessible by all its staff and had not been restricted.
8. The water leaks from the above property were historical and had been investigated and responded to at the time.
9. It had previously responded to the resident’s reports of ASB in line with its policy. It would arrange to contact her to discuss any current or recent incidents of ASB.
On 29 September 2022 the resident escalated the complaint and stated as follows:
1. She reiterated that the front garden was private. She stated that it being communal was a breach of her privacy. The neighbour had been close to her window which had caused her “alarm and distress”.
2. The ALMO had not responded to her complaint about the window cleaner giving her “dirty looks”. She would permit the window cleaning but the neighbour needed to put this in writing beforehand.
3. She stated that she would maintain the garden but on the understanding that it was private and asked the ALMO to pay for it to be fenced off. Alternatively, she requested to be reimbursed for 8 years of maintenance.
4. She could not look after the tree due to its size and her ill health.
5. The ALMO had not addressed the harassment by the neighbour. It however had investigated a complaint made against the resident which was a breach of her privacy and data protection.
6. The neighbour’s garden was still overgrown.
7. The ALMO had advised her in January 2021 that her account had been restricted to minimise the staff who could access it.
8. Information used by the ALMO in court proceedings had not been accurate. It had not recorded her reports of ASB and had tampered with the evidence it had given the police and her MP.
9. It had not addressed the adaptations and it had not complied with court orders in respect of adaptations. This had taking away her “basic right to suitable housing”. The decision not to make adaptations was made by a non-medical member of staff who had ignored medical evidence.
10. She had no quality of life. The ALMO had disregarded her disabilities and the property was not adapted for her needs. The neighbours behaviour had “ruined” their lives.
The ALMO acknowledged the complaint on 3 October 2022. On 27 October 2022 it advised the resident that it needed more time to respond but that it aimed to do so by 11 November 2022.
On 9 November 2022 the ALMO responded at stage 2 and stated as follows:
1. It reiterated that the front garden was communal. It could find no evidence that it had informed the resident otherwise. It could not agree to fence it off or reimburse her for maintenance.
2. It had taken action to cut the tree in front of the resident’s property.
3. It could not identify any correspondence from its staff member that was unprofessional or discriminated against the resident. It advised that it would be inappropriate to comment on its internal processes relating to a specific staff member.
4. It acknowledged that the resident found her neighbours behaviour to be “frustrating and upsetting” and that there was a “difference in lifestyle”. It was not its place to comment on the lifestyle of the neighbour.
5. It had investigated and taken appropriate action in line with its ASB procedure and it had received no recent reports about the neighbour.
6. It acknowledged that there had been a number of leaks into the resident’s property which was “unacceptable”. It apologised and noted that there had been no further leaks caused by the neighbour for over 12 months.
7. Adaptations would be determined by the Council’s Occupational Therapy Team and it would not usually be involved in the process. It referred the resident to the Council in respect of any questions about adaptations that were outstanding.
8. It concluded that the response at stage 1 had been comprehensive and fair. It signposted the resident to this Service.
On 3 February 2023 the resident referred her complaint to this Service and stated as follows:
1. Her husband required adaptations in the property. The property was causing him both “mental and physical problems” and his disabilities and the families wellbeing had been affected by the neighbour’s behaviour.
2. The ALMO had misled medical professionals and the court in respect of the adaptations.
3. She requested that the ALMO provide the required adaptations or move them to a different property and for it to take action against the neighbour.

Correspondence following the referral to this Service

On 13 February 2023 the resident made further representations to this Service as follows:
1. The ALMO had not followed its complaint procedure as it had not responded at stage 0.
2. It had “harassed and discriminated” against them in not providing adaptations.
3. The ALMO had told her throughout the tenancy that the front garden was her responsibility.
4. It had used her husband’s National Insurance Number and personal information in respect of another tenant with the same name. This had been resolved but she had received threatening letters about rent arrears.
On 9 May 2023 the resident reiterated her concerns to this Service and stated that she has also made a complaint about a security light.
On 13 February 2024 the resident advised this Service as follows:
1. She reiterated that on moving into the property, the ALMO had informed her that the garden was private.
2. The police were now involved with the ASB.
3. The Occupational Therapist had determined that adaptions were required which could not be done at the property and that the resident should be moved. No adaptations have been carried out and the resident could not enter the property in a wheelchair and had to walk into the property. The only communication received was for another assessment to take place which she stated was “disgusting”.
4. The behaviour of the staff member continued to be an issue.

Assessment and findings

Scope of investigation

The resident has been in regular contact with the ALMO about her neighbour since 2014. The resident has had the opportunity to raise her concerns via the ALMO’s complaints procedure and subsequently with this Service throughout this time period. With the passage of time, evidence may be unavailable and personnel involved may have left an organisation, which makes it difficult for a thorough investigation to be carried out and for informed decisions to be made. Taking this into account and the availability and reliability of evidence, this assessment will only focus on the period leading up to the completion of the ALMO’s complaints procedure (November 2022). Reference to events that occurred earlier are made in this report to provide context only.
This Service is not a reactive service and as such this investigation only considers the matters investigated by the ALMO during its internal complaints procedure which concluded in November 2022. The resident subsequently reported further matters to the ALMO and this Service. The following matters raised after the completion of the internal complaints procedure do not form part of this investigation:
1. The use of the resident’s husband’s National Insurance Number and personal information.
2. An issue with a security light.
3. ASB reported after November 2022.
4. Behaviour of a member of staff after November 2022.
It is noted that the resident has stated that the behaviour of her neighbour and the lack of adaptations impacted the health of the family. It is beyond the remit of the Housing Ombudsman to decide whether there was a direct link between the actions or inactions of the ALMO and the resident’s families health. The resident therefore may wish to seek independent advice on making a personal injury claim if she considers that her or her families health had been affected by any action or inaction of the ALMO.

Response to the resident’s reports of ASB

It is the Ombudsman’s role to assess the appropriateness and adequacy of the ALMO’s response to reports of the neighbour’s behaviour and the reasonableness of its response to the formal complaint. This does not include establishing whether the neighbour is responsible for ASB or noise nuisance. The investigation is limited to the consideration of the actions of the ALMO in the context of its relevant policies/procedures as well as what was fair in all the circumstances of the case. The Ombudsman cannot tell the ALMO to take action against the neighbour.
The behaviour of the neighbour reported by the resident to the ALMO in May 2022 was in respect of historical issues and the ALMO’s historical response to it. The ALMO appropriately advised the resident that it could not consider historical behaviour but advised her to record any further instances, should they occur, on diary sheets or via the nose app. This was appropriate.
It is noted that following this, the ALMO investigated a counter allegation against the resident involving a window cleaner. It was appropriate for the ALMO to contact the resident about this to clarify the tenancy conditions and to ask her to refrain from filming the window cleaner. This demonstrated that the landlord had taken steps to try to prevent an escalation of the situation. There is no evidence that the landlord discriminated against the resident in doing so.
The resident’s formal complaint (made to the ALMO in August 2022) referred to the neighbour’s behaviour which she stated had been ongoing for “years”. The ALMO appropriately advised in its stage 1 response that the water leaks from the neighbour’s property were historical and that it had responded to the resident’s concerns in respect of this at the time. It took appropriate proactive action in advising the resident that it would contact her to discuss any current or recent incidents of ASB. It was appropriate for the ALMO to advise that it could not investigate historical matters and for it to offer to speak to the resident about the current situation.
It is noted that in the escalation request, the resident did not provide details of any new behaviour and referred back to the historical reports and the landlord’s handling of them. The ALMO appropriately reiterated in its stage 2 response that it had not received any recent reports of ASB from the resident and that historical reports had been investigated and appropriate action taken in respect of the leaks which had been substantiated. Despite there having been no recent reports, the ALMO acknowledged that there was a difference in lifestyle between the resident and the neighbour and that this had caused frustration and upset to the resident. Although the ALMO was limited in the action it could take, given the lack of recent reports, it was appropriate for it to acknowledge this impact on the resident. This demonstrated a resident focused approach.
It is encouraging to see that the ALMO’s website includes information for residents in respect of noise nuisance and does not treat all such reports as ASB (in line with the spotlight report). The suggestion from the ALMO that the resident report further instances of noise to it via diary sheets or the noise app were appropriate as was its offer of mediation. This was also in line with the spotlight report which encourages such an approach.
In summary, the landlord responded appropriately to the resident’s complaint about its handling of ASB and as such there was therefore no maladministration.

Response to the resident’s request for adaptations to the property

It is clear that the resident’s dissatisfaction with how the ALMO responded in respect of adaptations (confirmed in 2019 as not being required) are historical. It is not within the remit oft this Service to investigate historical matters. It must also be noted that the resident has referred to previous court action on several occasions however this Service is not able to make findings based upon anything that was decided through a court process. This investigation is focused only on how the landlord responded as part of its complaints process to the resident’s further concerns about adaptations.
The landlord advised at stage 2 that adaptations would be determined by the Council’s Occupational Therapy Team and installed by their contractors. It advised that it, as the ALMO, it would not usually be involved in this process. It signposted the resident to the Council in respect of this.
Whilst it was appropriate for the ALMO to advise that adaptations were not within its remit, it could have gone further to offer guidance to the resident in respect of this. It is clear from the landlord’s website that residents are able to apply for a ‘Disabled Facilities Grant’. In addition there is also information available signposting resident’s to local providers of assistive equipment and websites to enable them to find equipment or adaptations using their own initiative. There is no evidence that the ALMO advised the resident that these were potential options to support the resident.
It is clear from the landlord’s website that it would assess the current property before it would consider re-housing. It is encouraging to see that, following the completion of its complaints procedure, the ALMO offered the resident a further occupational therapist assessment. This was appropriate however it could have been offered at an earlier point during the internal complaints procedure.
In summary, the ALMO acted reasonably in responding to the resident’s concerns. It could however have provided further signposting to possible support options and could have re-offered the occupation therapist appointment at an earlier stage. This amounts to a service failure. To acknowledge the frustration this caused to the resident compensation of £100 has been ordered.
It is noted that the resident was dissatisfied with being informed that she would need to start this process again, however, this Service respects that the process outlined by the ALMO, i.e. a further occupational therapist assessment, followed by consideration of any identified recommendations, is the appropriate process for ensuring that the property meets the household needs. It is recommended that the resident work with the Council and ALMO in this respect.

Response to the resident’s query about the front garden

It is noted that the resident’s tenancy does not include mention of the front garden. It is not however for this Service to determine if the garden was communal or private. Instead this Service can only consider how the ALMO responded to the resident’s query and whether it did so reasonably.
The resident queried the ownership of the front garden with the ALMO on 11 May 2022. The ALMO responded in a timely manner and advised that it was communal on 19 May 2022. The resident disagreed with this which formed part of her complaint. She stated that the ALMO had advised her throughout the tenancy that she was responsible for the maintenance of the front garden. The ALMO considered this but advised it could not find a record of any such correspondence. It asked the resident to provide this which was an appropriate request as part of its investigation. As no such evidence was provided it reiterated to the resident that the garden was communal.
It acknowledged that the resident had been maintaining the garden, but as she was not responsible for doing so, it would not reimburse her for the cost of this. This was reasonable. It considered the resident’s request to have the garden changed to her private usage and for it it be fenced but due to the communal nature it reasonably advised that it could not do so.
It is noted that the resident has expressed her concerns over her privacy with the garden being communal and that the window cleaner had stood near her window. The ALMO appropriately advised the resident that the neighbour had acted in line with her tenancy conditions in having her windows cleaned and that the resident should provide access for this. This was appropriate.
Whilst it is clear that the resident does not agree with the ALMO’s assertion that the garden is communal, the ALMO took appropriate steps to confirm this to her and gave her the opportunity to provide evidence to the contrary in order for it to investigate the matter further. There was therefore no maladministration.

Consideration of the resident’s reports about a staff member

The resident stated that a member of the ALMO’s staff was discriminatory towards her. Under para 42 (h) of the Housing Ombudsman Scheme (the Scheme) this Service may not consider matters which concern terms of employment or other personnel issues of the ALMO. It is not for this Service to investigate any internal action the ALMO took in respect of an individual staff member. Instead this investigation will focus on how the ALMO responded to the resident’s concerns.
Following the resident raising her concerns, the ALMO advised that it had spoken to its staff member about the tone of emails and would be monitoring this. It further explained in its stage 2 response that it would not comment on its internal processes relating to a specific staff member. This was appropriate. It did however advise that it had not been able to identify any correspondence which was unprofessional or discriminatory. The ALMO demonstrated that it had taken the resident’s concerns seriously and investigated the reports. It’s actions in reviewing the correspondence sent by its staff member was reasonable. There was therefore no maladministration.

Complaint handling

The resident advised this Service that the ALMO did not follow its complaints procedure as it did not provide a stage 0 response. It is clear from the ALMO’s complaints policy that stage 0 is only considered appropriate for an informal complaint which can be resolved straight away or where the resident does not wish to pursue it. As this did not apply to the resident’s complaint, particularly in light of the complexity and history of the case, it was appropriate for the ALMO to respond to it as a formal complaint. It should be noted that the Housing Ombudsman complaint handling code (the Code) states that ALMO’s should have a 2 stage complaints process. A recommendation has been made in this respect of this below.
The ALMO responded at stage 1 within the timeframe stated within its complaints procedure (10 working days). It is noted however that the landlord did not address the resident’s aspect of complaint in respect of adaptations in its stage 1 response. This was not appropriate as all aspects of complaint should be investigated and responded to.
There was a delay in the ALMO responding at stage 2, as it took the ALMO 29 working days (instead of 20 working days). The complaints policy states that where more time is needed beyond 20 working days, the ALMO should keep the resident informed. This is also echoed in the Code. Th ALMO advised the resident that it required more time for the stage 2 response and subsequently provided the response before the end of the extended timeframe. The ALMO could have offered an apology to the resident in its stage 2 response however as it had kept the resident updated about the delay, its actions were reasonable.
In conclusion, as the ALMO did not respond to each aspect of the resident’s complaint at stage 1, which led to the resident chasing this, there was a service failure in the landlord’s complaint handling. To acknowledge the frustration this caused to the resident, compensation of £100 has been ordered. This is in line with the Housing Ombudsman remedies guidance where there has been a single failing which had an temporary impact on the resident.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman scheme there was no maladministration in the ALMO’s response to the resident’s reports of ASB.
In accordance with paragraph 52 of the Housing Ombudsman scheme there was a service failure in the ALMO’s response to the resident’s request for adaptations to the property.
In accordance with paragraph 52 of the Housing Ombudsman scheme there was no maladministration in the ALMO’s response to the resident’s query about the front garden.
In accordance with paragraph 52 of the Housing Ombudsman scheme there was no maladministration in the ALMO’s consideration of the resident’s reports about a staff member.
In accordance with paragraph 52 of the Housing Ombudsman scheme there was a service failure in the ALMO’s complaint handling.

Reasons

The ALMO appropriately advised that it could not investigate historical ASB and advised the resident to report any new instances to it and advised of the means to do so.
The ALMO could have provided further signposting to possible support options in respect of adaptations and could have re-offered the occupation therapist appointment at an earlier stage.
The ALMO appropriately responded to the resident’s query about the front garden and confirmed it was communal. It appropriately gave the opportunity for the resident to provide evidence that it had told the resident that it was private or for her to maintain.
The ALMO appropriately considered the resident’s reports about a staff member and investigated her concerns. It appropriately advised that it could not provide details of its internal staff processes.
The ALMO did not address every aspect of complaint at stage 1. This led to the resident having to chase a response to this aspect.

Orders and recommendations

Orders

The landlord is ordered to take the following action within 4 weeks and provide evidence of compliance to this Service:
1. Pay the resident £200 compensation made up as follows:
  1. £100 to acknowledge the impact of the service failure in its complaint handling had on the resident.
  2. £100 to acknowledge the impact of the service failure in respect of its response to the resident’s request for adaptations.

Recommendations

The ALMO should review its complaints policy in line with the Housing Ombudsman complaint handling code.