Southwark Council (202306966)

REPORT

COMPLAINT 202306966

Southwark Council

13 February 2025

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 response to the residents reports of:
1. An incident in May 2020 in which her son had fallen out of a window.
2. Antisocial behaviour (ASB) by her downstairs neighbour.

Background

The resident is a secure tenant of the landlord, which is a council. The tenancy commenced on 4 May 2020. At the time the tenancy commenced the resident’s son was approximately 4.5 years old.
On 12 February 2023, the resident emailed the landlord and the police to complain about ‘harassment’ and their resident services officer. The resident said that:
1. Her downstairs neighbour had ‘started with her antics again’ and had recorded her son and his dad as they were coming into their block. The resident said that the neighbour then got on her phone and started talking about her son’s dad, ‘along with a load of verbal abuse.’
2. About a year previously she had called her resident services officer several times to report that her neighbour had made threats. The resident said that the resident services officer took no action until she contacted his manager, and it was only then that mediation was arranged. However, the ‘harassment’ by the downstairs neighbour had continued. The resident also provided police ‘CAD’ reference details from 2021 and 2022.
3. This had affected her son’s ability to sleep at night, due to him being fearful and the neighbour ‘intentionally making noise late in the evening.’ The resident also said that this had elevated her anxiety, depression, and other health issues.
4. She had provided:
  1. A letter from her Psychological Wellbeing Practitioner, dated 8 November 2022, referring to her current living situation impacting her anxiety, and that the resident had reported panic symptoms triggered by the neighbour’s behaviour.
  2. A letter from her son’s school dated 22 June 2022 referring to a decline in her son’s behaviour.
The resident also complained about the same resident service’s officer’s response to her report of an incident in May 2020 when her son fell out of a window. The resident said after the incident she called him but he ‘showed her no empathy’ and said that there was nothing he could do.
The police forwarded the complaint to the resident services officer, who was not included in the resident’s email, of 13 February 2023. The police stated that this was a housing matter and that there was nothing they could do.
The landlord issued its stage 1 response on 30 February 2023. In its response the landlord:
1. Referred to the meeting arranged for 16 February 2023 at its offices, at which the resident’s allegations of abusive ASB by her neighbour, and counter-allegations made by the same neighbour, were discussed.
2. Said that the case had been forwarded to a mediation service. However, the resident had advised that after a while the neighbour had continued to behave unreasonably. The landlord noted that the resident had referred to the neighbour playing loud music and that they had ‘continued with the shouting and banging.’ The resident had also reported that the neighbour had taken pictures of her son and his father when they were walking in the communal area.
3. Advised that it had been agreed that, as the resident was still experiencing ASB by her neighbour, it would engage the services of a professional witness service. The landlord said that it would get back to the resident as soon as it was able to arrange this.
4. Asked that, in the meantime, the resident continued to keep a nuisance log of any further incidents. The landlord also said that it would speak to the neighbour about the allegations made.
5. Referred to the resident’s report of the fault with her window in 2020 and asked if the issue with the latch had now been repaired.
The landlord acknowledged the resident’s escalation request on 3 April 2023 and advised that it would provide its response by 4 May 2023.
On 3 May 2023, the landlord emailed the resident to apologise for the delay in its response.
The landlord issued its stage 2 response on 5 May 2023 in which it:
1. Said that it met with the resident at its office on 16 February 2023, and had arranged mediation, after which the issues started again.
2. A professional witness services was being organised as the resident was still experiencing ASB. She was asked to keep a noise nuisance log of any further incidents or ASB that may occur before the professional witness service was engaged, as this would help her case.
3. It had been explained to her that the Council’s noise team would need to witness the noise and agree that this met the unreasonableness requirement before any enforcement action could be taken. The Council’s noise team had advised that when they did a call-back the noise had stopped and so they had been unable to take any action at that time.
4. The option of a noise recording box was being discussed, which the resident could request via her Housing Officer. The landlord said that this would help the Council’s noise team to assess the noise. The landlord also advised that the professional witness service would contact her to discuss this matter further with the aim of a permanent resolution.
5. The resident had been advised that she may continue to discuss the issue with her resident services officer and manager in the meantime.
6. Her resident services manager had also advised that she would be speaking with the neighbour again about the issues the resident was experiencing.

Assessment and findings

The Ombudsman’s role is to assess whether the landlord has followed proper procedure, good practice, and behaved reasonably, taking account of all the circumstances of the case. When considering the landlord’s handling of the matter, the Ombudsman is guided by the landlord’s policies and procedures and our own Dispute Resolution Principles, which are:
1. Be fair – treat people fairly and follow fair process.
2. Put things right.
3. Learn from outcomes.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
In her complaint of 12 February 2023, the resident raised concerns about how her resident services officer had responded to her report of an incident in May 2020 that her son had fallen out of a window. In her complaint the resident said that the ‘project manager’ suggested that she make a formal complaint at that time, advice which she said she wished she had taken.
Whilst the incident reported in May 2020 would understandably have been distressing for the resident, as she did not raise a formal complaint with the landlord about this matter until over 2 years later, this is not a matter that can be considered by this Service.
This is because, in accordance with Paragraph 42(c), the Ombudsman may not consider complaints which, in the Ombudsman’s opinion were not brought to the attention of the member as a formal complaint within a reasonable period, which would normally be within 12 months of the matter arising.
As the resident’s complaint, about how the landlord responded to her report of an incident in May 2020 in which her son had fallen out of a window, was not made until significantly more than 12 months after the matter arising, this complaint is outside of the scope of this investigation under 42(c) of the Scheme, and as such will not be considered any further in this report.

Response to resident’s reports of ASB by her downstairs neighbour

It is important to note that it is not the purpose of this report to investigate any of the reported ASB itself, to apportion blame or to assess the credibility of the reports made by the resident. Rather it is to assess the landlord’s response to the reports and to the resident’s subsequent complaint with reference to its own policies as well as our own assessment of what is fair, given all the circumstances of the case.
The landlord’s ASB procedure confirms that it is responsible for handling medium and low risk cases. This includes interviewing the victim, carrying out a risk assessment and considering the most appropriate and proportionate remedy to deal with the case. The noise team referred to in this report falls within the responsibilities of the Council as a local authority and not as the landlord. As such, whilst this report refers to the noise team, their actions have not been assessed as part of this investigation. This is because any concerns about the Council’s noise team would be a matter for the Local Government and Social Care Ombudsman (LGSCO) to consider.
This Service is aware that the resident had been experiencing ASB by her downstairs neighbour prior to the period covered in this report, and that following this the level of ASB experienced by the resident increased. However, this investigation will focus on the landlord’s response to the resident’s reports of ASB by her neighbour between 9 May 2022 and its final response to her complaint on 5 May 2023. This is because we cannot consider matters that occurred more than 12 months before the complaint was made, nor can we consider matters that have not yet exhausted the landlord’s formal complaints process.
The landlord’s ASB procedure refers to the definition of ASB as being:
1. Acting in a manner that caused or was likely to cause harassment, alarm, or distress.
2. Engaging in behaviour which causes or is likely to cause a nuisance or annoyance to a person residing in, visiting, or otherwise engaging in lawful activity.
The incident that the resident referred to in her complaint of 7 February 2023, as having occurred ‘about a year previously’, related to a report she made on 9 May 2022 about an incident that had occurred 2 days earlier. This related to her downstairs neighbour who the resident said had approached her ‘in an aggressive manner’ and had followed her son’s father and taken pictures of him. In her report the resident said that both parties called the police, who initially took no further action. However, shortly after, the neighbour and a ‘male’ rang her intercom. The resident said that they tried pulling the door to get in and when she looked, she saw that the ‘male’ was holding a machete. She immediately called the police, who attended and, whilst they could not locate the male, arrested the neighbour.
As the allegations reported by the resident fell within the landlord’s definition of ASB, and as the landlord was already aware of allegations made by the resident about her neighbour, and counter allegations by the same neighbour, it was appropriate for it to respond to the resident’s new report in accordance with its ASB procedure.
The landlord would therefore have been expected to have conducted an interview with the resident and completed a ‘risk assessment scorecard/matrix.’ Given that the resident had also referred to the police attending and that they had arrested her neighbour, the landlord would also have been expected to contact the police to discuss the incident with them.
However, the landlord has provided this Service with no evidence that it did so at that time.
Although we are still able to determine this case using the information that was available, the lack of this evidence has meant that it has not been possible to conclude with any certainty that the landlord followed its own procedures in relation to the initial interview with the resident or the completion of a risk assessment. We have also been unable to conclude that the landlord took appropriate steps with regards to its contact with the police at that time.
This is of particular concern given that in her complaint the resident said that her services officer took no action until she contacted his manager, and it was only then that mediation was arranged. Given the impact of this record keeping failure on this Service’s ability to investigate this element of the case, a finding of maladministration has been made.
Despite the landlord’s initial record keeping failures, the subsequent actions it took were appropriate and in line with its ASB procedure.
This is because within 1 month of the resident’s report of 9 May 2022, the landlord had referred both parties to mediation, which took place on 8 June 2022. The landlord’s decision to do so was in accordance with its ASB procedure which states that mediation may be suitable in situations where: it is evident that the landlord is unable to resolve an ongoing neighbour dispute through normal resident services intervention and management; and where an existing neighbour dispute had suddenly escalated and required urgent attention and management of the situation by an experienced third-party.
The landlord’s approach in referring the resident and her neighbour to mediation was also supported by the police. This is evidenced by the police’s response to the resident service’s officer’s email of 7 November 2022 which confirmed that the resident and her neighbour had been referred to mediation. The police’s response to this was to say ‘Perfect, looks like you have it in hand.’
On 2 February 2023, the police emailed the resident services officer again to say that they had spoken to the resident that day who had told them about issues she was having with her downstairs neighbour. The police said that the resident had confirmed that the landlord had arranged mediation but the neighbour had ‘started with the banging, amongst other allegations.’ The police said that they would go and speak to the neighbour again and asked that the resident services officer email them some dates when they would be available, the following week, to discuss the case. The resident services officer responded on 3 February 2023 and agreed to meet with the police the following Monday.
In cases of ASB, landlords have a number of powers available to them in the Anti-social Behaviour, Crime and Policing Act 2014, and enforcement action under the tenancy terms. These include injunctions and possession orders. For a landlord to take formal action in respect of anti-social behaviour, it would normally need corroborating evidence to pursue formal action.
In this case as the police had advised the landlord when they forwarded the resident’s complaint on 13 February 2023, that this was a housing matter and that there was nothing they (the police) could do, it was reasonable for the landlord to not take any formal action against the neighbour that that time.
Nevertheless, having been made aware that the mediation had ultimately failed, the landlord took a reasonable approach in attempting to resolve the issues and prevent the matter escalating further. This it did by arranging a meeting with the resident at its offices on 16 February 2023 to discuss her concerns and referring the case to a professional witness service.
This was in accordance with the landlord’s ASB procedure which states that professional witness services are used in particular for the resolution of reports of antisocial behaviour involving noise disturbance. The ASB procedure goes on to state that this should be considered in circumstances where the landlord is ‘unable to resolve an ongoing neighbour dispute through normal resident services intervention and management’, and ‘where parties have been offered mediation or mediation is not considered appropriate’. All of which applied in this case. The landlord also referred the case to the Council’s noise team to consider whether the noise reported represented a statutory noise nuisance.
On 25 April 2023, the Council’s noise team emailed the landlord to explain that they would need to witness the noise, and that this would need to meet the ‘unreasonableness requirements’ before the Council could take any enforcement action. They went on to:
1. Explain that the noise had stopped before their team called back and that this had now been going on for a long time with little case progression.
2. Ask whether the landlord would consider installing a noise box for 7 days to help them assess the noise.
The landlord responded to the Council’s noise team the same day, 25 April 2023, to confirm that a noise box would be ‘welcome’ and to ask when this could be installed.
The professional witness service attended on 17 and 20 May 2023 and reported that they had ‘parked outside (the) block and if (the) noise started the resident (had been) asked to contact them, as agreed, and they would then enter the property to witness the noise’. On both occasions they reported ‘nothing witnessed on this visit.’
It is recognised that the actions taken by the landlord in the period covered by this report did not ultimately result in a permanent solution to the issues raised by the resident. However, this service is satisfied that during the period covered by this investigation, the landlord took reasonable and appropriate steps to seek to resolve the issues between both parties. This it did by acknowledging the resident’s concerns about her neighbour’s behaviour, meeting with her to discuss her concerns, seeking to mediate a solution and engaging the services of the Council’s noise team and a professional witness service.
However, whilst the landlord’s actions were, overall, reasonable its failure to provide this Service with evidence of its actions immediately following the resident’s report of 9 May 2022, represent record keeping failures on its part for which a finding of service failure has been made.
To put this right the landlord has been ordered to pay the resident £200 compensation and to review its record keeping in relation to the resident’s report of 9 May 2022. The landlord is then to confirm to this Service what its findings were and what action it intends to take as a result.

Determination

In accordance with Paragraph 42(c) of the Scheme the resident’s complaint about the landlord’s response to her report of an incident in May 2020 in which her son had fallen out of a window is outside of this Service’s jurisdiction to consider.
In accordance with paragraph 52 of the Scheme, there was maladministration by the landlord in respect of its response to the resident’s reports of ASB by her downstairs neighbour.

Orders

That within 28 calendar days of the date of this report the landlord is to:
1. Pay the resident £200 for the record keeping failures identified in this report.
2. Review its record keeping in relation to the resident’s report of 9 May 2022. The landlord is then to confirm to this Service what its findings were and what action it intends to take as a result.
3. Confirm compliance with the above orders.