Welwyn Hatfield Borough Council (202013465)

REPORT

COMPLAINT 202013465

Welwyn Hatfield Borough Council

8 September 2023

Our approach

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

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

The complaint

The complaint is about the landlord’s response to:
1. antisocial behaviour (ASB) reports made against the resident by his neighbour.
2. counter allegations of bullying and harassment made by the resident about his neighbour.

Background

The resident is an assured tenant of the landlord and occupies a flat within a block of flats. The resident has advised that he has mental health conditions which the landlord is aware of.
The resident’s complaint concerns two sets of neighbours living at different properties near the resident’s property. For the purpose of this report, they have been referred to as Neighbour A and Neighbour B.
On 8 June 2020, Neighbour A reported to the landlord that the resident had been causing a noise disturbance. On the same day, the landlord’s ASB team wrote to the resident, notifying him that it had received a noise disturbance report relating to DIY noise and a loud TV coming from his property. It also advised that it had received reports that the smell of cannabis had been coming from the resident’s property. The landlord’s warning notice highlighted that while it considered the reports as allegations, it would encourage the resident to take steps to ensure that these issues did not occur again. It also outlined that it may take steps to establish the cause and level of nuisance, which could include visiting the resident’s property, or installing noise monitoring equipment into the complainant’s property.
On 15 June 2020, the resident called the landlord to discuss the warning notice he had received. He stated that he believed Neighbour B had made the reports against him and that these reports were made maliciously in retaliation to him asking them not to park outside his window. The resident stated Neighbour B was bullying and harassing him and suggested to the landlord that he would be willing to enter mediation with them. The resident accepted that he had been carrying out DIY work but emphasised that this had been during reasonable hours. He also acknowledged that on one occasion the smell of cannabis may have been coming from his property, due to him leaving his friend in his property unattended. However, he assured the landlord that this would not happen again. The resident also accepted that he had fallen asleep with the TV on at night but explained that this had not been intentional.
On 13 August 2020, the landlord closed its case relating to the resident’s alleged ASB, due to receiving no further reports of noise disturbance. However, on 10 December 2020, the landlord received a telephone call from Neighbour A reporting that the resident had been causing a noise disturbance again. During the telephone call, the landlord overheard drilling, hammering, and sanding in the background, causing Neighbour A to leave their property and continue the conversation outside. Consequently, the landlord reopened the noise disturbance case and on 18 December 2020, its ASB team sent a second warning notice to the resident. The notice stated that it had received a further report of the resident carrying out loud DIY in his property, which this time had been witnessed by the landlord. It confirmed that it would be undertaking further investigations to establish the cause and level of nuisance, and reminded the resident that if he were to be carrying out substantial work within his property, he would be required to complete an alterations form to obtain permission from the landlord to carry out such works. On 8 June 2021, the landlord closed its case relating to the resident’s alleged ASB for a second occasion, due to receiving no further reports of noise disturbance.
The resident raised a complaint with the landlord on 30 October 2021. He reiterated that he believed Neighbour B had been making malicious allegations against him, and questioned what actions the landlord had taken to investigate his complaint against Neighbour B. The resident informed the landlord that the neighbour who lived above him was the perpetrator of the loud DIY works. He also highlighted that it was not the responsibility of the landlord’s ASB team to investigate potential planning breaches. He stated that an employee from the landlord’s ASB team lied about witnessing loud DIY coming from his property, and as a resolution to his complaint, he sought an apology from the landlord along with confirmation that the employee in question had been dismissed from their job.
On 2 December 2021, the landlord sent its stage one complaint response to the resident. It partially upheld the resident’s complaint due to its misuse of the word ‘witnessed’ in its second warning notice to the resident. It clarified that an employee overheard loud DIY works while on the phone with Neighbour A but could not have been certain this was coming from the resident’s property. However, it advised that Neighbour A reported that they were certain the noise disturbance was coming from the resident’s property, and that Neighbour A had informed the landlord that other neighbours were complaining about the resident’s loud DIY works. It explained that while DIY noise was not actionable under its ASB policy, persistent and ongoing works for prolonged periods could constitute as statutory noise nuisance. It advised that it did not investigate the resident’s reports of feeling bullied and harassed by Neighbour B, as the resident gave no grounds for it to do so. Additionally, the landlord highlighted that its ASB team asked the resident to provide more details of who he thought the perpetrator of the DIY works was. However, as this information was never received, it could not investigate further. Overall, the landlord concluded that its ASB team followed the correct procedure when handling the case.
On 31 January 2022, the resident emailed the landlord to escalate his complaint to stage two of its complaints process, as he believed the landlord had colluded with Neighbour B to put together false allegations and evidence against him. He believed the landlord’s actions were part of a wider plan to seek retribution for having to house him when he initially approached its homelessness team in 2018. He also questioned why the landlord had not visited his property to verify if he had been carrying out DIY in his property and expressed that the landlord’s actions had exasperated his mental health conditions.
The landlord sent its stage two complaint response on 23 February 2022. In this it clarified that Neighbour B had not raised any reports against the resident and reiterated that its ASB team had followed the correct procedure when handling the case.
The resident contacted this Service on 18 November 2022, to ask for the complaint to be investigated. He explained that he wanted the landlord to terminate the employment of the staff member who had managed the ASB reports made against him. He also wanted the landlord to be held accountable for its treatment towards him in 2018 and throughout the course of his current complaint.

Scope of investigation

There is an element to this complaint which is outside the scope of the Ombudsman’s investigation. This concerns the resident’s reference to the actions of the landlord’s homelessness team when he presented for assistance in 2018, which he believes demonstrates the landlord’s ongoing vendetta against him. The Ombudsman cannot consider complaints that were not brought to the landlord’s attention within a reasonable period which would normally be within six months of the matters arising. This is because residents are expected to raise complaints with their landlords in a timely manner so that the landlord and the Ombudsman has a reasonable opportunity to consider the issues while they are still ‘live’, and while the evidence is available to reach an informed conclusion on the events that occurred. The Ombudsman has not seen any evidence that the resident raised his concerns about the homelessness team to the landlord as a complaint in 2018. Therefore, in the interest of fairness, the scope of this investigation is limited to the events that occurred from 8 June 2020 onwards.
As part of his complaint, the resident has said that the landlord’s actions during the handling of the ASB case, affected his mental health conditions. The Ombudsman does not doubt the resident’s comments about his mental health. However, it is beyond the remit of this Service to establish if there is a direct connection between the landlord’s actions or inaction and the resident’s health. Matters such as this are better suited to a court to decide as the courts have different powers to the Ombudsman. The courts can call on medical expert witnesses and award damages in a different way to the Ombudsman. However, consideration has been given to any general distress and inconvenience the resident experienced because of any errors by the landlord as well as the landlord’s response to the resident’s concerns about his mental health.

Assessment and findings

Policies and procedures

The landlord’s ASB policy which can be found on its website defines ASB as:
1. conduct that has caused, or is likely to cause, harassment, alarm, or distress to any person.
2. conduct capable of causing a serious nuisance.
3. conduct capable of causing housing-related nuisance or annoyance to any person.
The landlord’s ASB policy states that there will be occasions where behaviour reported will not be defined as ASB. This includes where there is no pattern or persistency, and the incident is minor. Additionally, this could be where the behaviour is reasonable such as, carrying out DIY at reasonable hours. However, each report will be considered on a case-by-case basis.
Additionally, its ASB policy explains that the landlord may issue warning letters when seeking to resolve a case, however, if it decides there is no reasonable action that can be taken to deal with an issue reported, then it will inform the complainant and provide an explanation why. It will also close a case where there is no evidence to progress it and no further action can be reasonably taken.

The landlord’s response to ASB reports made against the resident by his neighbour.

It is outside the Ombudsman’s role to establish whether someone has or has not committed ASB. Rather, we seek to establish whether the landlord’s response to both the resident and his neighbour were in line with its legal policy and obligations, and whether its actions were fair in all the circumstances of the case.
In this case, the evidence shows that Neighbour A’s initial report of noise nuisance, related to noise from DIY, which had occurred during the day, on only one occasion. As set out in its ASB policy, the landlord would not be expected to take any action against the resident, concerning a report of him allegedly causing disturbance from loud DIY works taking place during reasonable hours. However, considering Neighbour A had also reported the smell of cannabis coming from the resident’s property, and that the resident’s TV had been on loud during the evening, it was reasonable for the landlord to contact the resident to notify him of the reports that it had received. It is appropriate that landlords raise reports about the behaviour of alleged perpetrators with them, to enable them to respond where appropriate, to take steps to change their behaviour, and to put things right.
On review of the landlord’s first warning notice to the resident, the Ombudsman notes that the landlord’s tone was informal, that it asked him to be mindful of his actions, and appropriately highlighted that it considered the reports as allegations. In the case of ASB, a report by one resident about another is not enough on its own to support any formal action, and the landlord’s procedures must ensure that it remains impartial and does not seek to apportion responsibility for behaviour until it has established the facts. Therefore, the Ombudsman is satisfied that the landlord’s initial response to receiving reports of the resident’s alleged ASB, was proportionate and appropriate in the circumstances.
The resident provided an explanation to the landlord regarding the smell of cannabis coming from his property, therefore, it was appropriate that the landlord took no further action on this element of Neighbour A’s complaint, and considered the matter resolved. The landlord would have only been expected to take further action if it continued to receive reports of the smell of cannabis. Additionally, as it had received no further reports relating to the resident’s alleged ASB, it was appropriate that the landlord closed its case against the resident in August 2020. As explained within the landlord’s ASB policy, cases are generally closed where there is no evidence to progress them and no further action can be reasonably taken.
it was not appropriate for the landlord to send a second warning notice to the resident. This is because the Ombudsman has seen no evidence to suggest that the resident’s alleged DIY works had been described by Neighbour A as persistent or that there was a pattern. Additionally, the first complaint received by the landlord, relating to the resident’s alleged DIY works was raised almost six months prior to the second complaint. In the Ombudsman’s opinion, the landlord’s decision to issue the resident with a second warning notice, based on two isolated reports, was premature and not in line with its ASB policy. Instead, the landlord could have asked Neighbour A to keep a record of the alleged nuisance in the form of noise diary sheets over the following weeks. This would have given the landlord a more informed picture as to whether the resident’s alleged DIY works were being carried out during reasonable hours, and whether the frequency and duration of the disturbance was enough to fall within its threshold for ASB.
Furthermore, the landlord had a responsibility to visit the resident’s property to establish if he was carrying out DIY works, as this was action it advised the resident it would take in its warning notice. Visiting the resident’s property would have demonstrated that the landlord’s overall assessment of the case was thorough and impartial, supporting any formal action that may have been necessary in the future. The landlord’s internal records show that its ASB and Neighbourhood teams agreed to visit the resident’s property, however, from the evidence, it appears as though a visit to the resident’s property never materialised. It is of paramount importance that when a landlord pledges to take a specific action, this is followed through to conclusion. The landlord’s failure to visit the resident’s property to establish whether he had been carrying out DIY works, undermined the purpose of its second warning notice to the resident, and would have understandably given the impression that it was only willing to consider Neighbour A’s account of events.
This impression was further indicated as the resident claimed that the neighbour who lived above him was the perpetrator of loud DIY works, however, the landlord stated it required more evidence to investigate further. In contrast, the landlord chose to inform the resident that other neighbours had been complaining about him, despite having carried out no investigations of its own to verify this. Given the landlord had been made aware of another alleged perpetrator and other potential neighbours affected by the loud DIY works, the Ombudsman would have expected the landlord to have visited and discussed the matter with all residents within the resident’s building. As such, the landlord’s second response to reports of the resident’s alleged ASB, was inappropriate, as it failed to take all reasonable steps to gather independent evidence to establish the facts of the case.
Turning to the notice itself, the landlord incorrectly stated within the notice that it had ‘witnessed’ the resident causing a disturbance. The Ombudsman notes that in an email dated 18 January 2021, the resident explicitly denied that he had been carrying out DIY works, and therefore, the landlord could not have witnessed him doing something he did not do. From the information provided to this Service, there is no evidence to demonstrate that the landlord considered the resident’s grievance about its use of the word “witnessed” in its initial response to the resident, dated 26 January 2021. It did not address or attempt to clarify what it meant. This understandably left the resident feeling frustrated and as though he was being treated unfairly. The Ombudsman appreciates that later, within its stage one complaint response, the landlord acknowledged its error for its choice of wording. However, it was unacceptable that it took the landlord 11 months to recognise its error. Still, it was appropriate that the landlord partially upheld the resident’s complaint and explained that it would remind its ASB team to be clear when writing notices to residents. This demonstrated that it was in acknowledgement of its error and sought to ensure that it would not happen again.
Despite the landlord’s explanation for its choice of wording, the Ombudsman notes that the resident remained dissatisfied, due to his assumption that the complaints being raised against him related to DIY works taking place during the night. This suggested to the resident that as the landlord only took calls during office hours, it could not have overheard DIY works during a telephone call. The landlord’s internal records do not reflect the resident’s assumption, and it appears as though this presumption may have been made, based on the resident’s own experience of hearing DIY works at night. In the Ombudsman’s opinion, the landlord should have gone further to clarify what it heard during its telephone conversation, and the time of day it heard the DIY works. This could have been outlined to the resident without compromising confidentiality and would have provided reassurance to the resident that its choice of wording was genuinely an error, with no intention or malice behind it.
The Ombudsman also notes that on four separate occasions the landlord highlighted to the resident that if he were carrying out extensive DIY works, he would require permission from the landlord to carry out such works. However, in the Ombudsman’s view, the landlord’s insistence on the resident requiring permission to conduct works, almost appeared redundant, as the landlord had failed to obtain any evidence to suggest that the resident needed to do this. While the Ombudsman notes that the landlord’s use of language within its correspondence was advisory, its repeated reference to the resident needing permission to conduct extensive works, suggested otherwise. Consequently, the resident has expressed to this service that he felt as though the landlord’s ASB team were stepping outside their remit to hold him accountable for something he was not doing.
Finally, the resident presenting as vulnerable due to his mental health conditions, would not prohibit the landlord from investigating complaints of his alleged ASB. Landlords should investigate ASB reports and seek to establish the facts even if the reports concern vulnerable residents. When considering taking enforcement action, the landlord would be expected to make enquiries with the resident to ensure that he had appropriate support available and suggest other organisations which may be able to offer support if the resident wished to access this. The type of enforcement action the landlord may take will vary and it would be expected to take into consideration any vulnerabilities when deciding what action to take. However, as the ASB case was at an informal stage, the Ombudsman is satisfied that the landlord’s overall approach with the resident was proportionate and appropriate in the circumstance, although as above it is acknowledged its communication could have been clearer and more appropriate. The landlord ultimately did not take any formal action against the resident.
As a resolution to his complaint, the resident has told this Service that he would like the landlord to terminate the employment of the staff member who sent him the second warning notice. The Ombudsman’s remedies guidance, which is published on our website, sets out our Service’s approach when seeking to resolve a dispute. While we have a wide range of discretion to suggest remedies, the Ombudsman cannot order a landlord to take disciplinary action against a member of staff or terminate their employment. This is because terms and conditions of employment are set out in a contractual agreement between the landlord and its staff, and it is for the landlord to decide if the matter we have investigated warrants such action. It is outside the Ombudsman’s jurisdiction to interfere with matters of employment.
Where there have been failings by the landlord which affected the resident, but there may be no permanent impact from the landlord’s errors, the Ombudsman’s remedies guidance states that landlords should offer residents a financial remedy of £100 to £600 to put things right. Based on the failings identified above, the landlord should pay the resident £200 compensation in recognition of his distress, time, and trouble caused by the landlord’s errors in its handling of the ASB allegations against him.

The landlord’s response to counter allegations of bullying and harassment made by the resident against his neighbour.

The resident reported to the landlord that he believed Neighbour B had made malicious allegations against him and that he was being bullied and harassed, in retaliation to him asking Neighbour B not to park outside his window. The landlord has explained that it had no record of the resident reporting that Neighbour B had been parking outside his window and had no other grounds to pursue the resident’s allegations further. The Ombudsman also appreciates that the resident incorrectly assumed Neighbour B had been the one raising complaints against him, and understands the landlord had a duty not to compromise Neighbour A’s confidentiality as the person who complained about ASB.
However, while the Ombudsman notes the landlord’s explanation for not pursuing the resident’s allegations further, there is no evidence to demonstrate that it relayed its reasoning to the resident, at any stage prior to the issuing of its stage two complaint response, which was 20 months after the resident’s initial report relating to Neighbour B. This was inappropriate. If the landlord was not going to pursue the resident’s allegations further, it should have informed the resident within an acceptable timeframe, that there was no reasonable action that could be taken to deal with his concerns, and it should have outlined the reasons for its decision. This could have been relayed to the resident without compromising confidentiality, as later demonstrated within its stage two complaint response. This would have been in line with its obligations set out in its ASB policy and would have demonstrated to the resident that it had reasonably considered his concerns. In the Ombudsman’s opinion, this shortcoming could have reasonably given the resident the impression that the landlord was biased against him and demonstrated a failure to comply with its own policies.
As such, the Ombudsman has concluded that there was maladministration by the landlord in its response to counter allegations of bullying and harassment made by the resident against his neighbour. In addition, the landlord failed to recognise its failings or offer redress to the resident, which, in the Ombudsman’s opinion, acknowledges the distress and inconvenience caused because of its actions.
Based on the Ombudsman’s remedies guidance the landlord should pay the resident £200 compensation for the distress and inconvenience caused due to its failure to comply with its own ASB policy, and for acting unfairly in its handling of this aspect of the resident’s complaint.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was:
1. maladministration by the landlord in its response to ASB reports made against the resident by his neighbour.
2. maladministration by the landlord in its response to counter allegations of bullying and harassment made by the resident against his neighbour.

Orders

Within four weeks of the date of this determination, the landlord is ordered to pay the resident:
1. £200 compensation in recognition of the resident’s distress, time and trouble seeking to present his side of events.
2. £200 compensation for the distress and inconvenience caused to the resident due to its failure to comply with its own ASB policy, and for acting unfairly in its handling of his reports of ASB.
The landlord should also provide the resident with an apology for the failings identified within this report.
The landlord should provide evidence of compliance with the above orders within four weeks of the date of this report.