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Westminster City Council (202320571)

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REPORT

COMPLAINT 202320571

Westminster City Council

10 September 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

  1. The complaint is about the landlord’s handling of the resident’s antisocial behaviour (ASB) reports.

Background

  1. The resident has been a secure tenant of the landlord since 12 November 2012. He lives alone in the property which is a studio flat in a block.
  2. The resident had made numerous reports of noise nuisance and ASB over the previous 10 years. This included multiple reports against his next-door neighbour over the previous 3 years.
  3. The resident reported noise nuisance from his neighbour to the landlord on 6 occasions between 25 September and 26 October 2022. The landlord opened an ASB case and suggested that the resident apply for a community trigger (now known as an ASB case review). The resident made at least 11 further reports of noise nuisance to the landlord over the next few months. The neighbour made counter allegations and there was 1 incident where police attended. On 24 May 2023, the resident told the landlord the issues had ceased and the landlord closed the case.
  4. The resident made further reports of noise nuisance between June and August 2023. On 7 September 2023, the police attended an incident after the resident reported that the neighbour was verbally abusing him. The landlord opened a new ASB case.
  5. The resident lodged a stage 1 complaint on 11 September 2023. He raised historical ASB reports made over the previous 10 years and said he was unhappy with how the landlord had handled them. He felt the landlord did not take his ASB concerns seriously and had continuously failed to resolve the issues. He said the situation had affected his health and he had been prescribed medication to cope with it. He made a community trigger application on 14 September 2023.
  6. The landlord provided its complaint response on 21 September 2023.  It said it had taken appropriate actions in response to the recent ASB reports and that it would continue to investigate. The response explained that the landlord would use legal enforcement when there was sufficient evidence to do so. It also mentioned that, while it had not been able to progress the resident’s community trigger applications in relation to ASB cases in the past, the recent one had met the criteria and would be progressed.
  7. On the same day the public protection and licensing team contacted the resident to discuss the community trigger. They agreed with the resident to put it on hold as the resident wanted the Ombudsman to investigate the case first, although it had not been formally referred to us at that time. The resident also escalated the complaint to stage 2 that same day. He was dissatisfied that the landlord had not fully addressed the historic ASB issues and had not reassured him that it was going to take and enforce any action to prevent further ASB.
  8. The landlord responded on 13 October 2023. It reiterated that it had taken all necessary actions on the historical ASB cases and had been unable to take further action due to insufficient evidence and the resident’s lack of engagement. It listed the actions it had taken on the current ASB case, including weekly contact with the resident and providing and offering support for him to use an app to capture noise nuisance. It also said it would meet with him to discuss his concerns and would maintain weekly contact. The landlord acknowledged the resident’s frustration with the process and said it would meet with him to discuss his concerns, keep the case open and continue to investigate the allegations. It also advised the resident that he was on the housing register and could bid for another property, and that he could also look for a mutual exchange.
  9. The complaint was formally referred to the Ombudsman on 19 April 2024. The resident said he had been referred to psychotherapy for trauma from having to deal with the situation for so long. He said that the stage 2 response still did not address the long-term ASB and had not told him what measures were being taken to prevent the neighbour from being abusive again, which is what he would like the landlord to do as a resolution.

Assessment and findings

Scope of investigation

  1. Paragraph 42c of the Scheme states that the Ombudsman may not consider complaints that were not brought to the landlord’s attention within 12 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 has a reasonable opportunity to consider the issues whilst they are still ‘live’ and while sufficient evidence is available for it to reach an informed conclusion. It is more difficult for landlords to investigate less recent matters as over time, records are less likely to be available, witness statements and testimonies become less reliable, and it becomes more difficult to verify accounts.
  2. In the resident’s complaint to the landlord and this Service he said he wanted the history of ASB reports over the past 10 years to be taken into consideration. Considering paragraph 42c as well as the availability and reliability of evidence, this investigation has primarily focused on the landlord’s handling of the resident’s ASB reports from 25 September 2022 onwards that were considered during the landlord’s recent complaint responses.
  3. Paragraph 42f of the Scheme states that the Ombudsman may not consider complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.
  4. The resident stated in his communication with the landlord and this Service that the ASB had affected his health. While the Ombudsman is sorry to hear of his concerns, it is beyond the expertise of this Service to determine a causal link between the landlord’s actions (or lack thereof) and the impact on the resident’s health.
  5. When there is a dispute over whether someone’s health has been affected, the courts are often able to rely on expert evidence in the form of a medico-legal report. This will give an expert opinion of the cause of any injury or effect on health and wellbeing. Considering paragraph 42f, this would be a more appropriate and effective means of considering such an allegation and so should the resident wish to pursue this matter, he should do so via this route. This investigation will only consider whether the landlord acted in accordance with its policy and legal obligations, and fairly in the circumstances.
  6. It is important to note that it is outside the Ombudsman’s remit to establish whether the reported ASB was occurring or not. Rather, our role is to determine whether the landlord’s response to the resident’s reports of ASB was in line with its legal and policy obligations and whether its response was fair in all the circumstances of the case.

The landlord’s handling of the resident’s ASB reports

  1. The resident contacted the landlord’s noise team 6 times between 25 September and 26 October 2022 to report that the neighbour was playing loud music, shouting and banging doors late at night. The landlord followed up on each report the same night but by the time they responded, either the noise had ceased or the resident did not respond their calls. This meant the landlord was not able to witness the noise.
  2. When the resident reported on noise on 9 October 2022 he told the landlord he had been dealing with noise and ASB from the neighbour for 3 years, which was affecting his sleep and his health. The landlord’s ASB policy says it aims to respond to ASB reports within 24 hours. It is unclear from the evidence the landlord provided to us when it first responded to this report. It is vital that landlords keep comprehensive records of all contact with residents so there is a clear audit trail. This makes it easier for landlords to identify and respond to problems that arise and enables the Ombudsman to clearly understand the timeline, the landlord’s actions, and its decision-making.
  3. The ASB policy says when the landlord opens a case it will:
    1. Assign a named case officer.
    2. Complete a risk assessment.
    3. Consider what support the resident might need, such as referral to other agencies and providing emergency contact details.
    4. Agree an action plan with the resident on how the case will be dealt with.
  4. The landlord completed these actions in line with the policy and confirmed the action plan in writing to the resident on 26 October 2022. The plan said the landlord would maintain weekly contact with the resident, contact the Safer Neighbourhood Team (SNT), offered a support agency referral and asked the resident to continue to report any further incidents. However, the policy also says that the landlord should contact an alleged perpetrator swiftly. It would have been reasonable for the landlord to contact the neighbour at this point to put the noise reports to them rather than waiting until it interviewed them 3 weeks later on 15 November 2022.
  5. The landlord also suggested that the resident apply for a community trigger. This is a multi-agency case review that residents who have reported persistent ASB can ask for. Considering the history of ASB reports this was an appropriate action for the landlord to take.
  6. The landlord kept in regular contact with the resident throughout November 2022. The landlord interviewed the neighbour on 15 November 2022, who denied the allegations. On 25 November 2022 the resident told the landlord the police had visited him the previous day as the neighbour had reported him for shouting and swearing at them, which he said was not true. The landlord confirmed that the neighbour had made a counter allegation of harassment and intimidation against the resident. It sent the resident a nuisance diary sheet, its ASB FAQs and instructions on how to use the noise app. Again, while this was appropriate action to take it is unclear why the landlord did not do this when it first opened the case, especially considering the history. Taking these actions at the outset would have maximised the chances of gathering evidence.
  7. On 28 November 2022 the resident said he was willing to engage in mediation. He made 3 further noise nuisance reports in early December 2022. On 15 December 2022 the landlord contacted 10 other residents of the block to ask if they had experienced any noise nuisance or ASB. None reported any issues. This was an appropriate action to take in line with the ASB policy.
  8. The landlord told the resident it would take action against the neighbour if there was enough evidence but as it stood, the neighbour had denied the allegations and there were no other witnesses. It asked the resident to continue using the noise app. The resident doubted that any recordings would be up to the level of a statutory nuisance but said the noise was loud enough to wake him regularly and he was then unable to get back to sleep. This Service recognises that the landlord would have been limited in the action it could take against the neighbour, given that the noise was not loud enough to be a statutory nuisance. Its advice to the resident was therefore reasonable, however it could have been clearer about its powers in this respect to manage his expectations.
  9. The landlord confirmed an action plan in writing on 16 December 2022 which included fortnightly contact, that the landlord would request a police disclosure and assess the evidence to decide what action was possible and advised the resident to continue using the noise app and reporting any incidents. It also gave him emergency contact details. This was appropriate and in line with the ASB policy.
  10. The landlord interviewed the neighbour twice more on 16 and 20 December 2022. They denied the allegations and said the resident’s behaviour towards them was harassment. The landlord suggested mediation and the neighbour was open to this but the landlord did not take steps to arrange it. This was a failure on the landlord’s part. Mediation can be an effective tool in ASB cases to resolve disputes or stop them from escalating. The resident had also said he was open to mediation so it is unclear why the landlord did not go forward with it, particularly as its ASB policy states that the landlord should consider mediation as an option.
  11. The resident reported noise 6 more times between late December 2022 and early January 2023. He sent the landlord a recording on 9 January 2023, which was not made on the noise app. The landlord confirmed it could hear loud music but as it was not recorded on the app it could not determine the actual volume or evidence the date and time it was recorded, which is crucial for it to be used as evidence. It gave the resident an email address he could contact if he needed support using the noise app. This was appropriate advice.
  12. The landlord spoke to the resident on 24 May 2023 who said the noise nuisance had ceased so the landlord closed the ASB case down. This was an appropriate action to take since the problems were no longer occurring.
  13. On 14 June 2023 the resident reported that the neigbour had been on the phone shouting throughout the night until 6.35am with the balcony door open. It had woken him up and kept him awake for 2 hours. The landlord opened a new case and did a risk assessment. It tried to contact the resident on 19 June 2023 – outside of its 24-hour response time – but was unsuccessful. It attempted contact 3 more times between then and 3 July 2023 but got no response so it wrote to the resident and said it would close the case by 7 July 2023 if there was no contact. It gave him the details for how to make new reports or report an emergency or criminal behaviour. This was reasonable and in line with the ASB policy.
  14. The resident reported loud music and shouting from the neighbour at 1am on 25 August 2023. On 6 September 2023 the landlord sent the neighbour a warning letter and reminded them of their obligations as a tenant and the possible consequences of ASB. On 7 September 2023 the resident reported another incident. He said the neighbour had shouted abuse and foul language at him from their balcony and then knocked on his door. The resident called 999, the police attended and said they would refer the case to SNT. The resident said he thought the incident was in response to the landlord contacting the neighbour about the noise nuisance and he did not feel safe in his home. The landlord reassured him it had kept him anonymous. The resident had managed to record part of the verbal abuse and sent the recording to the landlord. The police confirmed to the landlord that they had attended.
  15. The landlord said it would write to the neighbour and arrange another interview. The resident felt that by the time this happened the momentum would be lost. In the Ombudsman’s opinion, this was a valid point. There had been a long history of issues between the neighbours which had clearly escalated. The landlord should have acted swiftly and contacted the neighbour much more quickly to put the allegations to them and hear their version of events. It could also have sought to arrange mediation. Acting more promptly would have helped reassure the resident and made the neighbour aware that the landlord was taking the situation seriously. It also would have enabled the landlord to gather evidence at the earliest opportunity.
  16. The landlord offered a referral to Victim Support which the resident declined. The landlord opened a new ASB case and action plan which included weekly/fortnightly contact, interviewing the neighbour and asked the resident to send recordings of any further incidents. The police responded and confirmed they had closed the investigation. These were reasonable actions on the landlord’s part and in accordance with the ASB policy.
  17. The resident lodged a stage 1 complaint on 11 September 2023. As well as being unhappy with how the recent and historical ASB had been handled, he said he wanted the landlord and police to prosecute the neighbour and serve an antisocial behaviour order (ASBO) or to tell him how they were going to prevent ASB incidents from happening again. He also wanted the landlord to review his housing situation which had become detrimental to his mental and physical health.
  18. On 12 September 2023 the resident reported that the neighbour had been screaming and shouting on the phone with the balcony door open for over an hour. They had then called at his door shouting and insulting him. He called 999 and police attended. The landlord offered to meet with the resident that day, which was an appropriate response time, and said that it would meet with the neighbour the following week. Again, a swifter response would have been more appropriate considering that police had attended again.
  19. The landlord gave the resident the name of the SNT officer who was investigating the case and explained to the resident that the landlord would investigate alongside the police. It also explained that if the neighbour was convicted the landlord could use that against them and that without a conviction, the landlord could take action only if its legal team deemed the evidence to be sufficient. The resident appreciated this explanation which he said the landlord had not given him before. This illustrates the importance of landlords being clear in their explanations to residents about their processes and what they can and cannot do.
  20. In relation to the need for evidence, the resident said he had already provided 2 recordings. The landlord missed an opportunity here to clearly explain why this was not enough. One recording of noise was not made on the noise app and so could not be used, and the other recording was just one incident of verbal abuse. The resident seemingly did not understand why his evidence was not sufficient. The landlord should have explained that 1 incident of verbal abuse did not meet the threshold required by the courts for legal action and that non-legal actions such as written warnings were reasonable and proportionate. The resident may not have agreed with this but would have been at least aware that the landlord was unable to take further action rather than believing that it was refusing to do so unreasonably.
  21. On 14 September 2023 the resident made a community trigger application. On 21 September the landlord responded to the stage 1 complaint. The response said that the landlord was satisfied it had responded to the ASB reports appropriately. It also explained that the previous community trigger applications had not been accepted as they did not meet the criteria but the recent one had, and the public protection and licensing team would contact the resident with further details.
  22. While it mentioned the previous community trigger applications the response did not fully address the resident’s complaint about the historical ASB. The landlord’s complaints policy states that the landlord will not accept complaints about matters that are more than 12 months old and that if it does not accept a complaint the landlord will explain why. The landlord was not obligated to address the historical issues in its response, however it failed to explain why, which was not appropriate.
  23. The response explained the importance of evidence and using legal enforcement when it is proportionate to do so, which was positive. However, it did this in general terms rather than explaining to the resident exactly why it could not take action against the neighbour. It could have explained clearly what it could and could not do, for example, that it had no power to prosecute the neighbour or serve an ASBO regardless of evidence as that is the remit of the police. This would have managed the resident’s expectations and reassured him that the landlord was acting in accordance with its policy and legislation and not being dismissive of the matter.
  24. The landlord also did not address the concerns the resident had raised about his health. The resident raised this in the stage 1 response and on many other occasions. The landlord should have advised the resident on how he could make a personal injury claim or a claim against the landlord’s liability insurance.
  25. The resident was dissatisfied with the response and escalated the complaint to stage 2 on the same day. His escalation email said that the landlord had continually failed to act and implement any sort of solution for the long term ASB and that he had experienced aggressive, threatening and abusive behaviour from 2 consecutive tenants of the next door flat. He believed the landlord was treating the current case as a lesser offence due to the neighbour having “issues”. He wanted the landlord’s response to address the historical cases and to reassure him that the landlord would take and enforce some kind of action if the neighbour’s behaviour continued.
  26. The landlord acknowledged the stage 2 complaint on the same day. On 21 September 2023 the resident agreed with the community protection team to put the community trigger on hold pending the outcome of an Ombudsman investigation. Although the resident had been in touch with us at that time, he had not formally referred the case to us for investigation as it had not completed the landlord’s internal complaints procedure. While it was not the landlord’s decision to put it on hold, it should have advised the resident and the community protection team that the case had not yet been referred to the Ombudsman and so there would not be an outcome any time soon. Even if it had already been formally referred to us, investigations can take up to 12 months so actions that can help to resolve a resident’s issue should not be put on hold unless the resident actively chooses this.
  27. On 22 September 2023 the landlord contacted police and asked if they would support a management transfer. The police agreed and the landlord said it would send the police the relevant paperwork at the right time. A legal advice centre contacted the landlord on 26 September 2023 asking it to consider moving either the neighbour or the resident. The landlord said it would consider this and incorporate it into the stage 2 response.
  28. On 5 October 2023 the landlord told the resident it had given the neighbour a warning for verbal abuse and they had made a counter allegation against the resident. The landlord responded to the stage 2 complaint on 13 October 2023. The response mentioned that the resident was on the housing register for a transfer to a 1 bed property and that the resident should also look for a mutual exchange. However, it did not mention the option of a management transfer. The landlord had obtained police support with this but it is unclear whether it ever discussed it with the resident. The landlord should ensure it has properly considered this option in accordance with the relevant policy.
  29. On 23 October 2023 the resident reported that on the previous day the neighbour had been talking on the phone shouting about “no good people who live in this block” which he thought was directed at him. He did not want to make this an official report. The landlord said it could not be proven that the neighbour was talking about him and it technically encompassed the whole block but it was happy to discuss it with them. The resident said the landlord was downplaying it and it was obviously directed at him. The landlord’s advice was reasonable. Although it did not consider the incident to meet the threshold of ASB it offered to speak to the neighbour anyway which shows it was taking the history and context of the case into consideration.
  30. On 27 November 2023 the landlord said as there had been no further reports would close the case in 14 days if this remained the case. The resident confirmed there had been no new incidents. After checking in one more time the landlord closed the case on 14 December 2023.
  31. While the landlord maintained good contact with the resident throughout, the Ombudsman’s finding is that there were some service failures. The landlord did not consider all options at its disposal such as mediation or a management transfer and should have intervened more quickly after the more serious ASB reports.
  32. The landlord also could have at least considered the use of noise monitoring equipment to help the resident capture the noise nuisance. Given the number of reports made, the noise team being unable to witness it and the resident repeatedly saying that it was difficult to capture the noise himself, it could have helped the landlord to gather evidence and alleviated the resident’s frustration.
  33. The landlord also should have been much clearer when explaining to the resident why it could not take further action. The resident clearly felt let down by the landlord and while the outcome may have remained the same, ensuring he fully understood the landlord’s powers and the thresholds for ASB and evidence may have gone some way to repairing the relationship between the landlord and resident.
  34. Considering these service failures the landlord should pay the resident compensation to reflect the distress and inconvenience he experienced, as well as the time and trouble spent progressing his complaint. The Ombudsman considers £250 to be an appropriate amount of compensation in this case. This reflects the landlord’s compensation policy which states it will pay up to £250 compensation for service failures resulting in a low impact on the resident.
  35. The finding of service failure as opposed to maladministration and the level of compensation does not mean the Ombudsman thinks the resident’s concerns were insignificant. Rather that, overall, the service failures that were identified did not significantly affect the outcome of the case. A finding of service failure is still a level of maladministration.

Determination

  1. In accordance with paragraph 52 of the scheme there was service failure in relation to the landlord’s handling of the resident’s ASB reports.

Orders

  1. Within 4 weeks of the date of this report the landlord is ordered to: 
    1. Pay the resident £250 compensation for the identified failures in handling the ASB.
    2. Provide the resident with details of its liability insurance so he can make a claim if he wishes to do so.
    3. Contact the resident to discuss any current ASB/noise issues. If there are any, agree an action plan including timescales. The landlord should ensure to consider all available options, including mediation, the potential for a management transfer, and noise monitoring equipment. It should also consider reopening the community trigger application if the criteria are still met. If the landlord decides any of these options are unsuitable it should explain why in writing. The landlord should provide a copy of the action plan and any written explanations to the resident and this Service.
  2. The landlord must provide the Ombudsman with evidence it has complied with these orders within 4 weeks of the date of this report.

Recommendations

  1. The landlord is recommended to review its staff training in relation to its ASB policy to ensure that it responds to ASB reports in the appropriate timescales and considers all appropriate options for intervention.