Southampton City Council (202211765)

REPORT

COMPLAINT 202211765

Southampton City Council

29 November 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

1. This complaint is about the landlord’s handling of reports of antisocial behaviour in the resident’s neighbourhood.
2. We have also decided to consider the landlord’s complaint handling as part of this report.

Background

3. The resident is a secure tenant of the landlord. They live alone in a first floor flat in a block of flats. Beneath the resident’s flat is the garden of another ground floor flat in the same block. The resident has a balcony above the block’s bin storage area.
4. Between 2014 and 2016 the resident made reports of antisocial behaviour to the landlord like those in this complaint. These reports stopped in 2016 and the resident said this was due to a significant improvement. The events between 2014 and 2016 do not form part of this complaint but are useful to reference for the purposes of context.
5. The resident provided a diary of incidents to the landlord and this service. That diary says that between 23 March 2020 and 3 June 2021 there were 26 incidents characterised as antisocial behaviour. The main incident type was the kicking of a football into the underside of the resident’s flat. There was also 3 reports of abusive comments and 1 report of a garden hose being sprayed at the resident’s window. It was alleged that these acts were committed by the children resident in the flat below the residents, from the garden.
6. There is no evidence that the resident spoke to the landlord about the behaviour until 6 June 2021. They said that the behaviour had escalated and they wanted the landlord to speak to the neighbour. The landlord offered mediation between the parties, which was refused by the resident. The resident also expressed a concern that the neighbour would retaliate once it became known who made the complaint. The resident also wrote to a specific housing manager who had assisted previously with antisocial behaviour.
7. The landlord spoke with the neighbour in July 2021. It was denied that the incidents were targeted at the resident. The neighbour agreed to purchase a foam football to reduce any noise or damage from playing. The neighbour also agreed to mediation, although the resident did not.
8. The resident’s diary then records a further 7 reports of antisocial behaviour between 10 August 2021 and 12 September 2021. These incidents ranged from vandalism to the block to objects being thrown, or threatened to be thrown, onto the resident’s balcony. Again, it was alleged that the neighbour’s children committed, or were involved in, these incidents.
9. The resident’s solicitor wrote a letter to the landlord on 22 October 2021. Although we do not have a copy of that letter, we do have the landlord’s response from 10 November 2021. The landlord rejected the resident’s allegation that it did not take any action to prevent antisocial behaviour. It said that it had spoken to the neighbour, and a local Police Community Support Officer (PCSO) had spoken to the children. It said it would take action to prevent future vandalism to the bin storage area in the block. It would also continue to monitor the situation and was taking a “multi-agency approach” to antisocial behaviour in the area.
10. The resident logged a complaint with the landlord on 23 January 2022. They said that the issue had been trivialised as being about “children kicking a ball against my wall”. The resident said:
    1. The children did not have soft footballs as alleged.
    2. Damage had been caused to the underside of their flat.
    3. The behaviour was targeted and meant to intimidate.
    4. Mediation was an unreasonable solution.
11. The landlord acknowledged the complaint on 3 February 2022, but did not respond to the complaint until 8 March 2022. During this time the police were contacted in relation to another incident in which the resident said they were targeted. The landlord also visited the resident, although it is not clear what the outcome of that visit was.
12. The landlord’s response to stage 1 of the complaint said:
    1. The neighbour had been spoken to by the landlord and PCSOs in the area.
    2. The incidents described did not constitute harassment.
    3. It arranged a repair to the residents flat and the bin storage area.
    4. As mediation was not considered an option by the resident, there was little more it could do.
    5. It invited the resident to a community meeting to discuss policing priorities.
    6. It did not uphold the complaint as it had responded appropriately to all reports.
13. The resident replied to the stage 1 response on 20 March 2022. The resident only said that they were not happy with how the complaint was dealt with. The landlord considered this letter a request to escalate the complaint and wrote to the resident on 4 May 2022. It had appointed an independent investigator to consider the landlord’s response to the complaint. That investigator’s report was the landlord’s final response to the complaint.
14. The investigator said:
    1. It only considered 6 months’ worth of reports from the resident, starting from May 2021.
    2. The landlord took reasonable steps to investigate and respond to reports of antisocial behaviour.
    3. The action taken by the landlord was proportionate to the incidents raised and evidence available.
    4. The events were considered by the police not to amount to harassment and were considered by the landlord to be nuisance.
    5. There was no need to take further action against the neighbour.
15. The resident remains unhappy with the landlord’s response as they believe it trivialises the behaviour. The resident is also unhappy that the landlord did not consider events from before May 2021 in its complaint response. The resident wants more formal action to be taken by the landlord.

Assessment and findings

Antisocial behaviour

16. The landlord uses two definitions of antisocial behaviour (ASB) in its policy, based on relevant legislation:
    1. The Crime and Disorder Act 1998 defines ASB as behaviour which causes or could case “harassment, alarm or distress” to persons.
    2. The Housing Act 1996 defines ASB as “housing-related conduct capable of causing a nuisance or annoyance to another person”.
17. The policy lists several preventative and early intervention measures the landlord has available to it. The intention of these is to prevent the need for formal tenancy or legal action. It includes:
    1. Neighbourhood wardens.
    2. Diversionary projects, such as a junior warden scheme.
    3. Neighbourhood projects, such as environmental improvements.
    4. Mediation services.
    5. Warning letters.
    6. Behaviour and parenting contracts.
    7. Multi-agency approaches.
18. The resident first reported alleged antisocial behaviour in 2015. The behaviour improved some time in 2016 and the resident did not report further incidents until 2020. We do not think that the behaviour is a continuation or recurrence of that reported in 2016. This is because significant time has elapsed since then. It seems that the issue was resolved at the time and, although the alleged perpetrators are the same, it was very different circumstances in 2020 due to COVID-19 and related restrictions. As such we have not considered the reports from 2015-16 to be part of this complaint.
19. The landlord’s first action when reviewing allegations of antisocial behaviour is to interview the relevant parties and identify any evidence available. The landlord’s policy says it would then complete a risk assessment, although we do not have evidence of one being completed in this case. The resident provided diary sheets to the landlord as evidence and the landlord arranged to speak to the neighbour. Normally, the landlord would also initiate mediation between the two parties as most behaviour is not known to cause a nuisance until it is reported. In this case the resident refused mediation as they said it had gone on too long for mediation to be useful. It does not appear that the landlord revisited this option or considered other opportunities to resolve the matter in a similar fashion.
20. The neighbour accepted some of the comments by the resident and took action to reduce the disturbance, such as speaking to their children and purchasing a foam football. The neighbour also agreed to engage in mediation. Under the landlord’s procedure, there are 2 reasons why this may be sufficient for it to take no further action:
    1. The case is a ‘One on One’ lifestyle/and/or personality driven dispute and both parties have been advised of appropriate strategies to manage dispute (including mediation) or gather evidence and informed that there is currently no role for the Housing Office.
    2. A party has acknowledged their behaviour in the ASB and/or dispute but has given assurances that they will change the behaviour for which they are responsible.
21. The resident continued to report incidents of footballs being kicked at their wall and allegations of vandalism and harassment indicating that the promises to change the behaviour had not been successful. The police and the landlord jointly responded by speaking to the resident’s neighbour and other families in the block. However, there is no evidence that the landlord created a wider action plan to address the nuisance identified.
22. The police determined there was insufficient evidence to conclude that a criminal offence had taken place, where they could identify a perpetrator. As the such the landlord said that it did not have any grounds to take further tenancy action. We think this was unreasonable. Although the police did not have sufficient information to investigate a criminal offence, this did not prevent the landlord from investigating behaviour which may not reach the threshold for criminal proceedings.
23. The landlord acknowledged that the resident felt targeted by the behaviour and offered visits from it and the police. It also offered to fix any damage to the resident’s flat and the bin storage area. However, it said very early on in the process that it did not intend to take formal tenancy action against the alleged perpetrators. This effectively meant that it was not willing to do what it took to stop the behaviour. It is reasonable that the resident would have felt abandoned by such a statement.
24. That evidence shows that the landlord was engaged in efforts to reduce antisocial behaviour in the area. It shows that the landlord was heavily engaging with the police and other agencies. The landlord asked the police to increase patrols in the area as a deterrent. While some of these may not be directly related to the resident’s complaint, it does show that the landlord did not intend to trivialise or minimise antisocial behaviour.
25. In some individual cases, specific action was taken, such as issuing warning letters and community resolution notices. However, in the resident’s case, there is no evidence of any action being taken above and beyond an offer of mediation. The landlord had a number of other tools at its disposal which it did not explore. This is potentially related to its decision that formal action was not necessary, but as we already said that was unreasonable.
26. It is not this service’s role to determine whether a landlord should take specific enforcement action against another resident. We must determine whether the landlord fairly and reasonably responded to the resident’s concerns, in line with its own policy and good practice. The landlord acknowledges that the resident felt harassed by a neighbour’s behaviour. This should have meant that it created a detailed action plan where the goal was to stop the behaviour. The plan it created however was simply to monitor the behaviour and act if it escalated.
27. Low-level ASB which takes places over a long period of time has the potential to create real distress for residents. While it may never escalate, this does not lessen the distress. It also does not prevent a landlord from acting. As the landlord had additional opportunities to address the ASB, which it did not take, we have found maladministration in the landlord’s behaviour.

Complaint handling

28. The landlord’s complaints policy states the landlord will investigate any complaint made within 12 months of the event. It uses a 2-stage process as follows:
    1. Stage 1
       1. Investigated by local manager.
       2. Response within 20 working days of receipt.
    2. Stage 2
       1. Investigated by either a specialist team, or an independent panel.
       2. Response within 20 working days of receipt.
29. The landlord accepted stage 1 of the complaint on 23 January 2022. However, the landlord received a letter from the resident’s solicitor on 22 October 2021. Based on the nature of the allegations and clear dissatisfaction by the resident, we think it would have been appropriate to consider that letter a complaint. Alternatively, if it was unsure, the landlord could have asked the resident if they wished to make a complaint. Failing to do this led to a delay in responding to the resident’s concerns. When the landlord did respond to the resident, the response was reasonably complete, although the resident remained unhappy with the response.
30. The stage 2 complaint was investigated by a complaint handler independent of the service area complained about. The complaint handler was not named by the landlord, which we think is unreasonable. Landlords are expected to be reasonably transparent in their dealings with residents. Not divulging the name or substantive role of the independent investigator could lead to a lack of trust in the process and response.
31. The investigator at stage 2 also declined to review events prior to May 2021, which was 8 months prior to the complaint. This is not in line with the landlord’s own policy, which sets a limit of 12 months. The Complaint Handling Code also says that complaints should be raised within 6 months of the event occurring which has been complained about. The resident’s complaint was regarding the landlord’s response to antisocial behaviour, not the behaviour itself. The landlord was still investigating and responding to the antisocial behaviour and the fact that it had been ongoing for over 18 months would not affect the complaint’s eligibility.
32. Based on the failure of the landlord to log a complaint when it was first raised, and its failure to fully investigate the complaint at stage 2 of its procedure, we have found maladministration in the landlord’s complaint handling.

Determination

33. In accordance with paragraph 52 of the Housing Ombudsman Scheme, we have found maladministration in the landlord’s handling of reports of antisocial behaviour.
34. In accordance with paragraph 52 of the Housing Ombudsman Scheme, we have found maladministration in the landlord’s complaint handling.

Orders and recommendations

Orders

35. The landlord is hereby ordered, within 4 weeks of the date of this report, to pay £300 to the resident. This is broken down as:
    1. £150 for the failures identified in the landlord’s application of its ASB policy.
    2. £150 for the failures identified in the landlord’s complaint handling.

Recommendations

36. The landlord should share the findings from the report with relevant staff to ensure:
    1. Its ASB policy is strong enough to tackle low-level ASB, as well as that which may escalate.
    2. Its policy matches what happens in practice.
    3. It does not exclude complaints about ongoing issues simply because they started more than 6 months ago.