Islington Council (201912304)

REPORT

COMPLAINT 201912304

Islington Council

23 June 2021

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 complaints are about the landlord’s response to the resident’s:
1. Reports of antisocial behaviour (ASB) prior to March 2020.
2. Concerns that landlord staff had behaved in a racially motivated manner.
3. Reports of ASB from March 2020 onwards.
4. Formal complaint.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, complaints a and b as set out above are outside of the Ombudsman’s jurisdiction.
It is noted that the resident has raised concerns about how her reports of ASB since 2018 have been responded to. However, paragraph 39(a) of the Housing Ombudsman Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale.
From the evidence that has been provided to the Ombudsman, the landlord reviewed and considered ASB reports that it received from March 2020 as part of its stage two complaint consideration. ASB reports prior to this were not investigated by the landlord as part of this complaint, and as such have not exhausted the landlord’s complaints procedure. It follows that the Ombudsman cannot investigate reports prior to March 2020 as part of this complaint. Events prior to March 2020 have been summarised below, for context.
The resident’s concerns that landlord staff have treated her differently owing to her race are acknowledged. While the Ombudsman does not seek to dismiss the resident’s concerns, this is not a matter that we can investigate. The Ombudsman’s role is limited to investigating housing related matters and whether a landlord has complied with its duties and obligations under a tenancy agreement or any relevant policies. If the resident has concerns that she had not been treated fairly owing to her race, this would be a matter for the courts to consider under the provisions of the Equality Act 2010.
Paragraph 39(i) of the Scheme states that “the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion 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. It follows that the resident’s complaint that landlord staff have behaved in a racially motivated manner falls outside of the Ombudsman’s jurisdiction.

Background and summary of events

The resident is a tenant of the landlord’s property. The property is a two-bedroom basement flat. The resident has occupied the property together with her daughter since 2006.

The landlord’s ASB procedure and case management policy

The landlord’s ASB procedure (the procedure) sets out the steps that should be followed when dealing with cases of ASB or harassment.
It states that on receiving a report, it has a commitment to communicate with the reporter via their preferred choice of communication. Following the report, ASB officers will be expected to make a decision as to whether it is a serious case of ASB and an assessment must be undertaken.
If criminal activity is involved and they have not already done so, the reporter will be advised to contact the police.
The procedure states that when investigating a case of ASB, the officer must remain open-minded and objective. Action must be taken on the basis of evidence. Cases are investigated and legal action considered and taken on the balance of probability.
In addition to the landlord’s ASB team investigating the report(s), the procedure details some steps that the reporting party may wish to take. These include – speaking to the neighbour, keeping an ASB diary, collecting evidence, providing supporting witnesses, agreeing to install noise recording equipment and agreeing to participate in mediation.
Where there is insufficient evidence, the procedure stats that the ASB officer should write to both parties informing them that no further action will be taken but that the situation will be monitored. The length of time for monitoring will depend on the circumstances of the case. If no further incidents are reported, the case will be closed.

The landlord’s corporate complaints policy

The landlord’s policy sates that it will strive to deal with complaints impartially, objectively and professionally.
The landlord operates a two-stage complaints procedure. The first involves an investigation and local review by the service area in which the complaint originated. The second stage of the procedure is the Chief Executive’s stage.
In terms of timescales, the policy states that a stage one review should be acknowledged within 3 working days, and completed within 10 working days. Complaints received at the Chief Executive stage should be responded to within 28 calendar days of receiving the complaint.

Summary of events

In November 2019, a new ASB case was opened after the resident notified the landlord that she was still being disturbed by noise nuisance. The resident agreed to have a noise recorder installed at the property, to try to capture noise emanating from her neighbour’s property (Flat A). The landlord advised that there was a six-week wait for the equipment; and in the meantime, the resident continued to report instances of noise nuisance.
In December 2019, the resident wrote to her local MP – copying in the Ombudsman Service. She said that the landlord had ignored the issues she had reported; and that the situation was affecting her health.
Communication between the resident and the landlord continued with a view to arranging a meeting where the issues could be discussed in detail. A meeting could not be arranged, and the landlord informed the resident’s MP that in order to take things forward it would need the resident to engage with the ASB team.
Meanwhile, in January 2020, the landlord contacted the resident in relation to posts she had made on social media which described the situation with the residents of Flat A. In response, the resident advised that she could have been talking about anyone in her post; and that she had a right to use social media to voice her concerns. The landlord advised that it would be monitoring the situation.
On 14 February 2020, the noise recorder was installed at the property. It was collected after a week. On 24 February, the resident emailed the landlord to advise that since the equipment had been collected, the noise emanating from Flat A had been “non-stop”. The resident expressed her concern that Flat A had been “tipped off” that they were being recorded.
The landlord responded on 5 March. It said that it was unlikely that Flat A had been told about the equipment being installed as this would have constituted a breach of data protection rules. However, the officer said that she was sorry that the noise had started again and asked if the resident could obtain recordings using her phone. She added that the flat had been inspected and was found to be carpeted in accordance with the tenancy agreement. Discussion had also taken place with the occupants of Flat A about the noise disturbances that the resident had reported.
In February 2020, the resident raised a complaint and specifically asked for copies of information that the landlord held about her. She also requested a “right to rectification”, and the “right to be forgotten”. The landlord treated the matter as a request for information under the Data Protection Act 2018 and responded accordingly. Some of the resident’s concerns about information relating to her were responded to in a stage one complaint response dated 17 March 2020.
At the beginning of May 2020, the resident emailed the landlord to detail ASB incidents which had occurred since the start of the Coronavirus lockdown. She said that the noise emanating from Flat A was repetitive, occurred at an unreasonable hour and could be heard despite her closing the windows to her own property and trying to drown the sound out. The resident added that she had a new fence erected in May 2018, and that the occupants of Flat A had started to damage this.
The landlord responded on 4 June to advise that it had not been able to access all of the recordings the resident had provided. Nevertheless, it said that:
1. The recordings were made during daytime hours. While there was noise transference, it had not heard any recordings which would be classed as ASB. It provided an example of one recording sounding like the neighbours were hoovering their floor – the landlord added that they were entitled to do this.
2. It would ask the neighbour to be mindful when pouring water in their garden so that it did not flow into the resident’s garden. However, it said that there was no evidence that the resident would be affected by the water – even if it was poured from the paddling pool.
3. The occupants of Flat A had made counter allegations of harassment. In one of the resident’s recordings, loud music could be heard. Flat A had reported that the resident had been playing loud music – some of which had offensive language – and they did not wish for their children to hear this. The landlord added that if the resident was playing loud music, she must refrain from doing so.
4. Flat A had alleged that the fence which had been erected had taken part of their garden and this matter was being investigated by the Housing team.
On 28 June, the resident emailed the landlord. In her email, she alluded to unsuccessful attempts to try to contact the ASB team, and explained that she was therefore writing to detail a number of incidents of ASB from 25 May 2020 to 28 June 2020. This included instances of noise nuisance, water from a paddling pool being tipped into her garden, and the residents of Flat A talking about her to residents occupying a neighbouring property (Flat B). The resident raised particular concerns about an incident with one of the residents of Flat B. She said that the neighbour questioned her about privacy netting she had installed in the garden; however, she did so in an aggressive manner and subjected her to verbal abuse. In her email, the resident expressed her concern that the actions of her neighbours were racially motivated, and that despite previous reports, the landlord had not taken any action. She therefore wished for a senior member of staff to consider her reports and deal with the matter accordingly.
In an email dated 10 August, the landlord informed the resident that it was having difficulty viewing one of the files she had shared. It asked if this could be uploaded on a file sharing stie so that it could be viewed accordingly. It was added that the resident’s main issues appeared to be with Flat B – and it had not recorded any problems with that neighbour previously.
Later that day, the resident subsequently contacted a member of Victim Support and her MP to advise that she did not consider that the landlord was taking her reports seriously. She said that she had not received a proper response to her email of 28 June, and previous information that she had uploaded to the file sharing site had not been opened.
The resident subsequently competed paperwork to activate the community trigger as she considered that the landlord had taken no action in response to her reports. However, from the evidence that has been provided to the Ombudsman, it is not clear if the threshold was met, whether a review was undertaken or whether any recommendations were made. It is noted that the Community Safety Officer did contact the landlord to advise that he would be monitoring the situation.
In September 2020, the resident raised her concerns with this Service. We wrote to the landlord to advise that the resident wished to make a formal complaint about how it had responded to her reports of ASB.
The landlord wrote to the resident on 30 September 2020. In its letter, it summarised that its understanding was that the resident was unhappy with how it had handled her reports of ASB against her neighbour; and how it had handled her formal complaints. In response to the resident’s concerns, the landlord said:
1. A stage one complaint dated 17 March 2020 identified no service failures, and was not upheld.
2. Since then, its ASB Team had responded to “all the logged reports” the resident had made about her neighbours. Its responses had been in line with its Housing and ASB policy.
3. It received three reports of ASB between May and August 2020 and each was logged with the ASB Team as part of its ongoing case.
4. Enquiries were received from the resident on 6 July and 4 August, and these were responded to within 10 working days – in line with its service level agreements.
5. It had not located any complaints about its handling of the resident’s reports, and the raised complaints appeared to be about her neighbours.
6. It had not found any evidence of service failures and therefore did not uphold the complaint.
7. The resident could appeal the decision if she wished.
Through October, the landlord and the resident were engaged in discussion about the fence. The resident had requested that it be replaced by the landlord given her concerns that it had been damaged by the occupants of Flat A. in response the landlord had advised that it was “very unlikely” that the fence would be replaced, and asked if the resident had witnessed her neighbours damaging the fence by throwing water at the bottom of it.
In response, the resident explained that Flat A had attached lighting and fixtures to the fencing posts, and she had sent numerous photos and videos showing that water had been thrown into her garden. The resident added that the occupants of Flat A had since drilled and attached a platform on to her fence – and this was done without permission.
The resident subsequently chased a response from the landlord and on 2 November the landlord advised that during a visit to the property it had not identified any damage to the fence. The resident was dissatisfied with the responses she received from the landlord, and contacted the Ombudsman in November 2020 for assistance.
The landlord confirmed to this Service that it had not received and escalation request from the resident following its letter of 30 September. However, given it would write to the resident and ask her to confirm the reasons why she wished for her complaint to be escalated. It added that on receipt of this information, it would carry out a stage two investigation.
In an email dated 27 November, the resident informed the landlord that she had not received responses to the reports she sent in May and June 2020 about the abuse she had received from her neighbours. She added that she had raised a number of concerns regarding racial profiling, hate and harassment but no action had been taken. The resident said that the ASB team had ignored her concerns and a housing officer had even referred to her as being the perpetrator in correspondence to her solicitor in July 2020.
The Ombudsman received further correspondence from the resident in January 2021. She said that the landlord had not investigated the concerns that she had raised, and she was unhappy with the complaint response she had received. As the landlord’s complaints procedure had not been exhausted, we provided the resident with information about how to escalate her complaint.
The landlord subsequently issued its final response on 19 March 2021. In its response, it said:
1. It acknowledged that it had delayed in responding to the complaint; and explained that this was owing to an increase in the number of complaints it had received. It said that it wished to offer the resident £50 for the inconvenience that was caused as a result of the delay.
2. It noted that a complaint had been raised in February 2020, and this was responded to on 17 March 2020.
3. In June 2020 the resident had reported a neighbour she had not previously reported and gave details of harassment and noise nuisance. The resident had also raised repair issues relating to the fence and had advised that her neighbour was disposing of paddling pool water into her garden.
4. On 15 September, the Ombudsman contacted the landlord and asked it to review its handling of the ASB reports. The review, dated 30 September, listed reports from March 2020 and confirmed that they had been processed within the 10-day target time.
5. In escalating the complaint, the resident had raised concerns that incidents she complained about on 28 June had not been addressed. It said that the complaint had been acknowledged by the ASB team member on 11 July, and a follow up was sent on 10 August.
6. It had no open investigations and there were no recent ASB reports.
7. The first ASB report in May was about Flat A. It had received counter allegations from these neighbours; however, neither they nor the resident were willing to participate in mediation.
8. It noted that the resident had reported that her neighbour had tried to run her down and was racist. These matters were reported to the police; however, no further action was taken owing to a lack of evidence.
9. While the resident had reported noise nuisance – particularly young children running around – the noise recorder installed at the property did not detect any noise or nuisance.
10. The resident’s reports of her fence being damaged were investigated. While the resident had provided photographs, theses did not show the damage she had reported. Further investigation would therefore only be considered on the basis of new evidence.
11. The housing officer concerned had not made any judgement relating to the ASB issues and had not accused the resident of being the perpetrator.
12. The ASB Team manager had confirmed that she had entered into discussion with the resident about hate crime at a meeting with the local councillor. It said that during this meeting the resident was asked why she felt the ASB issues were race motivated. It acknowledged that the resident had responded that this was based on her experience, and was her belief. It was sorry to learn that this was how the resident felt; however, it had not seen evidence that the ASB incidents were racially motivated or that hate crime took place.
The resident referred her complaint to the Ombudsman as she remained dissatisfied with the response she had received. The resident raised particular concern that the landlord had not, at any stage, detailed what action it had taken in response to her reports. It was for that reason that she believed that no action had been taken against the “racist driven hate campaign” that the neighbours had launched against her.

Assessment and findings

Response to reports of ASB from March 2020

In correspondence to this Service and the landlord, the resident has raised concerns about how her ASB reports have been handled – in particular with what she considers to be a lack of action on behalf of the landlord. The Ombudsman’s role when investigating ASB complaints is not to determine whether the incidents have occurred as alleged. Rather, the Ombudsman’s role is to assess the evidence that is available and reach a conclusion as to whether the landlord has complied with its duties and obligations – as set out in its ASB policy or procedure – when responding to a resident’s report(s).
From the evidence that has been provided to the Ombudsman, there is nothing to suggest that the landlord has failed to deal with the resident’s reports in line with its procedure, as detailed above. In response to the resident’s reports of noise nuisance, the landlord appropriately explained that the evidence did not show that there was a statutory noise nuisance. Where noises had been detected, the landlord explained that these appeared to be noise associated with daily living – and therefore did not constitute ASB.
With regards to the fence, the landlord advised that it could not see the damage that had been alleged by the resident. It had also commented that no damage was identified when staff had attended in person. Therefore, while the resident’s comments in relation to this are not disputed, the landlord was entitled to rely on the conclusions of its staff who had reviewed photographs and seen the fence. However, the landlord appropriately explained that it would speak with the neighbours about being mindful of how they disposed of water from the paddling pool.
When responding to the complaint, the landlord acknowledged that the resident believed the incidents were racially motivated. However, it explained that it had not seen any evidence to demonstrate that this was the case. The landlord also explained that incidents had been reported to the police – in line with the procedure- but the reports were not taken further owing to a lack of evidence. It was appropriate for the landlord to refer these matters to the police. A hate crime is a criminal offence; and the police would therefore be the most appropriate body to deal with such reports and allegations.
Therefore, from the evidence that has been provided to the Ombudsman, there is nothing to suggest that the landlord had failed to follow its procedure – or respond to the resident’s reports.
However, the resident’s comments are suggestive of poor communication. For example, on more than one occasion, the resident had advised that she wished to know what action had been taken in response to her reports; or that she considered that the landlord had failed to take action. In the circumstances, it would have been helpful if the landlord had offered some explanation to detail steps that were taken to investigate the resident’s reports or to consider the evidence she had submitted. Further explanation could then have been offered to explain why no enforcement action was being – or what the landlord would need to see in order to consider enforcement action. Such explanation would have helped to provide the resident with some reassurance that her reports had not been ignored – and to also provide clarity as to why no enforcement action was deemed necessary. This was not a failing by the landlord; however, it was a shortcoming in the circumstances.

Complaint handling

It is noted that the resident had raised concerns about what she considered to be a failure on behalf of the landlord to deal with her complaint. While the resident’s concerns are noted, the Ombudsman has not seen any evidence which shows that there was a failure by the landlord to treat the resident’s concerns as a formal complaint. While the resident had expressed dissatisfaction with the responses – and perceived lack of responses from the ASB team and her housing officer – the Ombudsman has not seen evidence which shows that the landlord refused to investigate matters through its complaints procedure.
It is noted that the landlord did need prompting by this Service to consider the complaint at the Chief Executive stage. The delay was addressed by the landlord when the final response was issued. It appropriately acknowledged that the response was delayed, and that it had failed to meet its service standards. The landlord apologised to the resident for the inconvenience that had been caused and offered her compensation in line with its policy. This was appropriate.
However, as part of her complaint the resident had raised specific concern that her housing officer had referred to her as the perpetrator when corresponding with her solicitor. The landlord addressed this when responding to the complaint, but said that the housing officer had not accused the resident of being the perpetrator.
From the evidence provided to the Ombudsman, it is noted that in an email dated 17 August 2020 from the Housing Officer, he said – “We believe that (the resident) is the perpetrator of ASB and harassment.” The landlord’s comments in the final response letter were therefore incorrect. However, it is noted that this correspondence was sent by the housing officer in relation to the gas meter and access issue which had arisen earlier. It was not in relation to the ASB incidents that the resident had subsequently reported in 2020. Furthermore, there is nothing to suggest that the comments by the housing officer resulted in the ASB reports being treated unfavourably by the ASB team as a result.
Nevertheless, it is noted that this reference would have been of concern to the resident; and that concern would have been compounded by the landlord’s failure to acknowledge the reference in the final response letter. Furthermore, it would appear that the housing officer had made some judgement in relation to the scenario and had apportioned blame; and this was not appropriate in the circumstances. The landlord should therefore apologise in relation to this now.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was:
1. No maladministration in how the landlord responded to the resident’s reports of ASB from March 2020 onwards.
2. Service failure in how the landlord responded to the resident’s formal complaint.

Reasons

The landlord’s handling of the resident’s ASB reports were appropriate overall and in line with the procedure. However, the evidence and the resident’s comments suggest that the landlord could have entered into further discussion about what actions it had taken in response to the resident’s reports. This was not a failing, but was a shortcoming in the circumstances.
The landlord appropriately acknowledged that it had delayed in responding to the resident’s stage two complaint and offered compensation in line with its policy. However, through its investigation the landlord failed to identify that the resident’s housing officer had referred to her as the perpetrator of ASB. In failing to identify this, the landlord was unable to provide the resident with reassurance that her reports had been considered fairly and objectively by the ASB team.

Orders

Within four weeks of the date of this decision, the landlord should:
1. Pay the resident the £50 which was offered in the final response, if this has not been previously accepted.
2. Pay the resident £50 for the complaint handling failure that has been identified by the Ombudsman, and apologise accordingly.
Within six weeks of the date of this decision, the landlord should:
1. review the relevant correspondence from the housing officer, and provide feedback to staff accordingly.
2. consider its responses to ASB reports and how it can improve communication to ensure that reporters and victims feel that they have been listened to.