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Stroud District Council (20 012 746)

Category : Environment and regulation > Antisocial behaviour

Decision : Upheld

Decision date : 30 Nov 2021

The Ombudsman's final decision:

Summary: Mr and Mrs B complain the Council mismanaged their complaints about a neighbour’s anti-social behaviour. The Ombudsman has decided to uphold Mr and Mrs B’s complaint due to the Council’s failure to clearly communicate with them. This caused Mr and Mrs B distress, confusion and uncertainty. To remedy this injustice, the Council has agreed to apologise to Mr and Mrs B, make them a payment and make several service improvements.

The complaint

  1. The complainants, who I shall refer to here as Mr and Mrs B, have complained that the Council has mismanaged their complaints about a neighbour’s anti-social behaviour. They complain the Council:
      1. delayed in taking action following their reports of anti-social behaviour and noise issues with their neighbour. The complainants say the issues with their neighbour have been ongoing since 2018;
      2. poorly communicated with Mr and Mrs B about the action it would take against their neighbour and failed to meet expected deadlines for responding;
      3. failed to address Mr and Mrs B’s safeguarding concerns about their neighbour’s children;
      4. failed to take action in a timely manner about disrepair issues with their neighbour’s property, which affected their property. They say this concerned the chimney and leak to the roof of their neighbour’s property;
      5. failed to respond to their questions about how the Council would make sure their reports about their neighbour were kept confidential. Mr and Mrs B said they were concerned about their neighbour possibly retaliating against them; and,
      6. failed to treat Mr and Mrs B with respect and appreciate the impact of the situation on them both.
  2. Regarding the handling of Mr and Mrs B’s complaint, they complain the Council:
      1. failed to fully respond to their complaint and included errors in its stage two complaints response. They complain the Council did not look into issues that had occurred before July 2019; and,
      1. incorrectly told them they could escalate their complaint to the Housing Ombudsman Service.
  3. Mr and Mrs B say this has had a significantly detrimental impact on their health and wellbeing. Mrs B says the situation has negatively impacted her mental health. They say it has affected Mr B’s existing medical conditions and has affected his mental health also.
  4. They say they are now considering moving home. But, Mr and Mrs B say they feel trapped in their property as their neighbour’s behaviour has affected the value of their home.

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What I have investigated

  1. I have investigated parts a to c, and f to h of Mr and Mrs B’s complaint. The last section of this decision statement explains my reasons for not investigating parts d and e of the complaint .
  2. The last section of this decision statement also explains why:
  • I investigated action taken by the Council’s ASB team when it responded to Mr and Mrs B’s complaints about ASB and noise nuisance. I have not investigated any action taken by the Council’s housing management service in its role as the landlord of Mr and Mrs B’s neighbour; and
  • I have decided to investigate matters from February 2020 onwards only. This is due to the amount of time that has passed since the issues that predate this.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  4. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider, which would include any disrepair issues with its housing stock. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
  5. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
  6. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I considered the information and documents provided by Mr B, Mrs B and the Council. I spoke to Mr and Mrs B about their complaint.
  2. Mr B, Mrs B and the Council had the opportunity to comment on my draft decision. I considered all their comments before making a final decision.

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What I found

What should have happened

Anti-social behaviour and the Community Trigger

  1. Councils have a duty to take action to tackle Anti-social behaviour (ASB). Section 2 of the Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”) defines anti-social behaviour as:

“(a) conduct that has caused, or is likely to cause, harassment, alarm or distress to any person;

(b) conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises, or

(c) conduct capable of causing housing related nuisance or annoyance to any person.”

  1. ASB can take many different forms; and councils should make informed decisions about which of their powers is most appropriate for any given situation. For example, they may investigate a complaint as part of their duties as a social landlord, where the alleged perpetrator is a council tenant and/or by using their powers under the 2014 Act.
  2. The 2014 Act introduced new powers for councils, the police and other bodies to tackle ASB. Councils may apply to the Courts for a civil injunction or issue a community protection notice. The statutory guidance which accompanies the Act sets out some early and informal interventions which may be used to address anti-social behaviour. This includes verbal and written warnings, mediation and acceptable behaviour contracts.
  3. The 2014 Act also provides a mechanism to review the handling of complaints about ASB. This is known as the ‘Community Trigger’ process. When someone requests a review, relevant bodies (which include the council, police and other agencies) should decide whether the local threshold has been met.
  4. If the threshold has been met, the relevant bodies should undertake the review.
  5. They should share information, consider what action has already been taken, decide whether more should be done, and then inform the complainant of the outcome. If they decide to take further action, they should create an action plan. It is for relevant local bodies to agree their review threshold, but the ASB statutory guidance says this should be, at a maximum, that a complainant has made three reports of ASB within six months.
  6. We can only consider councils’ actions in and following an ASB case review. Any contributions made by other relevant bodies, such as the police, are not in our jurisdiction.
  7. The 2014 Act created a legal duty for the relevant bodies to publish information annually about the number of applications made for ASB case reviews and the outcomes of those applications.

What happened

  1. Mr and Mrs B are owner-occupiers. Mr B has a pre-existing chronic health condition, which causes debilitating pain. Their complaint concerns their neighbour, who is a Council tenant.
  2. In February 2020, Mrs B chased the Council’s tenant’s service for an update on outstanding issues with alleged anti-social behaviour from her neighbour.
  3. In April, Mrs B complained to the Council about a bonfire in her neighbour’s garden and noise nuisance that occurred on the same night as the bonfire.
  4. The next day, Mrs B chased the Council for a response to her email from February.
  5. A few days later, a Council Officer, who was head of housing services in its tenant services team, replied to Mrs B. The Officer explained that the Council’s environmental health team would investigate her bonfire complaint and associated alleged noise nuisance.
  6. At the beginning of May, the Council’s environmental health team asked Mrs B to make videos or audio recordings of any ASB or noise issues, which could be sent to the team through a file sharing site.
  7. At the beginning of June, the Council’s environmental health team served a Community Protection Notice (CPN) on Mr and Mrs B’s neighbour. This was to address the following behaviours:
  • smoke from burning at the property;
  • excessive noise from people living at and/or visiting the property; and,
  • excessive noise from amplified music.
  1. Some days later, Mr and Mrs B sent the Council new diary sheets providing details of five incidents of ASB and noise nuisance by their neighbour, some involving his children. The diary sheets covered a two week period.
  2. A couple of weeks later, Mr and Mrs B chased the Council for a reply to their email. In their email:
  • they attached new diary sheets and uploaded sound files of noise from their neighbour that occurred over two nights. They said they had been unable to sleep throughout both nights due to loud shouting, conversations and music coming from their neighbour’s house;
  • they said Mrs B’s doctor had advised her to seek counselling due to the stress and anxiety caused by her neighbour’s ASB;
  • they said, due to Mrs B’s anxiety, they did not wish to come face-to-face with their neighbour. This meant they did not wish to take part in the mediation that had been offered with their neighbour. In any case, they said they did not think the mediation would lead to a positive outcome given the seriousness of the issues. They said the only way for the issues to be brought to an end would be if the Council removed their neighbour from the property; and,
  • they asked for clarity from the Council about the action it could take once they had provided a witness statement.
  1. Five days later, the Council’s Neighbourhood Management Officer in its tenant services replied.
  2. Towards the end of July, the Council issued an amended CPN. The Council apologised to Mr and Mrs B. It explained there was a technical fault with the original CPN, which potentially affected the recipient’s ability to appeal. It said this meant an amended CPN was needed.
  3. At the beginning of August, the Council’s environmental health team installed recording equipment in Mr and Mrs B’s home. This was because they had reported continued disturbances in sleeping hours (between 11pm and 7am) meaning it was likely that non-compliance with the CPN had already arisen. This remained in place for two weeks.
  4. Mr and Mrs B complained to the Council. They also raised their complaint with their local MP.
  5. Two days later, Mr and Mrs B’s local MP wrote to the Council asking it to investigate their complaint.
  6. The Council’s Neighbourhood Management Officer in its tenant services replied to Mr and Mrs B. The officer email:
  • clarified the steps taken by tenant services and environmental health to date;
  • explained the next step under the Council’s ASB Policy would be to advise Mr and Mrs B to activate the Community Trigger process. The Officer provided details of the Community Trigger process and its purpose;
  • advised the complainants to report any COVID-19 lockdown rule breaches to the Police; and,
  • advised of the next steps, which involved providing Mr and Mrs B with a single point of contact at the Council. This Officer would take the lead in coordinating the response from all agencies involved in the complaint, including environmental health, tenant services and the Police. This was in acknowledgment of the fact there had been communication issues with the different Council teams liaising with each other. The Council’s Neighbourhood Management Officer confirmed he had also registered their complaint as a formal complaint.
  1. In September, the Council sent Mr and Mrs B its stage one response.
  2. A few days later, Mrs B replied to the Council.
  3. Between mid-September and the end of October, Mr and Mrs B sent the Council five audio recordings of alleged CPN violations. Council records show it considered several of these incidents amounted to CPN violations.
  4. In November, the Council sent Mr and Mrs B its stage two complaint response.
  5. In December 2020, the Council applied for an injunction against Mr and Mrs B’s neighbour.
  6. Between November and the end of January 2021, Mr and Mrs B sent the Council seven audio recordings of alleged CPN violations. Council records show it considered two of these incidents, both occurring in January, amounted to CPN violations.
  7. In February 2021, Mr and Mrs B complained to the Ombudsman. Their local MP was involved in raising the complaint with the Ombudsman.

Analysis – was there fault by the Council causing injustice?

Delays in the Council’s response to reports of ASB and noise issues

  1. Mr and Mrs B complain the Council delayed taking action and poorly communicated with them following their reports of ASB and noise nuisance by their neighbour (parts a and b of the complaint).
  2. As explained in the final part of this decision, I have investigated the Council’s action from February 2020 onwards.
  3. A person who complains about ASB by a Council tenant is entitled to have the Council consider the remedies available under the Anti-Social Behaviour Act 2014 (the 2014 Act), including the Community Trigger case review. The 2014 Act makes no distinction according to the housing tenure of the complainant or the alleged perpetrator.
  4. Based on the evidence I have seen, the Council considered and used certain of its ‘general’ powers under the 2014 Act (see paragraphs 15 to 18 above). The powers the Council primarily considered and used were:
  • whether early interventions, specifically mediation, could help resolve the complainants’ issues. The Council offered mediation three and a half weeks after Mr and Mrs B reported the issues concerning their neighbour’s bonfire in April 2020. However, as Mr and Mrs B explained, in June 2020, the reasons why they did not wish to follow this route, the Council decided this was not a worthwhile option to pursue;
  • at the beginning of May, the Council’s environmental health team asked Mrs B to make videos or audio recordings of any ASB or noise issues, which could be sent to the team through a file sharing site. This was because the team were no longer entering complainants’ homes and leaving sound recording equipment due to risks associated with COVID-19;
  • in June, the Council’s environmental health team issued a Community Protection Notice (CPN) against Mr and Mrs B’s neighbour. This was based on the evidence they had submitted. I find the Council acted in a timely manner when deciding to issue a CPN, including to correct the error in the original CPN. The Council provided Mr and Mrs B with a clear explanation why this error meant an amended CPN was necessary;
  • it signposted Mr and Mrs B to the Community Trigger process. Both in June and August the Council emailed them to tell them they had the right to access the Community Trigger as a way of an independent body reviewing their case. The Council provided details of Restorative Gloucestershire; an organisation to whom the Council has transferred the management of the process. By searching for ‘Restorative Gloucestershire’ on the internet, this comes up with the relevant website with further information on the Community Trigger process (referred to as an ASB Case Review). The website confirms the threshold for a Review: within the last six months, there should be three reports of ASB from the same person or five reports from more than one person or a group; and,
  • in December, it is my understanding the Council’s environmental health team and tenant service team worked together to apply to the Magistrates Court for a civil injunction against the neighbour. This was based on evidence provided by Mr and Mrs B. This decision was made, over serving a noise abatement notice, to secure the earliest court date.
  1. Based on the above, I find the Council made suitable efforts to gather evidence and made decisions which flowed logically from the evidence. It properly considered its range of powers, including signposting Mr and Mrs B to the Community Trigger process. I, therefore, do not find fault the Council at fault here.
  2. However, the Council has accepted, mainly in its stage one complaint response and email to Mr and Mrs B from the end of August 2020, that there were delays in the way the Council’s response time. This is fault. In particular, it accepted:
  • the Council had failed to agree an Action Plan in a timely manner with the complainants (to be reviewed every 30 days); and,
  • there were communication issues between the agencies involved. I understand this primarily concerned its tenant services and environmental health teams. The Council accepted the process for Mr and Mrs B became ‘muddled’. It said this was largely due to the volume of communication with them and the fact a variety of Council officers responded, which caused confusion. Because of this, the Council arranged for Mr and Mrs B to have a single point of contact from August 2020 to ensure consistency in the Council’s communications.
  1. The above fault caused Mr and Mrs B distress and uncertainty. I, therefore, uphold parts a and b of their complaint.
  2. The Council told us that its tenant services work with its environmental health team to combat noise nuisance and ASB from its tenants. However, based on the evidence I have seen and the Council’s ASB Policy (as updated 2021), there is not a clear process in place for identifying: how the two teams will communicate and work with each other, and who will take the lead role in determining which ‘general’ powers it will consider and use. This includes communicating with complainants and deciding when to draw up an Action Plan. This is fault. In Mr and Mrs B’s case, this lack of a clear process caused confusion. Although the Council was taking action in response to their ASB reports, it was not clear from the beginning what action the Council could take, which team would take the lead and who Mr and Mrs B should contact.

The Council’s response to safeguarding concerns

  1. Mr and Mrs B complain the Council failed to address their safeguarding concerns about their neighbour’s children (part c of the complaint).
  2. I have seen evidence that Mr and Mrs B raised safeguarding concerns about their neighbour’s children in April, May, June and August 2020.
  3. The Council responded to Mr and Mrs B’s concerns as follows:
  • in May, the Council advised them not to video their neighbour’s children as this could lead to a counter claim of harassment. However, it confirmed it had followed up their concerns with its Multi-Agency Safeguarding Hub (MASH) team, which handles safeguarding concerns about children under the age of 18-years old. The Council provided the contact details of its MASH team should they have further concerns. It explained its MASH team were best placed to provide feedback on what amounts to a risk to a child;
  • at the end of June, a Council officer advised Mr and Mrs B to contact its social services team with their concerns about one of the neighbour’s children staying up late;
  • in August, the Council emailed Mr and Mrs B to confirm it had been in touch with the police who had advised there were no concerns regarding their neighbour’s children; and,
  • in September, as part of its stage one complaint response, the Council clarified the action it had taken in response to their concerns. It again provided the contact details of its MASH team to report safeguarding concerns to. It also provided details of its out of hours service and the police.
  1. Based on the above, I find the Council provided Mr and Mrs B with the appropriate details of who to contact and why in its correspondence with them. I have seen evidence the Council followed up Mr and Mrs B’s concerns with the relevant teams or agency. In my view, it would have been good practice for the Council to have explained why, for example, it was not able to disclose the outcome of such action to them. However, I do not find this amounted to fault here.

The Council’s understanding of the impact of the situation

  1. Mrs and Mrs B complain the Council failed to treat them with respect and appreciate the impact of the situation on them both (part f of the complaint).
  2. I accept that, due to the fault identified above around the Council’s communications with them, this caused Mr and Mrs B distress, confusion and stress. However, my findings in paragraphs 48 and 49 above explain why I find the Council appropriately considered all potential action it could take using its ‘general’ powers. I, therefore, do not find the Council failed to appreciate the impact of the situation on Mr and Mrs B. Rather, the evidence I have seen shows the Council took their reports seriously. Indeed, in September 2020, the Council provided details of its Community Wellbeing Service given the concerns the complainants had raised about Mrs B’s mental health.

Complaints handling

  1. Mr and Mrs B complain about the Council’s handling of their complaint (parts g and h of the complaint).
  2. I have considered the Council’s complaint responses to Mr and Mrs B. I find the Council provided clear details of the action it had taken and explained why it took July 2019 as the starting point. It explained why it had accepted fault in terms of its communications with them and creating an Action Plan. It apologised to Mr and Mrs B for this and explained what action it would take to remedy the communication issues. I do not find the Council at fault here (part g of the complaint).
  3. In its final complaint response, the Council told Mr and Mrs B that they could complain to the Housing Ombudsman Service (HOS) if they were still not satisfied.
  4. That advice was wrong. I find the Council at fault in relation to part h of the complaint. The HOS can only investigate complaints made by a Council tenant or leaseholder. This caused Mr and Mrs B uncertainty and they went to time and trouble identifying the correct Ombudsman to complain to.

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Agreed action

  1. Within four weeks of my final decision, the Council has agreed to:
      1. apologise in writing to Mr and Mrs B for the fault causing injustice identified in paragraphs 50 to 52 and 62 above; and
      2. make a payment of £250 to Mr and Mrs B to reflect the distress and confusion caused, and the time and trouble they went to complaining, which included through their local MP. This is in line with the Ombudsman’s published guidance on remedies.
  2. Within three months of my final decision, the Council has also agreed to make the following service improvements:
      1. review its ASB Policy and guidance to staff to include clear directions to staff on how its environmental health team and tenant services team will work together in ASB and noise nuisance cases against Council tenants and leaseholders. This should include clear information on when one team needs to take the lead role and when a single point of contact should be established;
      2. issue a reminder to officers of when they should draw up an Action Plan when they receive complaints about ASB by Council tenants and leaseholders; and,
      3. remind officers who investigate complaints at the final stage of the complaints procedure that complainants who are not Council tenants or leaseholders cannot complain to the Housing Ombudsman Service. If they are complaining about the Council’s use of its ASB powers, we may be able to investigate.
  3. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

  1. I have completed my investigation.
  2. I have decided to uphold parts a, b and h of Mr and Mrs B’s complaint. This is because there was fault by the Council causing them injustice.
  3. I decided not to uphold parts c, f and g of Mr and Mrs B’s complaint. This is because I do not find there was fault by the Council causing them injustice.

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Parts of the complaint that I did not investigate

Scope of the investigation

  1. We did not investigate the actions of the Council’s Housing Service in its role as the landlord of the alleged perpetrator of ASB. We have no jurisdiction to investigate for the reasons given in paragraph ten above.

Late complaints

  1. Mr and Mrs B say the issues with their neighbour have been ongoing since 2018. However, when responding to their complaint, they complain the Council did not look into issues that had occurred before July 2019 (parts a and g of the complaint).
  2. The law says we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us (see paragraph nine above).
  3. Mr and Mrs B complained to the Ombudsman in February 2021. I have considered their reasons for not complaining sooner to us. However, I think that they could have complained to the Ombudsman sooner about matters that occurred prior to February 2020. I have, therefore, decided not to investigate matters before this time period.

Disrepair issues

  1. Mr and Mrs B complain the Council failed to take action in a timely manner about disrepair issues with their neighbour’s property, which affected their property. They say this concerned the chimney and leak to the roof of their neighbour’s property (part d of their complaint).
  2. I cannot investigate this part of Mr and Mrs B’s complaint. This is because the law says we cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider, which would include any disrepair issues with its housing stock. (Local Government Act 1974, paragraph 5A schedule 5, as amended)

Concerns about confidentiality

  1. Mr and Mrs B complain the Council failed to respond to their questions about how the Council would make sure their reports about their neighbour were kept confidential. Mr and Mrs B said they were concerned about their neighbour possibly retaliating against them (part e of their complaint).
  2. Based on my conversation with Mr and Mrs B and an email from them in June 2021 to the Ombudsman, it is my understanding that this aspect of their complaint concerns the potential sharing of their personal information in advance of court proceedings against their neighbour.
  3. I cannot investigate this part of Mr and Mrs B’s complaint as the Council’s alleged disclosure is inseparable from the Court proceedings (this is in line with paragraph 11 above).
  4. Additionally, we normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection (Local Government Act 1974, section 24A(6), as amended). I understand Mr and Mrs B have separately complained to the Information Commissioner’s Officer about this matter and broader concerns they have about protection of their data.

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Investigator's decision on behalf of the Ombudsman

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