City of York Council (19 010 970)

Category : Housing > Allocations

Decision : Upheld

Decision date : 22 Apr 2021

The Ombudsman's final decision:

Summary: The Ombudsman found fault by the Council on Miss Q’s complaint about its failure to protect her as a vulnerable person from 2 tenants it moved close to her after it had moved her away from them. It failed to: consider exercising discretion to prevent their move; warn her of the move; show contact with the police or tenants. When moving her again, it failed to weigh its duty of confidentiality to her new abusive neighbour against her need to make an informed decision about whether to accept the tenancy. The agreed action remedies the injustice caused.

The complaint

  1. Mrs P complained on behalf of her daughter, Miss Q, of the Council failing to:
      1. Protect her following a direct offer from her previous accommodation, where she was harassed by 2 of its tenants, when it later moved them into a property opposite hers;
      2. Properly consider her needs, and the suitability of the accommodation, when it moved her; and
      3. Promptly move her from the accommodation when they started once more to harass her.
  2. As a result, she says they subjected her to further harassment and abuse, the stress of which affected her mentally and physically.

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The Ombudsman’s role and powers

  1. 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)
  2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)

North Yorkshire Common Allocation Policy (September 2013)

  1. This sets out a shared set of rules on how properties are advertised and let, providing consistency between all partner landlords. It sets out the policy for North Yorkshire Choice Based Lettings Partnership. The Council is one of 10 partners which includes councils and a housing association.
  2. Certain applicants who apply, including current tenants who wish to transfer, may not qualify to join the register when there are antisocial behaviour issues that have caused, or are likely to cause, serious nuisance to neighbours. (paragraph 2.3)
  3. The policy explains an applicant, or household member, will not qualify for the register if they have been guilty of unacceptable behaviour serious enough to make them unsuitable to be a tenant at the time the application is considered. Each case is judged on its merits. (Appendix 3)
  4. There are circumstances where the Council will need to, or have discretion to, overlook a successful bidder. The policy sets out mandatory and discretionary grounds for overlooking a bid. (Appendix 11)
  5. A management transfer will be considered for a tenant if there is evidence to show they are experiencing harassment of a serious, targeted, and persistent nature which the tenant could not reasonably have prevented or avoided through their own actions and, where there are no other appropriate ways of resolving the problem without resulting in a serious risk of harm. ‘Serious’ includes harassment based on race, sexuality, or disability. ‘Targeted’ means specifically aimed at the individual or household. ‘Persistent’ means a series of repeated and recent incidents over a defined period of time, and/or a likelihood of repetition assessed by the police/other agency. The aim is to move the household to a place of safety and will involve one direct offer anywhere within the current partner landlord’s stock. (Appendix 13)
  6. In exceptional cases, a property will not be advertised but will be offered directly to an applicant. This can include management transfers. Direct offers will be appropriate and suitable to the applicant’s needs and should be in the council’s area unless agreed by partner landlords. An applicant receives one direct offer of accommodation. (paragraph 4.13)
  7. It is necessary for housing managers to occasionally allocate a property outside of the policy to facilitate the management and community cohesion of a specific property/area. ‘Sensitive Lets’ relate to a property where: the previous tenant caused significant neighbour nuisance and it took considerable time to resolve the problems; there was significant drug related nuisance; there was a significant noise nuisance within a block of flats or immediate neighbourhood. The targeted allocation of a property could reduce such issues by ensuring the next tenant will be unlikely to cause a similar nuisance. Such properties will be advertised as a Sensitive Let and the advert stating applicants will require further checks. (Appendix 18)

North Yorkshire Choice Based Lettings Partnership (staff guidance September 2014)

  1. The Council is a partner in a local choice-based lettings scheme which enables housing applicants to bid for available properties which are advertised.
  2. On some occasions it will be necessary for housing managers to let a property outside the choice-based lettings scheme to facilitate the management and cohesion of a specific property/area. These properties must be advertised and adverts clearly annotated that applicants will be subject to further checks. (paragraph 19.7)
  3. A bid must be overlooked if the applicant is a current tenant of any UK council or housing association (registered providers) and they have housing related debt or are in breach of tenancy. (paragraph 21.3 a)
  4. A bid shall be overlooked if the current tenant of a council or housing association are in breach of their tenancy conditions. Being in breach is defined as based on ‘formal action’, evidence of which would include the applicant having been written to about a proven breach of tenancy as part of the landlord’s formal published procedure on the tenancy breach. Staff should use their discretion if the formal action worked or was not escalated in the last 6 months. (paragraph 21.3 j)

City of York Council-Procedure Guide Management Transfers (1 July 2010)

  1. This policy explains how a victim of harassment or other serious incident is considered for an urgent transfer. The Council has a duty to protect the safety of their tenants. ‘Moving the victim’ is one consideration in the action plan that should be drawn up.
  2. All other possible solutions to the problem need exploring first at a multi-agency meeting to explore harassment warning, injunctions, security methods, and other ways of moving.

Human Rights Act 1998

  1. This Act sets out the fundamental rights and freedoms to which everyone in this country is entitled. These include:
  • Article 8: Everyone has the right to respect for his private and family life and correspondence;
  • Article 14: The rights and freedoms under this Act shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status; and
  • The First Protocol, Article 1: Everyone is entitled to the peaceful enjoyment of his possessions.

Equality Act 2010

  1. The Act protects people from discrimination, harassment, and victimisation. Its protection covers those who use public services. It includes indirect discrimination where an organisation, for example, has a policy or procedure which has a worse impact on someone with a protected characteristic than someone without one. (section 19)
  2. A protected characteristic includes a physical or mental condition having a long-term and substantial impact on a person’s daily activities (section 4).
  3. The public sector equality duty requires public bodies like the Council to consider how their decisions and policies affect those with different protected characteristics and have evidence showing how it did this. (section 1)

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How I considered this complaint

  1. I considered all the information Mrs P sent on behalf of her daughter Miss Q, the notes of the telephone conversations I had with Mrs P, and the Council’s response to my enquiries, a copy of which I sent her. I did not send a complete copy of what I received as some of it contained information about third parties which needs to remain confidential. This means I cannot refer to it directly or indirectly. I sent a copy of my draft decision to Mrs P and the Council. I considered their responses.

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What I found

  1. Miss Q lived in a 1-bedroom flat (property 1) with her partner, Mr R, who works and is also her carer. They rented it from the Council. Miss Q suffers from various health problems including post-traumatic stress disorder, severe anxiety, problems with her joints, and a panic disorder. She is disabled and has a recovery assistance dog.
  2. Miss Q began to experience problems with Ms S and Mr T who lived next door. She claims they verbally abused her, threatened to kill her dog, and harassed her. Mr T is her partner’s brother. The harassment continued for 6 months during which time Mrs P says Miss Q began to self-harm. Miss Q provided the Council with evidence from her GP and psychologist about the harassment’s impact on her.
  3. In October 2016, the Council exercised discretion to move Miss Q and Mr R to another flat (property 2) as a management transfer.
  4. The completed management application form noted the impact of their behaviour on Miss Q was serious as it caused her to self-harm. She feared getting hurt by either of them and it also noted: the incidents were happening regularly and were unlikely to stop until one party moved; they were targeted at Miss Q; their dislike of her; their awareness of her mental health problems, which they used to upset her.
  5. The Council did not consider the actions complained about serious enough to take legal action against Ms S and Mr T.
  6. After Miss Q had lived in her flat for two and a half years without harassment or abuse, Ms S and Mr T successfully bid for a Council property across the road from her. The evidence shows they had a genuine reason for needing to move from their previous address.
  7. The Council explained why they ended up living so close to her. They bid for an advertised property under its choice based letting scheme. As they met the criteria for it, the Council allocated it to them. The Council explained its systems cannot identify allocations which may potentially harm another tenant. This can only be done manually through a ‘Sensitive Let’ approach to empty properties. Unless a Sensitive Let is agreed for a particular property, there is no restriction on how it is allocated, apart from those set out in its policy.
  8. A Sensitive Let might, for example, deal with a property where there were antisocial behaviour problems with it in the past. As there were no problems with the property they bid for, the Council did not identify any reason for refusing the allocation. It confirmed its systems could not identify previous neighbour disputes or management transfers. Nor could it identify whether a tenant moving to a new address has a connection with another tenant living nearby.
  9. The Council acknowledged while the officer dealing with their transfer identified their connection with Miss Q, it was too late to stop the allocation. The officer spoke to Ms S and Mr T when they signed the new tenancy and noted, ‘they seem happy to stay away from’ Miss Q. It accepted while local officers were aware of the difficulties this move would cause Miss Q, the allocation had to go ahead in line with policy.
  10. Officers only spoke to Miss Q after the move, giving advice about avoiding potential conflict situations, which she did not find helpful. The records show while it accepted a need to rehouse Ms S and Mr T it, ‘decided that if there were any problems these would have to be dealt with at that time.??’
  11. The Council explained that anecdotally, officers were aware that Mr T and Miss Q’s partner are related and understood they were still in contact with each other. It believed Ms S and Mr T knew where Miss Q lived anyway. The Council accepted Miss Q had not reported any problems with their behaviour following her move to property 2.
  12. Following their move, the Council says Miss Q did not make any immediate reports of harassment. She did report feeling intimidated by them living so close to her and seeing them in the street. She reported feeling afraid to leave her home. Ms S and Mr T visited the same local shop as Miss Q who said their abuse of her began again. Miss Q reported her encounter with them at the shop to the Council. The Council also confirmed receiving reports about Mr T riding past her with his middle finger raised and of an object thrown at her window by an unidentified person.
  13. While claiming the police found no evidence of harassment after speaking to Miss Q, the Council provided no evidence of contact with the police.
  14. Two months after their move, Miss Q’s advocate complained to the Council about Ms S and Mr T’s behaviour and the unsuitability of her flat. The advocate gave examples of them driving a bicycle at her, trying to get into her block, watching her from outside her bedroom window, and ringing the doorbell before running away. Their behaviour left Miss Q so scared she had a panic attack.
  15. Her mental health social worker’s report in support of her wanting to move noted the impact Miss Q’s anxiety and distress about leaving the flat and getting harassed and abused had on her therapy dog. Miss Q was not exercising it enough and her carers noted a change in the dog’s behaviour. They believed the dog was becoming ‘deskilled’ which may mean it becoming less effective with its interventions. The dog was trained to recognise signs of Miss Q becoming anxious and distressed. It would then intervene to reduce the risk of Miss Q having a panic attack or self-harming.

Conclusions

  1. The Council’s decision to exercise discretion to transfer Miss Q from property 1 shows it had enough concerns to justify the move because of the antisocial behaviour of Ms S and Mr T.
  2. The Council noted there were no further problems for Miss Q following her move. It believed this was despite Ms S and Mr T knowing where she lived, although it failed to provide evidence to support its belief.
  3. Even if they had known where she lived, the reason for the lack of harassment since her move away from them could simply be due to the distance separating them. If the Council believed they were aware of her new address, it should have been more wary of, and explored, their motive for bidding on a property so close to where she lived.
  4. Following Miss Q’s move to property 2, the Council’s systems and procedures were unable to alert officers to the potential problem of housing these known perpetrators so close to her. This is because its system can only identify past problems with properties, not tenants who harassed and abused other tenants. This failure meant the Council had no way of checking whether the transfer allowed known perpetrators of antisocial behaviour to move close to their past victim. It also means the Council could not explore the apparent motive a known perpetrator might have who may intentionally, or unintentionally, end up bidding for accommodation close to their victim. This failure is fault.
  5. When the Council introduced this system, the public sector equality duty required it to consider how this decision would affect people like Miss Q, who have a protected characteristic. I have seen no evidence showing it considered the greater impact the limitation of this system would have on Miss Q, a vulnerable person. Nor have I seen evidence of it considering the potential impact it might have on her human rights, such as the right to have her private and family life respected, and her right to be entitled to the peaceful enjoyment of her property.
  6. The Council’s records show awareness of the history between Ms S, Mr T, and Miss Q at the time they signed the new tenancy agreement. Despite this knowledge, the Council failed to show it considered whether it had grounds, or should consider exercising discretion, to prevent their move. This is fault.
  7. Under the housing allocation policy (Appendix 11), the Council has mandatory and discretionary grounds for overlooking a bid. Miss Q’s situation does not directly fit into either ground.
  8. The Council could have been more proactive about dealing with the potential further harassment of Miss Q rather than deciding to deal with problems as they arose. For example, it could have sent Ms S and Mr T a letter reminding them of their duties as tenants and the need for them not to approach, harass, or abuse Miss Q.
  9. While the Council had a duty of confidentiality to Ms S and Mr T, it was also aware of Miss Q’s known vulnerabilities and her past experiences with them which led it to initially agree a direct offer to property 2. The Council failed to warn her before they moved that they would be living close to her. I consider the Council failed to balance the duty of confidentiality owed to Ms S and Mr T against Miss Q’s vulnerabilities and previous experiences with them. This failure is fault.
  10. Although the Council said it had contact with the police about an incident outside a shop, it provided no evidence in support. Nor is there evidence of the Council investigating or contacting Ms S and Mr T following the report it received from Miss Q’s advocate. Given their past behaviour, it needed to consider sending a clear firm message to them of it taking these fresh allegations seriously and would not tolerate a repetition of what happened before. This failure is fault.
  11. As the Council decided the behaviour of Ms S and Mr T fell short of a breach of tenancy, but serious enough to justify moves, their actions did not strictly fall within any of its policies. This is an omission the Council may wish to consider.
  12. I consider these failures meant Miss Q was put to the time, trouble, inconvenience, and avoidable distress of moving for a second time with all the related costs this included. She felt frustrated and upset about having to move again. It took 4-5 months to move from this property during which time she worried about further harassment and abuse.
  13. Mrs P says the cost of the move was about £2,000. They had to lay carpets and redecorate. Mrs P provided photographs showing bare plaster walls. She also provided copy receipts for decorating materials and carpets totaling £1,293.60.

Events surrounding second move

  1. The Council made no contact with Ms S and Mr T about the allegations against them. Instead, it agreed to offer Miss Q another direct offer but, warned this could be in any area. The Council had no assessment of her housing or health needs as she had no ‘live’ housing application.
  2. Miss Q argued she needed to remain close to her family support network. She also needed a 2-bedroom property as recommended by her rheumatology occupational therapist. This would allow her mother to sleep over when Mr R worked night shifts. It would also allow him to go to bed without disturbing her when he returned from work after a late shift. The areas she wanted to move to were areas in which the Council had limited housing, some of which were linked to a scheme for older people.
  3. The rheumatology occupational therapist report she sent the Council referred to communal living causing her anxiety. It also said her property was too small, referred to problems she had using the bath, and her need for an outdoor space for her therapy dog. The report recommended a 2-bedroom property, saying she would also benefit from a wet room. This was because of the difficulties she faced climbing into the bath even with a bath board in place.
  4. The Council decided to get its own occupational therapy report as it considered Ms Q’s inadequate. When it did this it found: she could not use the over-bath shower as she became dizzy climbing over the bath side and had fallen; she needed help lifting her legs over the sides; the kitchen was too small for a stool she needed as she could not stand for any length of time. The report agreed she needed a 2-bedroom bungalow.
  5. The Council offered a one-bedroom property to her as a direct offer and warned it would withdraw this status if she did not provide at least 2 areas she would consider moving into. Mrs P emailed the Council the same day saying the area choice form was with her daughter but named 3 areas she would consider. The Council withdrew the direct let status. It said the areas mentioned were those in which it had very limited housing stock. It agreed to exercise discretion for her need to include a 2-bedroom accommodation following evidence from Miss Q’s social worker about problems she had at home.
  6. Miss Q now had to bid for properties under the Council’s choice based letting scheme. She successfully bid for a 2-bedroom property (property 3). While she bid and accepted this property, she believes the Council failed to:
  • Provide her with a property meeting her assessed needs; and
  • Warn her about the long history of antisocial and violent behaviour of the tenant next door.
  1. The Council said while it received some complaints about her neighbour, there was not enough evidence to take formal action to evict him. It said it received a report from Miss Q of the neighbour digging up some plants but, she did not ask the Council to act.
  2. An internal Council email in January 2020 said an officer spoke to Mrs P about her concerns about the neighbour. An email to a housing officer the same month from a visitor to Miss Q reported the neighbour as having dug up plants near the window, deliberately walking past her windows, and pushing her rear gate and fence. The visitor noted he gradually moved closer to her property throughout the visit. This visitor did not want to engage with the neighbour because of his unpredictable behaviour. Nor did she want to leave Miss Q feeling more vulnerable when the visit ended.
  3. The Council confirmed Miss Q’s social worker was against her moving in. The social worker became aware of problems with property 3 and the neighbour shortly before her move. The Council said it allowed her to make an informed decision about the property as she could have refused the offer and bid for other properties. The occupational therapist also contacted the housing team with concerns about the neighbour but, was told officers in housing could not breach confidentiality by disclosing personal information. The Council confirmed it could not release information about one tenant to another tenant.
  4. Two weeks after Miss Q’s tenancy started, but before she moved in, the social worker received an email containing serious information about the neighbour. While the sender was not revealed by the Council, the social worker contacted the housing team and said Miss Q needed to know what this information said.
  5. The Council explained the case about the neighbour was only passed to its antisocial behaviour team in November 2019. This is the month Miss Q moved in. It was not passed to the team before this date despite evidence showing problems dating back several years. While the evidence shows the neighbour was the subject of reports, and made some reports against fellow neighbours, the reports against him contained serious allegations. One incident involving the neighbour was reported in the local news. As this is publicly available information, it is not confidential. The news reported how the neighbour punched another neighbour and received a suspended prison sentence. This was earlier in the year Miss Q moved in.
  6. Miss Q argues the Council should have warned her about the behaviour of this tenant who, she said, assaulted the previous tenant. Since moving into property 3, Miss Q complained about the neighbour entering their shed, wandering around their flower beds, and sitting outside the property revving his motorbike.
  7. The Council confirmed it recently issued a notice of seeking possession against her neighbour.

Conclusions

  1. It is important to note the Council did not offer Miss Q property 3 as a direct offer. She successfully bid for it under the choice based letting scheme. This means when accepting the offer, she knew about the property’s condition and its suitability.
  2. While I cannot refer directly to confidential evidence the Council provided about Miss Q’s neighbour, I am satisfied the Council was fully aware of the problems with this neighbour. These problems existed over many years with the previous tenant and other neighbours until shortly before Miss Q moved in.
  3. I am satisfied Miss Q was unaware about the neighbour’s past behaviour when she accepted and signed the tenancy. She became aware of the problems with the neighbour after she signed the tenancy but, before she moved in. While the Council said she chose to move in, Miss Q had already signed the tenancy agreement and so entered a legal contract to rent it.
  4. While I accept the Council owed her neighbour a duty of confidentiality, I again consider it failed to weigh this against Miss Q’s vulnerabilities and past experiences of harassment when it received her bid for the property. She was a person who had already suffered from harassment and abuse at 2 previous properties. It needed to consider exercising discretion to provide her with some information which, while protecting the neighbour’s confidentiality, also allowed her to make an informed decision about whether to accept the tenancy before she signed for it. The failure to do so is fault.
  5. When reaching this decision, the Council failed to show it considered its impact on her human rights.
  6. I am satisfied the failure caused Miss Q further injustice. The avoidable distress it caused included anxiety, worry, and frustration.

Agreed action

  1. I considered our guidance on remedies and the fact Miss Q has now moved to another property.
  2. The Council agreed to take the following action to remedy the injustice identified within 4 weeks of the final decision on this complaint:
  • Apologise to Miss Q for: the shortcoming of its systems; its failure to consider whether it needed to exercise discretion to prevent their move; failing to be more proactive; failing to show it balanced the need to keep the perpetrators confidentiality against her need to be told and make an informed choice; failing to show contact with the police;
  • It should pay her £1,500 for the avoidable distress the failures caused. This includes the anxiety Miss Q suffered, the upset, the upheaval, the frustration, the inconvenience, and the impact on her mental health; and
  • Pay a contribution of £1,293.60 towards the overall cost Miss Q incurred when moving and preparing her home.
  1. The Council also agreed, within 4 weeks of the Miss Q moving in to her new accommodation, to do the following:
  • It should pay her an additional £250 for the avoidable distress the failures caused which have resulted in her having to move from property 3 to another property;
  • It agreed with Miss Q that it will remove the existing carpets in the property and fit new ones;
  • It will pay a contribution towards the redecoration costs of the new property up to a maximum payment of £1,000, subject to her providing satisfactory receipts, and will try to arrange for a community-based organisation to do the work;
  • It will also provide her with a ‘paint pack’ which includes paints and brushes, for example, sufficient for a 2-bedroom property;
  • It will pay a contribution towards her moving costs up to a maximum of £150 subject to her providing satisfactory receipts; and
  • It will pay up to £1,200 for any improvement works Miss Q wishes to carry out to the existing fence, which already meets its empty property standard, subject to her providing satisfactory receipts.
  1. In addition to the above requirements, the Council also agreed, within three months of the date of this decision, to carry out a review of its policies and procedures to improve:
  • its systems and procedures to identify potential problems of perpetrators moving close to their victims; its consideration of discretion to prevent moves involving perpetrators who might end up living near their victims; its ability to be more proactive when known perpetrators do end up living close to victims; its record keeping; its investigation of reports of harassment; its consideration of discretion when rehousing applicants next door to tenants with violence and behavioural issues; its consideration of human rights.

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Final decision

  1. The Ombudsman found fault causing injustice on the complaint made by Mrs P on behalf of Miss Q against the Council. The agreed action remedies the injustice this caused.

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Investigator's decision on behalf of the Ombudsman

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