Summary: Miss X complained about the way the Council handled her reports of anti-social behaviour (ASB) and about its decision about her priority on its housing register. There was a delay in making housing register decisions, for which the Council should apologise, but no fault in the way those decisions were made. There was no fault in the way the Council handled the reports of ASB.

The complaint

1. Miss X, a tenant of Bristol City Council (the Council) complained about:
1. the Council’s decision to award her band 3 priority on its housing register and its refusal to accept bids for housing;
2. the way the Council handled her reports of anti-social behaviour (ASB) by her neighbours, who were also Council tenants, from June 2022; and
3. the way the Council managed the removal of vehicles from the estate where she lives.
2. Miss X says the Council discriminated against her on grounds of race when dealing with these matters, and its failings have caused her considerable distress. She says her current property is not suitable for her as it does not meet her disability needs, and the failure to award higher priority means she is forced to stay there longer than necessary.

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The Ombudsmen’s role and powers

3. The Local Government and Social Care Ombudsman (LGSCO) investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, 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’. Injustice may include distress, inconvenience, or being put through avoidable time and trouble. If there has been a fault that has caused an injustice, we may suggest a remedy. (Local Government Act 1974, Sections 26(1) and 26A(1), as amended)
4. The LGSCO considers whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, Section 34(3), as amended)
5. The LGSCO investigates complaints about councils and certain other bodies. Where an individual, organisation, or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, Section 25(7), as amended)
6. The Housing Ombudsman Service (HOS) 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 HOS considers the evidence and establishes if there has been any ‘maladministration’, including circumstances where a landlord behaved unreasonably, treated the complainant in an inappropriate manner, or failed to comply with its obligations. (Paragraph 52 of the Housing Ombudsman Scheme)
7. The HOS Dispute Resolution Principles are ‘be fair’, ‘put things right’ and ‘learn from outcomes’. We will apply these principles when considering whether any redress is appropriate and proportionate for any maladministration or service failure identified.
8. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
9. If the LGSCO is satisfied with an organisation’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)
10. Following an investigation, the HOS may order a member landlord to take steps to put things right. (Paragraphs 54-55 of the Housing Ombudsman Scheme)

Scope of our investigation

11. 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 and Paragraph 42 of the Housing Ombudsman Scheme)
12. The Housing Ombudsman Scheme at paragraph 42(a) states it will not investigate complaints, which, in the Ombudsman’s opinion:

a) are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the [Housing] Ombudsman is satisfied that the member has not taken action within a reasonable timescale.

13. Complaint c) relates to the removal of a vehicle that was not displaying a carer’s permit in 2020. LGSCO will not investigate this part of the complaint on the grounds that it is late and we cannot achieve a worthwhile outcome given the lapse of time since the event complained about. It is not clear if this complaint has exhausted the Council’s complaints process, which means HOS cannot investigate this complaint. LGSCO decided not to exercise discretion to do so.

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How we considered this complaint

14. Miss X’s complaint covers matters that fall under the jurisdiction of both the Local Government and Social Care Ombudsman (LGSCO) and the Housing Ombudsman Service (HOS).
15. Each Ombudsman has therefore investigated the parts of the complaint that are within its jurisdiction and jointly considered the parts of the complaint that fell within both jurisdictions. This decision statement covers both investigations.
16. We considered:
• the information Miss X and her representative, Mr Y, provided;
• the information the Council provided in response to our enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, available on our websites.
17. This decision sets out the key events. It does not attempt to include everything that happened or refer to every record considered.
18. Miss X, Mr Y, and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What we found

Relevant law and practice

Housing allocations

19. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants and its procedures for allocating housing. All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, Section 166A(1) and (14))
20. An allocations scheme must give reasonable preference to applicants in the following categories:

• homeless people;
• people in insanitary, overcrowded, or unsatisfactory housing;
• people who need to move on medical or welfare grounds;
• people who need to move to avoid hardship to themselves or others.
  (Housing Act 1996, section 166A(3))

The Council’s allocations scheme

21. The Council’s scheme prioritises applicants using four priority bands. Relevant to this complaint:
• Band 1: Urgent medical need. This includes those with a serious or life threatening physical or mental health problem, which is directly linked to their current housing. Band 1 reflects their urgent need to move to enable them to function independently and safely and/or carry out normal activities of daily living and/or to reach essential facilities.
• Band 2: Urgent need to move due to domestic abuse, violence or other harassment where the applicant is at serious risk of harm.
• Band 3: Medical or welfare need to move. This includes those with a physical or mental health problem that is in part related to their current housing and could be helped by rehousing to a different type of accommodation or area.
22. The priority used is either the date the application was assessed for the band or backdated by six months where the applicant has one or more composite housing needs. Applications can only be backdated by a maximum of six months. The allocations scheme does not specify a timescale for carrying out a review LGSCO considers eight weeks is an appropriate timescale for completing a review in most cases.

Equality Act 2010

23. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport, and the carrying out of public functions.
24. The Equality Act 2010 makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. The protected characteristics include disability and race.
25. We cannot decide if an organisation has breached the Equality Act 2010, as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
26. Direct discrimination occurs when a person treats another less favourably than they treat or would treat others because of a protected characteristic and is generally unlawful. Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion, or practice which puts persons sharing a protected characteristic at a particular disadvantage.

ASB.

27. Councils have a general duty to take action to tackle ASB. ASB can take many different forms; and councils should make informed decisions about which of their powers is most appropriate for any given situation.
28. LGSCO can investigate how councils respond to an ASB report and consider using their general powers to address ASB.

Noise nuisance

29. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’, such as noise.
30. For the issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
• injure health or be likely to injure health.
31. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
32. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
    Councils can also decide to take informal action if the issue complained about is causing a nuisance but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.
33. LGSCO can investigate how councils consider whether noise amounts to a statutory nuisance.

The Council’s policy

34. The Council’s website says:
• it will only investigate a noise complaint if the noise happens regularly, and the complainant has completed a 14-day noise diary;
• it will investigate noise from neighbours, such as loud music, shouting, or DIY at night;
• it cannot investigate everyday household noise, such as footsteps, doors closing, vacuum cleaners, washing machines, children playing, babies crying, or talking.

Complaint about housing allocations

35. This part of the complaint has been investigated by LGSCO.
36. The Council accepted Miss X’s application to join its housing register in 2015. In early 2020, she was injured in her Council property. This aggravated health conditions she already had and led to her being in chronic pain. The Council awarded additional priority based on her mobility issues in April 2020. Miss X’s complaint about the way the Council considered her priority in 2020 has been considered previously by both Ombudsmen separately.
37. In May 2021, Miss X raised concerns about how long she would have to wait for a property. She said:
• her physical and mental health had deteriorated;
• she was seriously affected by ASB from a neighbour; and
• she could not use the Council’s ‘Homeswapper’ scheme (whereby tenants exchange properties) because of her disabilities.
38. The Council reviewed the priority band. It wrote to her on 27 January 2022 to confirm it had awarded band 3, based on a need to move for welfare reasons. It did not award her additional health priority because it said her health condition did not affect her housing situation.
39. Miss X asked for a review and provided further supporting documents. She said she had a number of health problems, including that she was in constant pain, had mobility issues that meant she could not access communal facilities, had difficulty with the stairs, and could not use the lift. She said she felt imprisoned in her home, which negatively affected her mental health.
40. The Council wrote to her with the outcome of the review in April 2022. Its letter said it had taken into account that Miss X was now receiving personal independence payments (PIP). It said band 3 was sufficient to recognise her mobility issues but back-dated her priority date by six months because she was eligible for both health and welfare priority. Its letter said it noted she was mainly bidding for houses and suggested she should bid on all property types to improve her chances of being housed.
41. In response to my enquiries, the Council confirmed its reviewing officer had considered all the information Miss X had provided in support of her request for a review and the other information it already had in relation to the application.
42. From June 2022, Miss X reported ASB from a new neighbour, which she said affected her mental health. In July 2022, her GP wrote to the Council to express their concern about Miss X’s housing, which they said seemed unsuitable for Miss X to recover her physical and mental health. Also in July, Miss X spoke to a housing officer, who suggested she should consider providing more evidence of her health conditions, as that might increase her priority for rehousing. The housing officer also suggested she bid for properties more frequently and consider the Homeswapper scheme again.
43. In August 2022, Miss X complained. She said the Council should move her urgently as a result of the ASB and her health conditions. She also reported being sensitive to noise, both from the neighbours and from communal parts of the building, and said she was affected by noise from a nearby children’s playground. She said the Council had institutionally discriminated against her.
44. The Council responded in August 2022. It said it had awarded band 3 on welfare grounds in January 2022. It reviewed its decision in April, back-dating her priority date by six months in light of new information provided, which indicated she was also eligible for health priority. Its decisions were in line with its allocations policy. It appreciated that she was frustrated about not moving, but there was no evidence to show she had been treated differently because of her race or disabilities.
45. Miss X remained unhappy, and the Council responded at stage 2 of its complaints process in late September 2022. It repeated its decision that the priority awarded was in line with its allocations scheme but said it would review this if she provided new evidence. It referred to previous complaints to LGSCO and HOS, in which neither found fault with the Council. It was sorry that rehousing was taking time, but that was not due to discrimination or victimisation. It said the demand for social housing in Bristol vastly outstripped supply.
46. In response to our enquiries, the Council explained Miss X had provided new information in July 2022 but it was not able to consider this until November 2022, due to a backlog of cases resulting from staff shortages the previous year. It confirmed the new information did not affect Miss X’s priority and provided a copy of its decision letter dated 4 November 2022, which explained its decision.
47. In its enquiry response, the Council explained that the information Miss X provided did not indicate she was unable to manage the activities she listed, although it accepts she has significant difficulty doing so. It said she lives with an adult relative who is able to provide some support, and she has adaptations to support her with some activities. It added that the difficulties Miss X described were not untypical of those experienced by other applicants who have been awarded Band 3 healthy priority. It appreciated her frustration at not being rehoused, but this was an unavoidable consequence of the acute shortage of social housing in the area, which is almost entirely outside the Council’s control.

LGSCO findings – housing allocations

48. As explained in paragraph 19, councils are required to give reasonable preference to certain categories of applicant in their allocations scheme. I have set out at paragraph 20 the way this Council’s scheme provides reasonable preference for those applicants using priority bands.
49. The LGSCO recognises that the demand for social housing far outstrips the supply of properties in many areas. LGSCO will not find fault with a council for failing to rehouse someone if it has prioritised applicants and allocated properties according to its published lettings scheme policy. We will not find fault with the council’s assessment of an applicant’s priority if this has been carried out in line with the published allocations scheme.
50. When applicants bid on a particular property, the Council will offer the property to the applicant with the highest priority in line with its allocations scheme. This means taking into account the priority band and the priority date (the time they have been waiting) for the various applicants. There is no evidence that the Council has failed to do this. It has advised Miss X to bid on properties regularly and on a wide range of properties to increase her chance of success, which was appropriate.
51. Miss X has raised concerns a number of times over recent years about the priority the Council awarded her on its housing register, and the length of time she has been waiting for rehousing as a result. The Council reviewed her priority on a number of occasions, including in January 2022, April 2022, and November 2022. In April 2022, in light of additional information Miss X provided, including that she had been awarded a PIP payment, the Council awarded her additional priority. As a result, it backdated her priority date by six months.
52. Having considered the records, there was no fault in the way the Council carried out the reviews. Its decisions were in line with its published scheme, and it wrote to her on each occasion explaining the reasons for its decision. There was a delay in carrying out the review on each of the occasions mentioned, which the Council said was due to staff shortages that year. Those delays were fault, which caused Miss X frustration but did not affect her position on the housing register and did not mean she missed out on an offer of housing.
53. There is no evidence the Council has discriminated against Miss X, directly or indirectly, on the grounds of her race or any other grounds, either in the way it assessed her priority or in the way it communicated with her.

Complaint about ASB

54. This part of the complaint has been investigated jointly by both Ombudsmen.
55. On or around 9 July 2022, Miss X reported ASB from neighbours, who were also Council tenants and had moved into the same building in June 2022. She said there was shouting, loud music, slamming of doors, throwing of heavy objects, hitting the walls of her property, and a baby crying. She reported that the noise occurred after 11 p.m. and went through the night.
56. Miss X expressed concern about approaching her neighbour herself in order to resolve the issue and also expressed concern that the noise was impacting her mental health. She also raised specific safeguarding concerns about the neighbour’s household. She said the neighbours were considerate of other neighbours in the building who had the same racial background. The Council said the report was considered by its Neighbourhood Enforcement Team (NET), which is the team that considers whether the noise amounts to a statutory nuisance.
57. Also in July 2022:
• Miss X reported three further incidents;
• her GP wrote to the Council about her housing situation and referred to the ASB, which they said was making it difficult for her to sleep; and
• she spoke to a housing officer who asked her to complete diary sheets and said the noise would need to be witnessed by a Council officer.
58. Council records show it:
• opened an ASB case on 12 July and told Miss X it would contact her to discuss her concerns within 10 days;
• spoke to Miss X, advising her to keep a diary to record specific incidents, as it would be difficult to take action without that evidence;
• gave her diary sheets to complete and return;
• gave her general advice about her options for rehousing;
• spoke to the neighbour about the noise reported;
• consulted other relevant agencies (police and social care); and
• decided the noise complained about did not amount to a statutory nuisance.
59. In early August 2022, Miss X complained to the Council and it responded in late August. It confirmed it had not shared information about her with the neighbours and would not be taking enforcement action. It said:
• it understood that Miss X believed the neighbours were making noise to harass her personally, but there was no evidence of this;
• its neighbourhood enforcement team had investigated and considered it normal living noise; and
• no other neighbours had complained about the noise.
60. The records show the Council liaised with the police regarding the ASB issues. The police advised that they had spoken with Miss X regarding her reports but that she did not wish to pursue formal evidence collection procedures. The police therefore took no further action.
61. Miss X asked the Council to consider the complaint at stage two of the complaints process, and it responded in late September 2022. It said environmental health officers had investigated the noise reports and concluded the noise did not meet the threshold for statutory nuisance. It considered the noise to be everyday living noise, so it would not be able to take enforcement action. It signposted Miss X to its ASB policy so she could find out more about the definition of everyday noise. It reiterated that she should continue to report any further instances of noise.
62. In response to our enquiries, the Council said:
• Miss X had told it she did not want NET involved as it would need access to her property at unreasonable times (after 11 p.m.) to witness the noise;
• Miss X had made a similar complaint about the previous tenants in the same property, which it investigated and concluded was normal living noise. That investigation had been considered by HOS, which found no fault with its actions;
• the tenants complained about had since left the property, and it provided evidence to confirm this.

Our findings - ASB

63. LGSCO has investigated the way the Council considered whether the noise complained about amounted to a statutory nuisance.
64. The records show it considered the reports Miss X made and took appropriate action to establish whether this amounted to a statutory nuisance, including speaking to Miss X and the neighbour. It considered the nature of the noise complained about. Although diary sheets are not always needed to identify whether there is a statutory nuisance, these can be helpful to show the nature and frequency of the noise complained of, and it was appropriate for the Council to ask Miss X to complete them in the particular circumstances of this case.
65. LGSCO does not find fault with the way the Council considered whether there was a statutory nuisance, and therefore it cannot comment on the decision reached.
66. LGSCO also considered whether the Council had due regard to any other general ASB powers available to it and was satisfied the Council did not need to take formal action in the particular circumstances of this case.

Tenancy management

67. HOS has investigated the way the Council considered the ASB reports in its capacity as tenancy manager.
68. Not every instance of annoyance reported to the Council will be something it has the power to act on. In its housing management capacity, the Council has two main duties when ASB is reported. The first is to undertake a proportionate investigation to establish the nature and extent of the ASB. The second is to weigh the evidence and the respective parties’ rights to enjoy their home and decide what action it should take. The Housing Ombudsman’s role is to determine if the Council carried out a proportionate investigation and whether the actions it took were within its powers.
69. In practise, the options available to the Council to resolve a case may not extend to a complainant’s preferred outcome, and it therefore becomes difficult to manage their expectations. In such instances, closely following the ASB policy ensures that the Council is acting fairly, that its response is proportionate to the issues being raised, and that its approach is consistent, even if it does not lead to the outcome requested by a complainant.
70. The Council’s ASB policy states that it will initially consider informal action to address ASB. The policy also notes that excessive noise may be considered ASB; however, noises such as a baby crying and everyday living noises may not. Its methods of evidence gathering include witness statements, noise diaries, and officer observations. It may include other relevant agencies and will provide complainants with an action plan about how it will address any reports. It may also take action, such as verbal warnings, or attempt mediation to help resolve issues.
71. In this case, following Miss X’s reports, the Council acknowledged the reports on the same day and provided its action plan within 10 days. Given that there was no indication of immediate danger, this timeframe was reasonable in the circumstances.
72. Its proposed action of raising the reports with the neighbour was in line with its policy. It is the Housing Ombudsman’s understanding that there is a high threshold of evidence required to pursue legal action regarding ASB. It was therefore reasonable and proportionate to attempt an informal approach initially.
73. Given the safeguarding concerns raised by Miss X, it was also appropriate that the Council involved third-party agencies, such as the police. As these agencies had no further concerns following their respective investigations, it was reasonable for the Council not to take further action in relation to those elements of Miss X’s reports.
74. While it was reasonable for the Council to request that Miss X continue to provide it with diary entries regarding noise, in order for it to take further action, it was also reasonable for it to seek further evidence, such as an officer witnessing the noise. However, Miss X declined its offer to have a witness attend her property after 11p.m. The Council’s policy does not refer to the option of professional noise recording equipment. Given Miss X’s reluctance to have someone attend her property, it would have been helpful for the Council to have set out its position on whether this option could be explored. However, this alone would not amount to service failure.
75. Given Miss X’s position regarding gathering further evidence, the Council could not reasonably be expected to take formal action against the neighbour for noise that it considered everyday household noise, as per its policy. In such circumstances, the Housing Ombudsman expects the Council to consider such other steps as are reasonably practicable to manage the situation to an amicable resolution.
76. In this case, the Council discussed Miss X’s concerns with the neighbour, which was reasonable and in line with its policies. The Council’s internal communications also show that it considered an ‘Acceptable Behaviour Contract’ between the parties but did not deem this proportionate at the time. It also proposed mediation, which would have provided the parties with an opportunity to understand each other’s concerns in a controlled environment. While Miss X declined this option, it was nevertheless appropriate for the Council to have offered it.
77. The Housing Ombudsman recognises that Miss X has experienced distress as a result of the ongoing ASB, which the Council has also acknowledged. However, based on the evidence provided to HOS, the Council has taken reasonable steps to seek to investigate Miss X’s reports, has appropriately advised where possible what steps it has taken, and has appropriately advised that it will continue to review any further reports.

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Action required

HOS orders

78. In accordance with paragraph 52 of its Scheme, the HOS found no maladministration in relation to the landlord’s handling of the ASB complaint, as set out above.

LGSCO agreed action

79. Within one month of the date of the final decision, the Council will apologise to Miss X for the uncertainty caused its delay in carrying out the reviews in 2022.
80. The Council will provide LGSCO with evidence it has complied with the above actions.

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Final decision

81. We have completed our investigation. LGSCO found fault causing personal injustice in relation to delays in making allocations decisions and recommended action to remedy the injustice. Neither LGSCO nor HOS found fault with the Council’s actions in relation to the ASB reports.

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Investigator's decision on behalf of the Ombudsman