Broxbourne Borough Council (19 001 511)

Category : Housing > Other

Decision : Upheld

Decision date : 22 Oct 2019

The Ombudsman's final decision:

Summary: Mr B complains the Council failed to take effective action to deal with an overcrowded property next to his own which was also a source of anti-social behaviour. We uphold the complaint finding examples of poor customer service in how the Council responded to Mr B’s contacts. We consider these caused Mr B injustice as distress and putting him to unnecessary time and trouble. The Council accepts these findings and has agreed to apologise to Mr B and pay him a financial remedy of £400.

The complaint

  1. I have called the complainant ‘Mr B’. He complains the Council failed to take effective action to deal with an overcrowded property next to his own. Allied to his concerns about overcrowding, Mr B also alerted the Council to anti-social behaviour associated with occupiers and/or visitors to the property; including nuisance caused by a barking dog.
  2. Mr B says that he and his family experienced distress because of the actions of the occupiers of the neighbouring property and the ineffective response of the landlord. He considers more effective action by the Council could have lessened some of that distress.

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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. 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. Before issuing this decision statement I considered:
  • Mr B’s written complaint to the Ombudsman and any supporting information he provided, including that provided in a telephone conversation.
  • Information provided by the Council in response to my written enquiries.
  • Any relevant law or policy referred to in the text below.
  • Comments and further evidence provided by Mr B in response to a draft decision statement setting out my proposed findings in this case. The Council also had chance to comment on this, but chose not to do so, other than to confirm that it accepted the proposed findings and remedy.

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What I found

Relevant Legal & Policy Considerations

  1. The Housing Act 1985 sets out that a house becomes overcrowded if more people sleep in it than a ‘permitted number’. The Act describes how to calculate that number based on room numbers and space. In addition, there are standards on ‘crowding and space’ set out in the Housing Health and Safety Rating System (HHSRS) introduced by the Housing Act 2004. Local authorities have enforcement powers to ensure landlords and occupiers of properties comply with this law. In general comments on the complaint the Council says that in deciding whether to enforce it will take account of matters including whether overcrowding results from a ‘deliberate act’ of the landlord or tenant. It will also consider if serving notice may lead to homelessness.
  2. Local authorities also have powers to investigate noise nuisance under the Environmental Protection Act 1990. The Act gives authorities powers to act against a ‘statutory nuisance’. The Act defines this as one that “unreasonably and substantially interferes with the use or enjoyment of a home” or that “injures health or be likely to injure health”. Environmental health officers will use their judgement to decide where a noise is a statutory nuisance. They will want to gather evidence about the nature, extent and impact of the reported noise before deciding. They often ask those reporting noise to complete diary sheets. If officers then also witness nuisance they may serve a notice on the source of the noise asking them to abate the nuisance. If not complied with or appealed, such notices can then form the basis for a prosecution.
  3. Local authorities also have separate powers to investigate anti-social behaviour. The Crime and Disorder Act 1998 requires local authorities to have Community Safety Partnerships and Section 17 of the Act places general duties on the Council to combat anti-social behaviour. In practice, local authorities will work with other organisations such as police or registered social landlords to decide which should act in individual cases. As well as powers to tackle statutory nuisance local authorities can consider using powers under the Anti-Social, Crime and Policing Act 2014.

Key facts

  1. Mr B lives in a residential area in the Council’s district. He is an owner-occupier. He lives with his family next door to a three-bed property rented out by a housing association. The same family has occupied the neighbouring property for several years, comprising a couple and their adult child. They also have a dog.
  2. Around April 2017 a second adult child moved into the neighbouring property with their eight dependent children. I cannot disclose the exact circumstances of why this happened, but Mr B understands it was unavoidable. I confirm this was so until July 2018. Mr B says he was at first sympathetic to the needs of the family and tolerated the extra noise created by the extra household.
  3. However, by March 2018 Mr B was finding the situation more stressful. By now a further adult had also moved into the neighbouring property, a partner of one of the adult children. There was also a second dog in the house. He contacted the housing association renting the neighbouring property asking it a series of questions around overcrowding, anti-social behaviour and noise from dogs barking. Clearly implicit in those questions, was Mr B’s unhappiness with the impact of the neighbours on his day-to-day life. The landlord referred Mr B’s correspondence to its ‘safer communities’ officer.
  4. Mr B first contacted the Council in June 2018. His initial enquiries asked the Council if it, or any other organisation, ‘governed’ or supervised registered social landlords. In August 2018 he made general enquiries about tenancy rules and what public funds social landlords received. His contacts made clear he had complained to his neighbour’s landlord and in August he provided the Council copies of his emails to the landlord. But he did not ask the Council to provide any specific service. In September 2018 he asked the Council to “confirm it had no interest” in the overcrowded property next door.
  5. In reply to these contacts the Council gave Mr B general information about registered social landlords and how they received public funds. It told Mr B that it had no role in managing properties owned by the neighbouring landlord and it was up to the landlord to set their own policies. It said that it had never said it was unconcerned about overcrowding but that it did not have any day-to-day control over how the landlord managed their properties.
  6. By October 2018 Mr B had also asked his MP to write on his behalf to his landlord. In response it suggested Mr B contact the Council if he wanted further investigation of noise nuisance. The landlord implied they knew of Mr B’s concerns and believed they were responding properly.
  7. In mid-October 2018 Mr B therefore contacted the Council again. He said he suffered anti-social behaviour from his neighbours. He believed the house next door overcrowded. He asked further questions wanting to know if the Council had any responsibility to prevent the overcrowding and what oversight it had over the actions of the housing association.
  8. Mr B received no reply and so chased for an answer to his enquiry at the end of the month. A senior housing officer (Officer X) then acknowledged Mr B’s contact at the beginning of November 2018. That officer passed the enquiry to the Council’s environmental health service to reply. In an internal email the officer recognised the Council may have powers to act to prevent overcrowding. Their email refers to “the Council’s EH responsibilities" and finding out if “from the perspective of the Housing Act [there is] statutory overcrowding”.  
  9. An officer who dealt with enquiries about private housing, working within the Environmental Health service (Officer Y) contacted Mr B in mid-November 2018. They spoke to Mr B by telephone and sent him an email. Their noted Mr B had a ‘multifaceted’ complaint which engaged different services. Officer Y offered to pass Mr B’s concerns about antisocial behaviour to an officer with responsibility for that service. They said the environmental health service could look into concerns about noise nuisance. Officer Y recorded Mr B not wanting to pursue either of these options. Mr B does not recall Officer Y discussing these matters when he spoke to them.
  10. Officer Y also said, “the environmental health service is not able to investigate your concerns regarding [the housing association] as landlord”. They noted Mr B still wanted to know more about relations between the Council and the housing association. Officer Y told him they could not answer specific enquiries about this. But they copied their reply to a legal officer as they “may be able to assist with your enquiry or pass it to an officer better able to help”. The Council says around this time Officer Y also undertook a ‘desktop exercise’ to consider if the neighbouring property was overcrowded. They decided it probably was. However, there is no mention of this in the emails sent to Mr B.
  11. Mr B chased a further response to his enquiries in December and sought help from his local Ward Councillor. In an email to his Councillor, copied to Council officers, Mr B said he would be “surprised” if there was not “statutory overcrowding” in the next door property. The Ward Councillor expressed concern that Mr B did not appear to be receiving satisfactory replies to his enquiries from the housing association. He copied his email explaining this to the housing association and Officer X “in the hope [they] can help”.
  12. In early January 2019, Mr B’s wife (Mrs B) used an online reporting tool to report nuisance dog barking from next door. An environmental health officer, Officer Z, discussed the report with Mrs B. He says she also referred to overcrowding and intimidation from the neighbours. Officer Z sent out diary sheets for Mr and Mrs B to complete.
  13. Officer Z sent a letter to Mrs B’s neighbour advising of the reported nuisance. They contacted Officer Z and denied their dog caused a nuisance. Officer Z says they then tried to contact Mrs B again who did not respond. Mrs B has no record of this contact. When by early February 2019 Mr and Mrs B had also failed to return diary sheets Officer Z closed the enquiry. Mr B says he became aware from his neighbour that they knew he had reported their dog barking. He does not know how the neighbours learnt this. He says it would not be obvious they had complained as there are several properties nearby. I have checked the Council’s records and find no reference to the Council telling Mr B’s neighbour that Mr and Mrs B were the source of the complaint.
  14. In late January 2019, Mr B escalated his concerns to make a complaint. His complaint was that his communications from October onward had not received a satisfactory reply.
  15. The Council acknowledged Mr B’s complaint in early March 2019 but did not reply to it until mid-March 2019. It advised Mr B to get back in touch with the housing association to explore his concerns. This caused Mr B to complain again in mid-March 2019 that this suggestion was inappropriate.
  16. Mr B separately got back in touch with environmental services in early March 2019. He again reported overcrowding and noise from the neighbouring property. The note of the call says Mr B did not want to pursue any service from the Council to look into the reports of noise. Mr B does not recall this matter being discussed.
  17. The Council reassigned Mr B’s case to Officer Y. In late March 2019 Officer Y contacted the housing association saying they were looking into Mr B’s reports of overcrowding and antisocial behaviour. After chasing a reply the housing association responded in mid-April 2019 and said for several months it had been aware of these issues and gave more background to Officer Y. Believing the property may be overcrowded Officer Y suggested a joint inspection with the housing association. They explained the Council’s legal powers to serve a notice on the landlord requiring it to take action to prevent any overcrowding.
  18. The joint inspection did not take place because around one week later, the non-dependent daughter’s household moved out of the neighbouring property. The Council comments that this did not take place only because of Officer Y’s intervention. It says that other factors, which I cannot disclose to Mr B, also influenced when the household moved. It also explains its involvement in trying to resolve the household’s housing need from October 2018. However, the record of a telephone call the Council received shortly after Officer Y’s intervention suggests it was decisive in the timing of the move.
  19. At the end of April 2019 Mr B reported to the Council he still experienced problems with dog barking. However, there is no record he has pursued a further service from the Council since that time.

My findings

  1. My investigation focuses on the six months between Mr B’s contact with the Council in mid-October 2018 and mid-April 2019, when the overcrowding of the neighbouring property stopped. I note that both before and after this time Mr B has reported problems caused by the occupiers or visitors to the neighbouring property. However, I have not investigated events outside the window identified as I cannot see evidence Mr B asked the Council to provide a service outside that time.
  2. I have noted that Mr B was in contact with the Council before October 2018. His emails from August alerted the Council that Mr B experienced problems with his neighbours and indicated overcrowding in the property. But they asked general questions about the management and funding of the landlord managing the property next door. They did not make any specific request for a service. I consider the Council could have made more effort in response to those emails to explain its policies towards matters such as statutory overcrowding or anti-social behaviour. But putting its replies in the context of what Mr B asked of it, I do not consider they were so poor as to justify a finding of fault.
  3. I find Mr B’s contact with the Council in mid-October 2018 more explicit in raising concerns about his neighbours which potentially engaged different Council services. There was some limited delay in the Council replying to Mr B’s enquiry. However, I do not fault the Council for this as it still responded to his initial enquiry through Officer Y in early November 2018.
  4. The Council’s reply to Mr B explained that different Council services might help with his reports of antisocial behaviour and noise nuisance. It put this advice in writing. There is no evidence to suggest Mr B wanted to take up these services. I cannot say if the Council is correct when it says it also offered these services by telephone call (both at this time and later). I accept Mr B does not recall this. But I have found no evidence Mr B asked for these services at any later date, which the November 2018 email from Officer Y alerted him to..
  5. However, there was still fault in how the Council responded to Mr B in early-November. Mr B’s contact made clear his understanding the neighbouring property was overcrowded, as had his earlier contact in September 2018. The Council always had the power to investigate if there was statutory overcrowding. It could potentially act against the landlord to prevent this. I am aware this would not be straightforward given all the circumstances of the case. However, the Council should still have explained its powers to Mr B. Officer X’s note from October 2018 clearly shows it recognised the need to find out if the property met the definition of ‘statutory overcrowding’. So did the subsequent ‘desktop exercise’ the Council refers to completing in November 2018. Yet neither of these actions was followed up or communicated to Mr B. That was fault.
  6. I accept Mr B’s questions around its relations with the housing association were not specific to the issue of overcrowding. However, I find Mr B always implied his interest in this issue (as Officer X noted) and it became clear as he corresponded with his Councillor. So, I find the Council should have given Mr B advice on its powers by December 2018 at the latest.
  7. I consider some basic poor administrative practice also contributed to Mr B not receiving this advice. Officer Y’s response to Mr B in early November 2018 implied another legal officer would respond to his questions about the housing association. But that did not happen. Mr B’s Ward Councillor then asked Officer X to note Mr B’s correspondence. But they did not reply either. Mr B’s email from October 2018 drifted without a full reply. That was fault.
  8. The Council had opportunity to remedy this in January 2019 when Mr B made a complaint. But more poor administrative practice followed. It failed to respond to Mr B’s complaint for several weeks. When it did, the Council then missed the point that Mr B’s dissatisfaction lay in receiving no complete reply to his enquiries about its relations with the housing association. In turn these were relevant to his concerns about overcrowding. It was not appropriate therefore for the Council to simply refer Mr B back to the housing association. Both the delay and the poor reply justify a finding of fault.
  9. I do not find fault in Mr B’s separate communication with the Council through Officer Z’s investigation of the dog barking nuisance. As I noted above there is no record to suggest Mr B actively pursued this. He did not provide the Council with information it would need to find out if there was a statutory nuisance it might prevent.
  10. I recognise Mr B’s concern that this contact could have led to his neighbours learning who had complained about their dog. I have found no evidence the Council compromised Mr B’s anonymity when his wife complained.
  11. In summary therefore I find the Council at fault:
  • For not explaining to Mr B its powers to tackle overcrowded houses.
  • For not taking action before March 2019 to explore using those powers.
  • For not responding fully to Mr B’s first contact in October 2018 having suggested he would receive a further reply.
  • For delaying in responding to Mr B’s complaint made in January 2019.
  1. I consider the injustice caused to Mr B from these faults twofold. First, the Council’s poor customer focus put him to more time and trouble than needed in pursuing his enquiries and complaint. Second, he has experienced distress as a result of the Council not intervening sooner with the housing association about the overcrowding.
  2. To expand on the second point, I note within a week of Officer Y explaining the Council’s powers to the housing association the second household next door moved away. Could an earlier intervention have produced the same result? On balance, I consider this likely based on the telephone call the Council recorded in April 2019 shortly after its intervention. This does not take away from the earlier efforts the Council made to resolve the household’s housing need. Or what the Council says about difficulties it encountered. But the intervention appears to have been decisive.
  3. Finally, I consider there is one factor which mitigates some of the injustice caused to Mr B. That is that he did pursue the Council’s offer of investigating noise nuisance or its offer to refer his case to one of its own anti-social behaviour officers. I cannot say if either of these actions may have resulted in an improved quality of life sooner for Mr B. But I think it possible given the way that its informal intervention in respect of the overcrowding produced results.

Agreed action

  1. To remedy the injustice identified in paragraph 39 the Council has agreed that within 20 working days of this decision it will:
  • Write to Mr B with an apology accepting the findings of this investigation.
  • Pay Mr B a financial remedy of £400.
  1. I consider the financial remedy fair having taking account of the Ombudsman’s published guidance on remedies. The Council is not responsible for the primary source of distress caused by Mr B’s neighbours. However, given what I have said in paragraph 40 I consider the Council’s delay in acting to prevent the overcrowding led to a “demonstrable loss of amenity” to Mr B. Our guidance recommends a tariff of between £75 and £350 a month for such distress.
  2. I consider the period of distress in this case to be three months, as even if the Council had acted promptly I think it reasonable it may have taken until January 2019 to resolve the overcrowding. From what I know of the problems Mr B experienced I consider a mid-range figure of £200 a month a starting point to reflect the extent of distress. But I have halved this to £100 a month given the factor introduced in paragraph 41. I then consider an extra £100 fair to reflect also Mr B’s time and trouble.

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Final decision

  1. For reasons explained above I have upheld this complaint finding fault by the Council caused an injustice to Mr B. The Council has now agreed action to remedy that injustice. I have therefore completed my investigation satisfied with its actions.

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Investigator's decision on behalf of the Ombudsman

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