Summary: Ms X complains about the Council’s handling of her reports about a Council tenant’s anti-social behaviour. The Ombudsman has decided to uphold Ms X’s complaint. This is because we find the Council failed to consider using its general powers under the Anti-Social Behaviour, Crime and Policing Act 2014 and to provide Ms X with details of possible victim support. This caused Ms X distress and uncertainty. To remedy this, the Council has agreed to apologise to Ms X, make her a payment and make several service improvements.

The complaint

1. The complainant, who I shall refer to here as Ms X, is a leaseholder in a block of flats. She complains about the Council’s handling of her reports about a Council tenant’s anti-social behaviour (ASB). She complains the Council:
1. failed to act on instances of reported anti-social behaviour by its tenant, particularly during the period of notice served on the tenant;
2. failed to adequately investigate with all neighbours, including those who explicitly said they were scared of the tenant, during the Community Trigger case review process; and,
3. missed opportunities to take action against its tenant.
2. Ms X says the situation has caused her ongoing stress and anxiety. Ms X says she fears bumping into the Council’s tenant in the communal area, particularly when cleaning this area. Ms X says she finds the tenant volatile and, when angry, very intimidating. She says the Council’s tenant knows she complained to the Council about his behaviour and that of his associates who visit his flat.
3. Ms X said she had to move out of her property in 2018 due to the stress. She says she rents out her property now, and she has lost one tenant due to the impact of the Council tenant’s ASB. Ms X is concerned that she may lose her current tenant early too, which would result in financial loss.

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What I have investigated

4. Ms X complains the issues with the Council’s tenant have been ongoing since 2013.
5. I have investigated Ms X’s complaint from July 2019 until January 2021. The last section of this decision statement explains my reasons for not investigating matters that predate this given the amount of time that has passed.
6. It also explains that I have investigated action taken by the Council’s ASB team when it responded to Ms X’s complaints of ASB. I have not investigated any action taken by the Council’s housing management service in its role as the landlord of its tenant. However, I have referred to it, where necessary, to understand the action taken by the Council.

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The Ombudsman’s role and powers

7. 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)
8. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
9. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
10. 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)
11. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
12. 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

13. I considered the information and documents provided by Ms X and the Council. I spoke to Ms X about her complaint.
14. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

What should have happened

Anti-social behaviour

15. Councils have a general duty to take action to tackle anti-social behaviour (ASB).
16. Section 2 of the Anti-Social Behaviour, Crime and Policing Act 2014 (the 2014 Act) defines anti-social behaviour as:
1. conduct that has caused, or is likely to cause, harassment, alarm or distress to any person;
2. conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises; or
3. conduct capable of causing housing related nuisance or annoyance to any person.
17. 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.
18. 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.

Community Trigger process

19. The Anti-social Behaviour, Crime and Policing Act 2014 introduced the right for victims of anti-social behaviour (ASB) to ask for an ASB case review. This is a formal review by relevant local bodies into the actions taken to deal with reports of anti-social behaviour. These reviews are also known as the ‘Community Trigger’.
20. The bodies collectively responsible for ASB case reviews, often referred to as Community Safety Partnerships, are:

• the local council;
• police;
• NHS Clinical Commissioning Groups; and
• social housing providers chosen to be part of the group.

21. If the threshold has been met, the relevant bodies should undertake the review. 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 more 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.
22. We can only consider councils’ actions in an ASB case review. Any contribution made by other relevant bodies, such as the police, is not in our jurisdiction.
23. Relevant bodies must also publish details of the local review process.

Westminster City Council’s local policy

24. The Council’s published information on its ASB case review process says: a review will be undertaken if an individual has complained to the Council, police or a registered housing provider (social landlord) about three separate incidents in the last six months and the individual considers there has been no action taken.
25. The Council has published data on use of its community trigger process.

What happened

26. Ms X is a leaseholder of a flat, which she has been renting out to private tenants since 2018. She returns to the property mainly to clean the communal area.
27. Mr B is a Council tenant who Ms X complained about in her reports of ASB.

July to September 2019

28. In July 2019, Ms X reported ASB by Mr B to the Council. She reported loud noise and banging.
29. In August, the Council closed Ms X’s case as no further incidents of ASB had been reported.
30. Ms X complained to the Council.
31. In mid-September, the Council replied to say it had reviewed its historic handling of the case and found no fault in this. It asked Ms X to report any further incidents.

February to October 2020

32. In February 2020, Ms X reported noise and ASB from Mr B.
33. In April, Ms X reported mess in the communal area and a smashed window, which she said Mr B had caused.
34. The Council’s ASB Case Manager replied to Ms X. She confirmed the Council had taken the following action so far in 2020:

• February: the ASB Case Manager had met with the Police to discuss the action to be taken;
• March: Mr B was given a verbal warning; and
• she had raised a request with the Council’s repairs team for repairs to be carried out to the communal areas.

35. Ms X reported damage to the communal areas again.
36. The Council’s ASB Case Manager replied to say she was working from home due to COVID-19. However, she had asked a Local Neighbourhood Police Officer to visit Mr B and speak with him. She confirmed she had raised a repair request again with the Council’s repairs team.
37. Ms X replied to ask whether this meant other residents would have to cover the cost of the damage caused by Mr B.
38. The Council’s ASB Case Manager replied to Ms X. She asked Ms X to send evidence Mr B had caused the damage. She explained she did not have any evidence of this or complaints from other residents that Mr B caused the damage.
39. A week later, Ms X complained about further damage to communal areas that she said Mr B had caused. She attached photographs of the damage.
40. The ASB Case Manager said she would gather further information from other residents. She said she was in contact with Mr B and was working with other agencies to make sure the damage did not happen again.
41. At the end of May, the ASB Case Manager told Ms X that Mr B had denied causing the damage and there was no evidence to support the report. She asked Ms X to provide supporting evidence or details of an eyewitness.
42. Ms X replied to ask the Council to consider installing a camera in the communal area to gather evidence. She asked if the Council could consider looking at the evidence gathered over the years to consider other action it could take.
43. At the beginning of June, the ASB Case Manager said she was looking into Ms X’s CCTV request.
44. Ms X sent the Council a recording of loud shouting that another resident had recorded and a statement from two residents of noise disturbance.
45. The ASB Case Manager replied to say she was working with the police to address the issue and would interview one of the affected residents.
46. A few days later, the ASB Case Manager said Mr B had accepted responsibility for the noise nuisance and ASB. She said Mr B would receive a written warning. She explained that, if the behaviour continued, she would consider making an Acceptable Behaviour Agreement with Mr B.
47. Ms X sent further video footage and evidence to the Council from a resident, which was potentially criminal in nature.
48. The ASB Case Manager replied the same day to say, due to the content of the evidence, she was following up with the police. She asked Ms X to report such conduct to the police to ensure all parties are safe. She had separately contacted the resident who had gathered the evidence to tell them this.
49. Ms X made a Community Trigger application to the Council.
50. In mid-June, the Council replied to tell Ms X that her application had shown enough reports to prove the threshold for a case review had been met.
51. Ms X chased the ASB Case Manager for a response on her CCTV request. She said she was concerned for residents as Mr B was aware of the reports made against him, which may have contributed to his arrest earlier in June.
52. A week later, the ASB Case Manager said she would complete a “test of appropriateness” for the CCTV in the next two days. She had chased the Council’s CCTV surveyor for their advice on this. However, she said it would be more appropriate to use actions directed specifically at Mr B.
53. A few days later, the ASB Case Manager updated all individuals who had reported ASB in the block of flats. She said the Council, police and external agency had agreed on a course of action regarding Mr B’s behaviour. She asked the complainants to keep her updated and to call the police if appropriate.
54. At the beginning of July, the ASB case review panel considered Ms X’s application.
55. Ms X reported further damage to the communal area.
56. The next day, the ASB Manager replied to say:

• given the number of reports received from the police and other tenants regarding ASB in the communal areas and the building, the Council had decided it was not proportionate to install a camera in the communal areas;
• instead, the Council and police were working together to take direct action towards Mr B; and,
• she asked affected individuals to continue to report ASB. She asked Ms X to confirm if the damage to communal areas was witnessed by anyone.

57. Ms X reported further damage to the communal area and broken furniture left on the roof. Ms X asked if Mr B had returned to the flat.
58. In three separate emails, the ASB Case Manager replied to confirm:

• all complainants had been informed of the reasons for closing the cases, mainly due to no further incidents being reported. She said complainants were encouraged to report any new incidents;
• she had tried to contact residents of relevant properties, but not received any additional information or complaints; and,
• she gave Ms X details of the housing team to arrange cleaning of the communal areas. She told Ms X to raise charging issues with the leasehold team.

59. At the end of July, the ASB Case Manager asked Ms X to send a witness statement on Mr B’s ASB and the impact on her. She said this would assist with the legal action the Council would pursue against Mr B.
60. The ASB Case Manager told Ms X that she had received no further complaints recently. She said the police investigation was ongoing and subsequently confirmed Mr B would not be returning to the property for some time.
61. At the beginning of August, the Council wrote to Ms X with the review panel’s decision. It said Mr B’s behaviour was “cyclical” meaning his behaviour improved when he engaged with support services, until an event caused a deterioration in engagement and behaviours. It said steps would be taken to assist Mr B with reengaging with support and services. It set out an action plan for Ms X’s complaint and said it would serve an Acceptable Behaviour Agreement on Mr B.
62. At the end of August, Ms X complained to the Council about its handling of her reports of ASB.
63. In September, the Council sent Ms X its stage one complaint response. It said it did not uphold her complaint. This was because it found no fault in the way her case had been managed.
64. At the end of September, the Council’s ASB Case Manager wrote to Ms X to confirm her case was closed.
65. In October, the Council sent Ms X its refusal decision following her Community Trigger appeal.

January to April 2021

66. In January 2021, Ms X chased the Council for an update on Mr B’s return.
67. The ASB Case Manager said she would have this information in March.
68. The Council began legal action for possession of Mr B’s flat.
69. In February, the ASB Case Manager wrote to Ms X to confirm Mr B had been released from prison. She said she would look into taking enforcement action regarding past ASB and to prevent this happening.
70. Ms X replied to report Mr B had returned to live at the property. She reported feeling intimidated by the behaviour of Mr B. She reported the communal area becoming dirty again and that she felt intimidated when trying to clean the area.
71. Two days later, the ASB Case Manager wrote to Ms X to confirm she had spoken with the Council’s legal team. Following this, she had decided to take legal action against Mr X under the tenancy agreement. She said the housing team had been asked to address the state of the communal area.
72. In April 2021, Ms X complained to the Ombudsman.

Analysis – was there fault by the Council causing injustice?

The Council’s handling of Ms X’s reports of anti-social behaviour

73. Ms X complains the Council failed to act on instances of reported ASB by its tenant, Mr B (part a of the complaint). She says the Council missed opportunities to take action against Mr B (part c of the complaint).
74. I have considered the Council’s response to Ms X’s reports of ASB between July 2019 and April 2021. Based on the evidence I have seen, including the Council’s Community Trigger Review letter and subsequent appeal, I find the following:

• The Council’s ASB Manager took the following action: in February 2020, the Council gave Mr B a verbal warning following Ms X’s reports of ASB. This was followed by a written warning in June because of the video footage sent by Ms X. Both of these actions were taken in the Council’s role as Mr B’s landlord. Based on the emails between Ms X and the Council’s ASB Case Manager, I understand that the Council began taking legal action against Mr B in January 2021. Court proceedings for possession of Mr B’s flat began at this point. As explained in the final section of this decision, I cannot look at the Council’s actions here where it has acted in its capacity as Mr B’s landlord.
• However, I can consider the Council’s use of its general ASB powers under the Anti-Social Behaviour, Crime and Policing Act 2014 (the 2014 Act). Based on the evidence I have seen, I do not find the Council considered whether it could exercise any of these general powers alongside the action it took as a landlord. For example, I have not seen any clear signposting to Ms X of the Community Trigger Process since her reports of ASB in July 2019 or any evidence of decision-making by the Council around whether enforcement action through the use of civil remedies, such as an injunction or a Community Protection Notice, could address the ASB in the short or long term. The Council commits to considering this under its Statement on Policies and Procedures on Anti-Social Behaviour (2019). It is fault that the Council did not consider whether or not to use these powers in response to Ms X’s reports, including during the period when the Council was taking legal action for possession of Mr B’s flat. I would have expected the Council to have considered whether or not these general ASB powers could address the ASB in the shorter term while seeking possession.
• the Council’s Statement on Policies and Procedures on Anti-Social Behaviour states if an incident of ASB is reported to the City Council, it will “[i]nvestigate the incident, advise on options and, where appropriate, agree a course of action for tackling the problem.” However, the Council failed to consider creating this action plan until Ms X made a Community Trigger Review request. It decided to create this action plan during the Community Trigger Review process. This meant Ms X was first provided with an action plan in August 2020. This delay is fault, which caused Ms X uncertainty.
• At the end of September, the Council’s ASB Case Manager wrote to Ms X to confirm her case was closed. She said this was because she had not received any reports of new incidents of ASB by Mr B. However, she said the Council was waiting for information from the police before deciding whether further action was necessary. She expected to receive this information in early 2021. The information provided here is conflicting. This is fault. It is my understanding that the information from the police was important in deciding whether Ms X’s reports of ASB had been resolved, but the Council closed her complaint. This caused Ms X distress and uncertainty.
• The Council’s Statement on Policies and Procedures on Anti-Social Behaviour says, if an incident of ASB is reported to the Council, it will: link the complainant to other witnesses to prevent feelings of isolation; provide information on support agencies, such as Westminster Victim Support; and complete a risk assessment for the case. I have not seen any evidence that this support has been provided to Ms X, particularly following the serious, potentially criminal incident reported in June 2020 or in advance of Mr B’s return to the property in early 2021. This is fault. This caused Ms X distress and uncertainty about the support she could access as a victim. She told the Council she felt intimidated by Mr B’s actions. However, I do not find the Council sufficiently assessed Ms X’s vulnerability in these circumstances.

75. I, therefore, uphold parts a and c of Ms X’s complaint as there was a lack of clear decision-making on whether the Council had considered using its general ASB powers. This caused Ms X distress and uncertainty.
76. Based on its Community Trigger appeal decision from October 2020, I understand the Council found its Community Trigger appeal process was not sufficiently separate from its complaints process. To resolve the fault it had identified, the Council updated its website to remove the advice that the complaints process offered a further appeal route following its Community Trigger appeal process. I find this sufficiently remedies the fault identified by the Council.

Evidence from neighbours during the Community Trigger Review process

77. Ms X complains the Council failed to adequately investigate with all neighbours, including those who explicitly said they were scared of its tenant, during the Community Trigger case review process (part b of the complaint).
78. Based on the evidence I have seen, the Council used electronic means of communication to carry out a “virtual door knock” of residents to gather evidence. This was due to COVID-19 related restrictions preventing in-person evidence gathering. It is my understanding that this did not lead to any additional information or complaints at that time. The Council’s ASB Case Manger told Ms X this in July 2020 and it was confirmed during the Community Trigger Review.
79. The Community Trigger Review showed the Council had tried to gather evidence from a vulnerable tenant who Ms X had brought to the Council’s attention. However, the vulnerable tenant told the Council they did not wish to be involved in the process or make any ASB reports.
80. I find the Council made suitable efforts to gather evidence from other potential ASB victims. It is not fault that this did not lead to new or additional evidence or that one resident chose not to contribute. I do not uphold part b of the complaint.

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Agreed action

81. Within four weeks of my final decision, the Council has agreed to:
1. apologise in writing to Ms X for the fault causing injustice; and,
2. make Ms X a payment of £200 for the distress and uncertainty caused. When recommending this payment, I have considered the Ombudsman’s published guidance on remedies.
82. Within three months of my final decision, the Council has agreed to make the following service improvements:
1. send a reminder to staff about considering whether to create an action plan with complainants, as well as signposting the Community Trigger process and victim support advice, at an early stage of investigations into reports of ASB;
2. review its guidance to staff on the handling of reports of ASB by its tenants to ensure it is clear to staff how and when they should consider using its general ASB powers under the 2014 Act; and,
3. share this decision with relevant staff.
83. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

84. I have completed my investigation.
85. I have decided to uphold parts a and c of Ms X’s complaint. This is because there was fault by the Council causing injustice. The above recommendations are suitable ways for the Council to remedy this, which the Council has agreed to.
86. I do not uphold part b of Ms X’s complaint because there was no fault by the Council causing injustice.

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Parts of the complaint that I did not investigate

Scope of the investigation

87. I 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 11 above.

Late complaints

88. Ms X say the issues with the Council’s tenant have been ongoing since 2013.
89. 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 ten above).
90. Ms X complained to the Ombudsman in April 2021. I have considered her reasons for not complaining sooner to us. However, I think that she could have complained to the Ombudsman sooner about matters that occurred from 2013 until July 2019.
91. As the Council has accepted the issues with Mr B are “cyclical” in nature and Ms X has been raising issues consistently with the Council, I have decided an investigation from July 2019 can be justified.

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Investigator's decision on behalf of the Ombudsman