Summary: Ms D complains the Council has failed to deal with anti-social behaviour on her estate. We found fault which caused uncertainty and distress to Ms D. The Council has agreed to apologise and make a payment to remedy this injustice.

The complaint

1. Ms D complains the Council has failed to deal with anti-social behaviour on her estate for the last sixteen years. As a result, she has been subjected to aggressive verbal and sometimes physical abuse by neighbours and the communal gardens have been destroyed.

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What I have and have not investigated

2. Ms D made a formal complaint to the Council in 2021; I am therefore exercising my discretion to investigate matters since 2020.
3. I cannot investigate actions the Council has taken in its role as landlord. These are within the Housing Ombudsman Service’s jurisdiction.

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The Ombudsman’s role and powers

4. 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)
5. We consider 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)
6. 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)
7. 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)
8. If we are 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)

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How I considered this complaint

9. I spoke to Ms D about her complaint and considered the information she sent and the Council’s response to my enquiries.
10. Ms D 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 I found

Anti-social behaviour

11. Councils have a duty to take action to tackle anti-social behaviour (ASB). 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.
12. ASB can take many different forms and councils should make informed and proportionate decisions about which of their powers is most appropriate to use in any situation. For example they may deal with noise as an environmental health issue, or where the alleged perpetrator is a council tenant, they may take action as part of their duties as a social landlord.
13. The 2014 Act introduced new powers for councils, the police and other bodies to tackle ASB. The statutory guidance which accompanies the Act sets out some early and informal interventions which may be used to address anti-social behaviour. These include verbal and written warnings, mediation and acceptable behaviour agreements.
14. Acceptable behaviour agreements are voluntary agreements used when someone has engaged in ASB, understands and accepts they did something wrong and wants support to change their behaviour.
15. Councils and the police also have powers to issue community protection notices to prevent anti-social behaviour which is having a negative effect on the community's quality of life, and which they decide is unreasonable.
16. In terms of assessing the impact of ASB on victims, the statutory guidance says it is good practice for agencies to assess the risk of harm to the victim, and their potential vulnerability, when they receive a complaint about anti-social behaviour.
17. The 2014 Act also provides a mechanism to review the way complaints about ASB have been investigated when someone believes an ongoing problem has not been addressed. This ASB case review is also known as the ‘Community Trigger’ process. When someone requests a case review, relevant bodies (which include the council, police and other agencies) must decide whether the local threshold for a case review has been met.
18. If the threshold is 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 further action, they should create an action plan.

The Council’s policy

19. The Council sent me its ASB procedures issued in 2010. These say it will determine the priority of each ASB report. After speaking to the complainant, the Council will write to the alleged perpetrator and interview them if appropriate.
20. As the procedures pre-date the 2014 Act, they do not refer to the powers or processes set out in the Act. The procedures say the Council may send written warnings; use acceptable behaviour agreements if appropriate; consider further investigation and legal action (such as injunctions or eviction). There is reference to working with the police.
21. For alleged perpetrators who are vulnerable, the Council’s policy says it will only take legal action after other interventions have been attempted and after consultations with the relevant support agencies.
22. The Council has tenancy sustainment officers (TSO) who help vulnerable residents to live successfully in their own homes. They can advise on the services available to support vulnerable residents, carry out assessments of vulnerable residents, and make referrals to the relevant support agencies. The policy says once a referral is made to the TSO they will carry out an assessment of the needs of the referee and agree a support plan. The TSO may convene a multi-agency meeting as a way of finding the best solution to any given problem.

Mental Capacity

23. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:
• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.
24. A council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision. The Mental Capacity Act 2005 (and its Code of Practice) describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
25. The Department for Work and Pensions may appoint a person to deal with the benefits of someone who cannot manage their own affairs because they’re mentally incapable or severely disabled. The “DWP appointee” is responsible for making and maintaining any benefit claims and spending the benefit in the claimant’s best interests.

What happened

26. This chronology is not intended to provide a detailed account of everything which happened or record all incidents of ASB, but to provide a general overview of the key issues and events.
27. Ms D is a private tenant (owns her own home?). She lived in the flat above Ms X who is a council tenant and has a severe long-term mental health condition. Ms X has a DWP appointee (Mr Y). She was not receiving any social care support from the Council.

Ms X’s behaviour

28. Ms D had been reporting incidents of ASB by Ms X to the Council since 2008. These were mostly about Ms X shouting or screaming verbal abuse at Ms D or others who came into the property. Ms D says Ms X would scream at her as she tried to get to her flat, would shake her walking stick at her and racially abuse people, to the extent that carers for other residents said they could not come and deliveries had to be left on the ground floor.
29. When Ms D reported an incident, the Council would contact Mr Y who would discuss the matter with Ms X. However, Ms X’s behaviour continued. I have seen no evidence from 2020 onwards that the Council spoke to Ms X directly or met with her, although there was some email correspondence with her. I have seen no evidence that Ms D’s reports of ASB were given a priority in line with the Council’s procedures or that the risk to Ms D was assessed.
30. In August 2021, the Council issued a warning letter to Ms X. This said that if there were further reports of ASB the Council would invite her in for an interview. It also referred to her tenancy conditions.
31. The Council visited the estate in September 2021 to ask other neighbours about the issue. The Council spoke to one resident and left calling cards with two others. Ms D says the Council failed to talk to another neighbour who had also complained about Ms X, even though he was in the property at the time. The Council says this was because it had already received his complaint.
32. Ms D reported an incident in October when she alleged Ms X had verbally and racially abused a health professional visiting another flat. This incident was not reported to the police. She asked the Council to make an acceptable behaviour agreement with Ms X.
33. The Council decided not to take any action against Ms X. It told Ms D this was because it did not have enough evidence and that it no longer used acceptable behaviour agreements. Ms D replied that this was incorrect as acceptable behaviour agreements were in the Council’s policy.
34. In November 2021 there was an internal discussion with a senior manager. This concluded that an acceptable behaviour agreement would not be appropriate for Ms X due to her mental health condition. The Council wrote to Ms D about this. Ms D complained. (I deal with the complaint correspondence below.)
35. In January 2022 the Council told Ms D it would hold a professionals’ meeting to consider Ms X’s behaviour. In April 2022 a senior manager requested a multi-agency meeting. The Council sought legal advice in June 2022. This said officers needed more information about Ms X’s mental capacity before considering legal action. The Council met Ms X’s GP and Mr Y in July 2022. It continued to discuss the reports of ASB with Mr Y but Ms X’s behaviour continued.
36. In November 2022, Ms D came to the Ombudsman and Ms X moved to new accommodation.

Communal gardens

37. Ms D had been reporting vandalism of the communal gardens by other residents since 2018. The Council sent warning letters to the perpetrator (who was a council tenant) in May and October 2020. It spoke frequently to her, each time an incident was reported, but she continued to cut down plants.
38. There was a meeting with managers in May 2021 and a further letter sent. In September 2021 the Council decided not to replace the plants and to return the area to grass. The Council decided that whilst the behaviour went against its tenancy conditions, it was not an enforceable breach of tenancy and therefore legal action would not be sought. It then removed the plants in February 2022.
39. In the meantime, it dealt with the perpetrator leaving pots with dead plants and various debris around the estate. Ms D says the perpetrator was also verbally abusive to her.

Ms D’s complaint

40. Ms D complained to the Council in December 2021. She said its failure to take action for many years meant it had lost control of behaviour on the estate.
41. The Council replied in January 2022. It said:
• The vandalism to the communal gardens had been addressed by putting in place measures to ensure residents understood they needed to seek permission before carrying out any work.
• It was working with Ms X to try to obtain more support from her family and from social care. It was arranging assessments but was not taking any enforcement action against her for ASB.
• It did not accept it had "lost control" of the matter and did not uphold the complaint.
42. Ms D asked for her complaint to be escalated to the next stage. She said the response contained factual inaccuracies, did not adequately address the substance of her general complaint, did not examine the preceding matters which had prompted the formal complaint, and made no attempt to remedy the ongoing problems on the estate.
43. The Council’s final complaint response in January 2022 said Ms X’s behaviour was not ASB but “behaviour that caused annoyance and upset”. The Council was trying to get more support for Ms X and enforcement was not appropriate.
44. It would consult residents on a plan to use an area for some of the residents gardening skills.
45. The Council then signposted Ms D to the Housing Ombudsman.
46. Ms D complained to us in November 2022. She said problems were continuing and the Council had not taken any action. She had reached the end of her tether and was concerned about the impact on another neighbour.
47. Ms D said it had been extremely stressful dealing with the Council. It had lied to her about not using acceptable behaviour agreements and knocking on the other neighbour’s door, had lied to her MP by implying the matter was being sorted out when it wasn’t, and had wrongly claimed Ms X’s behaviour was not ASB whilst upholding a similar complaint from another neighbour.

My findings

48. I have considered the Council’s use of its ASB powers since 2020. I realise Ms D has been complaining for many years, but I can make no finding about what happened before 2020.
49. I note the ASB procedures the Council has sent me are out of date. I have taken them into account but I have also considered the 2014 Act and its code of practice.

Ms X’s behaviour

50. When alleged ASB is reported, we expect councils to decide whether (if proved) the behaviour would amount to ASB. If it would, they should consider the risks to the victim and determine what priority to give the complaint. Councils should then investigate and decide whether to act. Councils are entitled to decide to take no action even if they consider there has been ASB.
51. The Council’s final complaint response says Ms X’s behaviour was not ASB. Whilst the Council is entitled to determine this, I find the Council’s decision making is flawed.
52. Ms X’s frequent and persistent verbal abuse of Ms D in her home appears to meet the definition of ASB in the 2014 Act, i.e., conduct that has caused, or is likely to cause, harassment, alarm or distress to any person; or conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises. Whilst this definition is somewhat subjective, we consider there are some behaviours which, if proved, would generally be considered ASB. These include verbal and physical threats and abuse and harassment. The behaviour also seems to meet the definition in the Council’s ASB procedure of “harassment” and/or “non-threatening verbal abuse”.
53. I have seen no evidence the Council determined Ms X’s behaviour was reasonable. Indeed, officers were discussing legal action, acceptable behaviour agreements and eviction and met the GP to discuss Ms X’s behaviour. The Council also upheld a similar complaint about Ms X, agreeing that there had been ASB.
54. In my view, the Council’s actions prior to the final complaint response indicate it had determined that Ms X’s behaviour was ASB. I therefore consider the final complaint response to be wrong and have examined whether the Council’s actions in relation to ASB were in line with the 2014 Act.
55. I have seen no evidence that Ms D’s reports of ASB were given a priority level as required in the Council’s procedure; nor that the risk to Ms D was assessed or considered. This is fault.
56. When Ms D reported incidents, the Council liaised only with Mr Y. I find this was fault. A DWP appointee’s role is only in relation to benefits. Unless Ms X had asked the Council to only talk to Mr Y and had given her consent for this (and I have seen no evidence she did), there was no reason for the Council not to communicate directly with her. I cannot say that if the Council had spoken to Ms X her behaviour would have changed, it is likely it would not have, but Ms D is left with some uncertainty about this.
57. The Council issued a warning letter in August 2021. Although Ms D had reported ASB in August 2020, I do not find there was delay. I would not expect a council to issue a warning letter immediately and I have seen no other reports of Ms X being abusive to Ms D until April and then July 2021.
58. The letter said the Council would interview Ms X if it received further reports of ASB. Ms D made another report a few weeks later but the Council did not speak to Ms X. It spoke to Mr Y and visited the estate about a month later. It then decided an acceptable behaviour agreement was not suitable due to Ms X’s mental health condition. It decided to take no further action in November 2021 but at that stage it had not sought legal advice or advice from social care.
59. If the complainant or perpetrator of ASB is vulnerable or suffering from mental health problems we would expect councils to consider whether they should make a referral to other services, such as social care or mental health. This was the role of the TSO, who became involved in September 2021. But it was not until June 2022 that the officers dealing with ASB were made aware that Ms X was not known to the social care team.
60. My view is that in autumn 2021 the Council should have been considering whether a mental capacity assessment of Ms X was necessary and whether to make a referral to social care.
61. The Council appears to have decided that Ms X did not have capacity to agree to or stick to an acceptable behaviour agreement. This is fault. Councils must assume adults have capacity unless there is a reason to doubt it. In which case councils should assess the person’s capacity to make that decision.
62. Ms X had a DWP appointee, this indicates that a decision had been made that she did not have capacity to manage her finances. This is sufficient doubt about Ms X’s capacity for the Council to consider whether a mental capacity assessment was necessary. It was therefore fault not to do so.
63. I cannot say whether a mental capacity assessment would have found that Ms X had capacity to agree to an acceptable behaviour agreement. But I consider that the failure to consider this has caused Ms D uncertainty, as she will never know whether an acceptable behaviour agreement could have been implemented and whether Ms X’s behaviour would have subsided after autumn 2021.
64. I find there was delay in 2022. In January 2022 the Council told Ms D it would hold a professionals meeting. This was eventually held in July 2022 and legal advice sought. I can see no good reason why the meeting could not have been held sooner.
65. The legal advice was that, as Ms X was vulnerable, before considering legal action the Council needed to understand Ms X’s mental capacity and social care needs. There had been no capacity assessment by the time Ms D came to the Ombudsman in November 2022.
66. There was fault in the Council’s final complaint response as it referred Ms D to the Housing Ombudsman. The Housing Ombudsman can only investigate complaints about councils’ handling of ASB by one of their tenants if the complainant is also a council tenant, which Ms D is not. Nor did the letter refer to Ms D’s right to request a “community trigger” ASB case review.
67. I therefore find Ms D was caused time and trouble and frustration by delay in 2022 and fault in complaint handling.
68. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Our guidance says that for distress and uncertainty caused by fault a payment up to £300 may be appropriate.

Communal gardens

69. The problems with the gardens had started in 2018, but I can make no findings about the Council’s actions prior to 2020.
70. I find there was no delay by the Council after May 2020. Although it took until September 2021 to decide it was best to remove the plants, I consider it was appropriate to warn the perpetrators and monitor the situation. I have seen that officers spoke frequently to the perpetrator so I see no evidence of drift. Whilst I can appreciate the distress caused to residents by the damage to the gardens, I do not find this was caused by fault by the Council.
71. The Council was entitled to decide in September 2021 not to take legal action and I have seen no evidence of fault in the way the Council decided that.

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Agreed action

72. Within a month of my final decision, the Council has agreed to apologise to Ms D and pay her £200 to remedy distress caused by the delay in 2022, the fault in the final complaint response, and the uncertainty caused by the failure to carry out a mental capacity assessment.
73. The Council should provide us with evidence it has complied with the above actions.

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Final decision

74. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman