Summary: Ms B complains about the Council’s handling of her requests to be moved from her current accommodation, where she is experiencing anti-social behaviour by her neighbour. Ms B also complains the Council has failed to consider key evidence about her mental health conditions when reassessing her housing priority. We have seen no evidence of fault in the Council’s handling that would enable us to question the merits of its decision.

The complaint

1. The complainant, who I have called Ms B, complains about the Council’s handling of her requests to be moved from social housing where she is being subjected to considerable anti-social behaviour by her neighbour (who is also a social housing tenant). Ms B says the Council has failed to consider key information about her existing mental health conditions when assessing her priority banding for housing. Ms B’s current housing is having an impact on her existing mental health conditions causing extreme distress. Ms B says the Council is ignoring her reports about her neighbour’s behaviour and harassment.
2. Mr C has been supporting Ms B with her complaint to the Council and then to us.

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What I have investigated

3. I have explained to Ms B that I have investigated her complaints about the Council’s assessment of her housing applications on mental health grounds. I am unable to investigate complaints Ms B has about how the Council has dealt with issues about her neighbour, another social housing tenant. This is because 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)
4. Ms B was aware of the above when she made her complaint to us and has also made a complaint to the Housing Ombudsman about the Council.

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The Ombudsman’s role and powers

5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
6. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants,

(Local Government Act 1974, section 24A(6), as amended)

7. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
8. 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

9. I have spoken to Ms B and Mr C about the complaint. I have considered the information they have provided in support of Ms B’s complaints. This includes information she submitted to the Housing Ombudsman.
10. I have considered the information the Council has provided in response to my enquiries.
11. Ms B, Mr C 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

Relevant legislation and guidance

Housing Allocation

12. 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) & (14))
13. The Council operates a choice-based lettings scheme via an arms-length Management Company which enables housing applicants to bid for available properties which it advertises.
14. The Ombudsman may not find fault with a council’s assessment of a housing applicant’s priority if it has carried this out in line with its published allocations scheme.
15. The Ombudsman recognises that the demand for social housing far outstrips the supply of properties in many areas. We may not find fault with a council for failing to re-house someone if it has prioritised applicants and allocated properties according to its published lettings scheme policy.
16. The Council’s housing allocation policy has five bands of priority –

• Band 1+ Critical Need
• Band 1 High Need
• Band 2 Medium Priority
• Band 3 Low Priority
• Band 4 General

17. The Council awards additional priority for housing where an applicant or member of their household has a medical, welfare or hardship need. Council approved Occupational Therapists undertake the assessment for awarding this priority. The Council assesses applicants (or household members) under the following categories of priority –

• Critical Medical Need – Where the applicant or member of their household has an immediately life threatening or progressive condition which is seriously affected by their current housing. Applicants requiring immediate hospital discharge that are unable to return to their previous residence in the long-term.
• High Medical Need – where a medical need results in a need to move because the current accommodation is not suitable and cannot be made suitable. There is an imminent risk of health deteriorating if the applicant (or household member) remains in unsuitable accommodation and moving would alleviate the problem. The move should also be supported by relevant medical professionals.
• High Welfare or Hardship need – Where there is an urgent need to move and a change of accommodation could alleviate the problem.
• Medium Medical Need – A medical need to move where the applicant’s current home is not suitable, and it may not be reasonable to make suitable. The accommodation is causing significant problems, but the applicant is managing to some extent. A change in accommodation could alleviate or significantly improve the problem.
• Medium Welfare or Hardship need – where there is not an urgent need to move but a change in accommodation could alleviate the problem.

Statutory nuisances

18. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
19. Typical things which may be a statutory nuisance include:

• noise from premises or vehicles, equipment or machinery in the street
• smoke from premises
• smells from industry, trade or business premises
• artificial light from premises
• insect infestations from industrial, trade or business premises
• accumulation of deposits on premises

20. 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.

21. There is no fixed point at which something becomes a statutory nuisance. 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.
22. 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.
23. 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.

What happened

24. This chronology includes key events in this case and does not cover everything that happened.
25. Ms B first reported issues with her neighbour to the Council in April 2018. She told the Council her neighbour was obstructing access to her rear garden. She asked the Council to help her but keep her details confidential because she found her neighbour intimidating. The Council contacted Ms B’s neighbour shortly after her report and was told by the neighbour they would move the item obstructing access.
26. Ms B contacted the Council again in February 2019 to discuss her concerns about her wellbeing. In April 2019, she reported her neighbour was again obstructing access to her rear garden.
27. The Council arranged to meet with Ms B in May 2019 after it had been unable to discuss her concerns by telephone. The Neighbourhood Officer and an Officer from the Tenancy Enforcement Team met with Ms B on 8 May 2019. At the meeting, the Neighbourhood Officer suggested referring the matter to the Tenancy Enforcement Team to help resolve the issues Ms B was having with her neighbour. Ms B declined as she was worried about the neighbour’s reaction. The Neighbourhood Officer agreed to refer Ms B for a health and housing assessment to consider if a move would help the situation.
28. An Occupational Therapist (OT) from the Council completed an initial triage assessment of Ms B by telephone in early May 2019. They noted Ms B’s diagnoses and the medication she was taking. The OT recorded that the noise disturbance caused by Ms B’s neighbour was impacting on her mental health. Ms B said she felt threatened by her neighbour’s behaviour but could not provide the OT with details of specific incidents. Ms B said she was worried about retribution if she reported her concerns to the Council’s Anti-social Behaviour (ASB)Team. The OT asked Ms B why she had not placed any bids for alternative properties on the Council’s choice-based lettings system. Ms B said she wanted a bungalow but understood she did not qualify for one. The OT explained to Ms B that any decline in her mental health caused by her housing would need to be supported by evidence through specialist medical reports showing that her current property was causing her ill-health. The OT tried to reassure Ms B that any concerns she reported to the ASB Team would be dealt with sensitively and confidentially. The OT noted that Ms B was not receiving specialist mental health support other than from her General Practitioner (GP) and that there was no evidence of a need to be rehoused on mental health grounds.
29. The Council confirmed the outcome of the OT’s assessment in writing to Ms B on 8 May 2019. Ms B submitted further information about the help she was receiving with her mental health conditions in June 2019. The OT considered this but found it did not change their original view that Ms B was not eligible for rehousing on medical, welfare or hardship grounds.
30. In August 2019, the Council received further contact from Ms B and an adviser from the Citizens Advice Bureau that was supporting her. Ms B continued to report issues and concerns about her neighbour’s behaviour and the impact this was having on her mental health. The Council urged Ms B to speak to the Tenancy Enforcement Team to try and resolve the issues with her neighbour, but she declined this.
31. At the end of September 2019, Ms B made a stage one complaint to the Council. She complained that she had repeatedly reported issues about the damage caused by her neighbour’s banging in the floor above her property and the noise nuisance. Ms B said the Council was aware she had been threatened with physical violence by her neighbour but had ignored her concerns. Ms B also complained that she had heard nothing from the Council when she had reported her concerns.
32. The Council responded to Ms B’s stage one complaint by telephone on 9 October 2019. The Council Officer explained to Ms B and then Mr C that no action had been taken by the Council at Ms B’s request. The Council recorded that Mr C terminated the call because he was unhappy with the Officer’s response.
33. Ms B escalated her complaint to stage two on 10 October 2019. Ms B said she felt the Officer who had dealt with her stage one complaint had been dismissive and rude. She complained again about the Council’s inaction and how distressed she was about her situation.
34. The Council responded to Ms B’s stage two complaint on 28 October 2019. It explained it had not approached Ms B’s neighbour about the problems she had reported because Ms B had asked the Council not to. The Council explained this was why Ms B had received no updates or correspondence from the Council about the matter. The Council advised Ms B to bid for properties if she wished to move. It also asked her to complete diary sheets recording the incidents involving her neighbour and advised her to contact the police if the neighbour threatened her. The Council said it would also send an officer to inspect the area to ensure Ms B had access to her rear garden. The Council apologised to Ms B for any inconvenience caused by a lack of earlier inspection.
35. On 10 December 2019, Ms B escalated her complaint to stage three because she remained dissatisfied with the outcomes at stages one and two. She felt the Council was ignoring her concerns and not taking the impact of her neighbour’s behaviour on her mental health seriously. Ms B said no one at the Council had asked to see the extensive medical evidence she had about her mental health needs and that her housing allocation was based purely on her physical health needs. Ms B said she expected to be assessed in person rather than over the telephone.
36. The Council spoke to Mr C while Ms B was unwell on 9 January 2020. Mr C explained there has been a misunderstanding and the ASB Team had not opened a case about Ms B’s neighbour. Mr C reported there were still issues with gaining access to the rear of Ms B’s property and the neighbour continued to cause a noise disturbance very late at night. Mr C told the Council Ms B simply wanted to move and was struggling with the situation.
37. The Council responded to Ms B’s stage three complaint on 29 January 2020. The Council noted from its records that Ms B had indicated on more than one occasion that she did not want the Council to approach her neighbour about the problems she was having. The Council also explained how it usually completed health and housing assessments initially by telephone. It explained it had not needed to meet with Ms B in person as it had the information required to reach the view that Ms B did not qualify for medical, welfare or hardship priority. The Council concluded it could not help Ms B with her situation unless she provided evidence of the anti-social behaviour by her neighbour and agreed for the Council to approach her neighbour about this. The Council suggested mediation between Ms B and her neighbour as a positive way of resolving the issues.
38. Ms B brought her complaint to us because she remained dissatisfied with the Council’s response.

My findings

39. I have a great deal of sympathy for Ms B. It is clear from speaking to her that her situation is causing her significant distress and I understand she has moved out of her property to help minimise the impact on her mental health. There is also no doubt that Ms B has been reporting concerns to the Council about this issue for some time.
40. Ms B is aware that the Housing Ombudsman is responsible for investigating her complaints about the Council’s handling of her anti-social behaviour complaints. In terms of noise disturbance, it does appear the Council has followed the usual approach by asking Ms B to provide evidence so it can consider if this requires action as a statutory nuisance. The Council is dependent on evidence if it is to pursue any action against Ms B’s neighbour. I find no fault in the Council’s approach in Ms B’s case. It remains open to Ms B to provide the Council with the evidence it needs to consider further action in respect of the noise disturbance caused by her neighbour.
41. I also find no fault in the Council’s assessment of Ms B’s medical needs. It followed the procedure described in its housing allocation policy and an appropriately qualified Occupational Therapist completed the initial assessment. They did so based on all the information Ms B had provided about her mental health conditions. I cannot question the merits of the decision the Council made where it has acted in accordance with its established procedure. I also do not consider an assessment of Ms B in person was likely to alter the conclusions the Occupational Therapist reached.

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Final decision

42. I have completed my investigation with a finding of no fault by the Council.

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Investigator's decision on behalf of the Ombudsman