Unwelcome in the valleys

While we are in Wales and with thanks to the Garden Court housing bulletin, we report an Ombudsman’s decision Complaint against Cardiff CC 200702358 [pdf]

Mr Davies and Miss Brown complained about Cardiff Council’s failure to deal with noise nuisance and threatening behaviour from Mr Williams over a period of some years. All parties were Council tenants, Mr Williams lived in the flat below the complainants.

The Council’s failure to deal with Mr Williams had been the subject of a previous Ombudsman’s report in 2007 (200501496/7/8), which had made extensive recommendations on Cardiff’s handling of ASB. Mr Williams had been transferred, but to a nearby flat, in the course of this investigation.

Mr Williams had had an introductory tenancy when the initial complaints of noise nuisance where made – amounting to 8 months of near daily noise nuisance, supported by nuisance diaries and some witnessed by Council officers, before Mr Williams received ‘warnings’. There was also a police interview about threatening behaviour. All in the first year of Mr Williams introductory tenancy. Despite this, the Council confirmed Mr Williams secure tenancy. In 2006 there was an incident of threatening behaviour. The Council accepted Mr Williams account, but criminal charges were brought by the police and a conviction obtained. After the conviction, the Council served an NSP on Mr Williams, but took no further action.

Further complaints of noise and behaviour were referred by the Council to ‘Pollution control’ who declined to deal with out of hours complaints on the basis that ‘the case was too dangerous to be put to its “out of hours” service due to the perpetrator‟s violent history and the consequent risk to the safety of staff.’

From the beginning of 2007:

Miss Brown continued to submit nuisance diaries including one example from the 9 February to 23 March that had eleven separate incidents of amplified music and other disturbances; her other diaries were similar in content. In April 2007, Pollution Control served a noise abatement order on Mr Williams. Similar reports continued to be made through the year and by October witness statements were being obtained from Mr Davies and Miss Brown to support legal action by Pollution Control. An email between Housing staff and Community Safety at this time acknowledged that Miss Brown was in fear for her safety as she was the main complainant and had reported hearing Mr Williams make verbal threats to kill her and her boyfriend. The housing officer asked for advice from Community Safety on security measures for the flat and a community alarm and additional locks were provided.

In June 2008 Mr Davies and Miss Brown advised the Council that in the face of continuing complaints and lack of promised action by the Council that they had lost faith in its willingness to bring the nuisance to an end and they withdrew their witness statements and asked for a transfer instead. Pollution Control explained that they could not proceed with action under EPA without their involvement and tried to persuade them to continue but they did not do so. The Council took action to register the transfer request in November 2008 but Miss Brown had not been moved at the time of writing this report.

In October 2008 the Council transferred Mr Williams to another flat on the same estate which is in a nearby block and has windows facing the windows of the flat occupied by Miss Brown and Mr Davies. The Council said that the transfer was not connected with the complaints that had been made against him and had taken place within a timescale that was normal for that estate.

The ombudsman pointed out the range of options legally available to Cardiff, from ASBIs and the EPA through to Introductory and Demoted tenancies and eviction, and also to Cardiff’s policy, which included:

a description of the legal and non legal remedies available, examples of when each should be considered together with the grounds on which they could be sought and the burden of proof required. For example, it describes the Anti-Social Behaviour Injunction which would be used in an emergency to protect a victim or witness who had been threatened and for which the civil burden of proof, being “likely to have happened”, would be required. The grounds for seeking this remedy would be conduct that is capable of causing a nuisance or annoyance to any person and affects the housing management functions of a landlord.
The procedure includes a flow chart which directs staff to devise an action plan and to conduct a formal assessment of the complaint if it is not resolved.
It advocates weekly or monthly updates to the complainant at all stages of the complaint and speedy action at all stages; for example, where there has been violence or threats of violence or deliberate damage to property, the matter should be dealt with immediately but not more than 24 hours after the report. All emergency cases should be discussed with the Housing Team Manager within 24 hours.

This had clearly not happened at all.

The previous report had found that Cardiff left ASB to pollution control almost entirely.

The Council officers evidence was varied and disjointed. Notable was the District manager who was concerned that for housing officers:

a NOSP was regarded as a form of warning letter and that if there were no problems in the initial 28 day notice period, then it was not followed up and was sometimes even withdrawn.

Nobody had any idea why this case hadn’t been referred to the dedicated ASB unit and the newly appointed ASB specialist solicitor ws concerned about the lack of integration and about the tendency of housing officers to treat introductory and secure tenancies alike.

In a frankly damning conclusion, the Ombudsman found systematic failings:

i) Late referral of the case for consideration of possession proceedings and the lack of active engagement or consideration of management or legal remedies by the Housing Department, who relied on the Pollution Control section to take the lead in bringing the nuisance under control although many of the issues being complained of were breaches of tenancy rather than noise pollution issues.

ii) the

lack of adequate response to the problems during 2007 and up to October 2008, when Mr Williams was moved, this being after the implementation of the Council‟s action plan following the previous Ombudsman‟s report (para 23) which was completed in March 2007. The actions of its officers and interviews suggest that the lessons have not been fully learned from the last report and that further work to reinforce the action plan is still needed. I feel that in its response to the draft report the Council has not properly absorbed the chronology of complaints and has failed to take account of the evidence contained within its own files.

iii) the Council‟s failure to take advantage of the opportunity afforded by the fact that Mr Williams was on an introductory tenancy agreement when it received numerous complaints from Miss Brown from early in his tenancy and from another tenant complaining in very similar terms of eight months of nuisance from the time Mr Williams moved in.

iv) that

the Council says in its response to my draft report that it approaches introductory tenancies in the same way as secure ones, and I believe it needs to revisit the statutory provisions on this and be reminded of the purposes for which Parliament brought in introductory tenancies. Having examined the WAG guidance on which the Council relies in its response, I feel that it has quoted selectively from this document and that a more clear sense of what the document intends is obtained from reading beyond the lines quoted.

v) the failure to pursue Mr Williams for criminal damage, leaving it to Ms Brown to push the police for a criminal prosecution.

vi) The failure to pursue the NSP, once served.

vii) No consideration of obtaining an injunction to protect the safety of Ms Brown and Mr Davies, despite the Council acknowledging a threat to its own staff.

viii) A lack of effective multi agency working.

Therefore:

I find maladministration in that the Housing Department has failed to follow its procedures in respect of the following matters:-

Lack of regular updates to the complainants and failure to convey decisions
Absence of an action plan
Absence of speedy action at any stage in the handling of the case
Absence of consideration of legal alternatives by the Housing Department
Absence of legal action to protect witnesses
Lack of effective working with other departments
Late referral to legal department
Late installation of security measures

I find no evidence of considerations of proportionality of action or right to home life under Article 8 the Human Rights Act 1998 in this case and these considerations are not directly referenced or embedded in the anti social behaviour procedures of the Council. I find that Miss Brown‟s and Mr Davies‟s human rights were engaged in this case but were never addressed by the Council.

Neither is there any evidence of considerations of Miss Brown and Mr Davies‟s position under s.183 of the Homelessness Act 2002, specifically in relation to the appropriateness of their remaining in the flat given the actual violence and repeated threat that they experienced. This is a statutory duty. Additionally, the delay of five months in dealing with their transfer request was unacceptable.

Recommended:

Ms Brown be transferred to a suitable location within 3 months

Ms Brown be paid £7,500 for the 3 years of evidenced complaint

The Council to revise ASB policy to formalise early discussion with legal representatives and consideration of the alternative legal remedies that are available to tackle anti social behaviour, and to include in its procedures appropriate advice and considerations under the Human Rights Act 1998 and Homelessness Act 2002.

Further training

Council to evidence actions in 3 to 6 months

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in ASB, Housing law - All, Introductory and Demoted tenancies, Possession, secure-tenancy and tagged , , , , .

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