Metropolitan Housing Trust Limited (201905797)

REPORT

COMPLAINT 201905797

Metropolitan Housing Trust Limited

4 December 2020

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s handling of reports of Anti-Social Behaviour (ASB).

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
Reports of ASB have been made in this case from at least September 2018, with the resident continuing to make reports and expressing his dissatisfaction with the landlord’s handling of his reports thereafter and this continues to be the case at the time of writing. The resident’s reports of ASB and dissatisfaction with the landlord’s handling of it therefore extends before and after the landlord’s formal complaints procedure.
Paragraphs 39(e) and 39(a) of the Scheme, state respectively, that, “The Ombudsman will not investigate complaints which, in its opinion”,
1. (e) “were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising, and/or;
2. “are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure”.
A report of ASB should be differentiated from a complaint about the landlord’s handling of reports of ASB; consequently, not all reports of ASB are complaints. Although the resident has said that he brought complaints to the landlord on 3 January 2019, 10 February 2019, 3 March 2019, 21 April 2019 and 21 May 2019, these complaints are conflated with reports and moreover, it would not be reasonable to bring five formal complaints about the same issue, within as many months; the landlord has a reasonable opportunity to investigate and respond to a complaint, before another regarding the same issue is instigated and further, is not obliged to re-investigate issues it has already looked at. Indeed, the landlord has not responded on each of these contacts from the resident as formal complaints, as per its complaints procedure.
On 18 July 2019, the resident raised his latest formal complaint, which was investigated by the landlord, exhausting its complaints procedure on 10 July 2020. Taking into account the above, it is this complaint that this Service will investigate and issue a determination in respect of. In doing so, the Ombudsman will also take into account the six months preceding the complaint, in accordance with paragraph 39(e) of the Scheme.
Newer matters raised by the resident, including allegations of his neighbour attempting to gain access into his property by his window, will not be investigated by this Service, as they were not considered as part of the formal complaint. Should the resident wish to bring a complaint in respect of new matters, he may do so and if he remains dissatisfied with the landlord’s response, may approach this Service thereafter. This may not be necessary, however, given the findings and outcome below.

Background and summary of events

Background and policies

The resident has been an assured tenant of the landlord, at the property, from 19 January 2009.
The landlord’s ASB policy sets out the landlord’s approach to reports of ASB. It states that on receipt of a report of ASB, the landlord will make contact with the reporter and will be offered a home visit to complete an action plan, within 10 working days.
The same policy states that where early intervention has failed or is not relevant, the landlord will seek to take tenancy action, although it will first need evidence to be gathered, which may include residents affected/the reporter of the ASB making regular reports/updates and/or completing diary incident sheets; without evidence, action cannot be taken. Other steps the landlord may take to gather evidence include taking witness statements, interviewing the alleged perpetrator and liaising with other statutory authorities.
Steps the landlord may take to address ASB include offering mediation, issuing Acceptable Behaviour Contracts (ABCs) and warnings. More serious action may include applying for injunctions or instigating possession proceedings.
The landlord’s complaints policy from the time that the complaint was initially raised defines a complaint as follows “A complaint is usually an expression of dissatisfaction with a service or failure to carry out an agreed service, to meet agreed timescales or to meet the standards promised”.
It states that a complaint should be made within three months of the incident and should be responded to by the landlord within 10 working days at both stages one and two; where this is not possible, the complainant will be contacted and a revised timeframe agreed. If a complainant remains dissatisfied with the landlord’s response to their complaint, they may request the matter be referred to the complaints panel.
The landlord’s revised complaints procedure from mid-way through the complaint being investigated was as follows; at stage one and stage two, the landlord will respond to the complaint within 28 days and update the complainant every two weeks. Complaints will be automatically be escalated to stage two where the 28-day timeframe is breached at stage one.
Where a complainant is dissatisfied with the landlord’s response to the complaint at stage two, they may request their complaint to be referred to the complaints panel, or send their complaint to the Ombudsman at this stage.
The landlord’s compensation policy sets out circumstances in which compensation may be offered by the landlord and guidance amounts. Circumstances may include where there has been a service failure by the landlord, time and trouble in pursuing a complaint and for poor complains handling, with the recommended amounts ranging from £5 to £500, depending on severity of the failure and time impacted.

Summary of events

On 3 January 2019, the resident wrote to the landlord, threatening to take legal action if it did not address the ASB perpetrated by his neighbour that he had been reporting for a number of months. In response, the landlord spoke to the resident about his concerns on 29 January 2019 and explained that it needed to collect evidence of the reported ASB in order to take action.
Following this meeting, on 6 February 2019, the landlord wrote to the resident, advising that as he was not prepared to provide any evidence to support his complaint, specifically, he had refused to complete diary incident sheets, contact the noise department of the local authority or to download the ‘Noise App’, besides contacting the alleged perpetrator and issuing him with a warning, which it had done, it could not take any further action.
Correspondence continued between the landlord and resident and at the beginning of March 2019, with the resident threatening legal action on 3rd. The resident later informed the landlord, around 12 March 2019, however, that he would use the ‘Noise App’ to help gather evidence of the ASB he had been reporting. This followed discussion around the possibility of installing noise monitoring equipment in the property, although the resident had said he could not write down incidents to support the recordings because he had a disability. The landlord had explained that it would only listen to documented noises and so the ‘Noise App’ was determined to be an alternative solution.
During April 2019, further reports of ASB were made, including the resident reporting that the neighbour had smashed his car window and threatened him with a knife, that there had been repeated banging on the party wall by the neighbour (on 15, 22 and 23 April 2019) and that the neighbour had made a threat to kill the resident (on 24 April 2019). The resident had informed the police of the incidents, although no action was taken.
Throughout the month, the resident was documenting the incidents as they occurred (which he said he continued thereafter in verbal form, by telephoning the landlord, up until the beginning of August 2019).
In the middle of the month, on 16 April 2019, the resident had stated his dissatisfaction with the landlord’s handling of his reports of ASB and having acknowledged this on 17 April 2019, the landlord said it would discuss matters further with him. At the discussion at the property that followed shortly thereafter, the landlord witnessed the banging that the resident had been referring to, acknowledging that it would be “frustrating” to hear and to live with.
On 29 April 2019, the landlord wrote to all residents stating that whoever was banging, had to stop and on 1 May 2019, interviewed the alleged perpetrator of the ASB about the noise.
Reports of ASB continued from the resident, including reporting a threat to kill him, to the police, on 2 May 2019, further banging on 10 May 2019, an incident where the neighbour is alleged to have said that he made false accusations up about the resident and an incident regarding a stone allegedly being thrown at the property. In response to the reports, the police took no action.
Following a telephone call with him, on 17 May 2019, the landlord wrote to the resident, apologizing for the length of time it was taking to address the issues. It asked him to complete diary incident sheets and to submit recordings from the ‘Noise App’, stating that its noise recording equipment was now out of service and unavailable. The landlord also suggested shuttle mediation as a way forward.
During correspondence between the landlord and resident, the resident had expressed that he felt the member of staff handling the ASB case may be racist and siding with the neighbour. The landlord, in its response, explained that it had no evidence of the member of staff being racist in their handling of the matter.
On 20 May 2019, the landlord wrote to the neighbour regarding the continuing reports of ASB and stated that it wanted to carry out a noise comparison test at his property.
The resident continued to state his dissatisfaction with the landlord’s handling of the matter, contacting it around 21 May 2019, to which the landlord responded on 24 May 2019, stating that it had offered shuttle mediation and had advised him to use the ‘Noise App’ to record the noise and to contact the local authority, none of which he had done. The resident responded the following day stating that the local authority had referred him back to the landlord and added that it was difficult to continue to use the ‘Noise App’ to adequately capture the noise, which was sporadic banging.
The resident continued to assert that the landlord was not doing enough, on 17 June 2019, writing to the landlord via a solicitor and stating his tenancy rights and the landlord’s obligations to act.
The landlord contacted the resident on 21 June 2019, advising that there were no recordings on the ‘Noise App’ for it to listen to and assess. It stated that it would like to carry out a noise comparison test at the property. The resident agreed to this but continued to say that he did not understand the ‘Noise App’ and was of the view that the landlord was acting in a racist manner in the handling of the case.
During June 2019, the landlord began to collect witness statements from other residents and asking them to document incidents, also, as the reported noises/banging could be heard outside of the resident’s property.
The resident contested that the neighbour had again vandalized his vehicle around 1 July 2019, although the police could find no evidence of this and took no action. On 2 July 2019, the landlord gave a final warning to the neighbour regarding the banging and also advised that it would be attending the property to inspect the walls, due to the banging. The resident reported a verbal assault by the neighbour on 8 July 2019 and on 16 July 2019, following the neighbour not granting access to the landlord to carry out the inspection, in the context of the situation, it served him with a ‘notice before legal action’.
On 18 July 2019, the resident submitted a formal complaint to the landlord, about its handling of the ASB, stating that the issues had been going on for around 11 months and affecting his life 24/7. The resident felt unheard in his reports and complaints; he was frustrated that the landlord itself had witnessed the banging, that he had provided diary incident sheets for the whole of April 2019 and that he had been providing daily telephone updates to the landlord, as well as providing it with names of witnesses to the ASB, yet it had been either “negligent” or “racist” in its response.
Around 20 August 2019, the landlord wrote to the resident, acknowledging his complaint and the inconvenience and stress the reported ASB had been causing him for some time. It explained that it was still investigating the issues and working with the local police. It added that it would not tolerate the resident acting in a racist manner towards it, referring to a telephone conversation on 14 August 2019.
There continued to be contact from the resident to the landlord, expressing his bewilderment as to the situation and what the landlord wanted or needed in respect of evidence and a conversation call followed thereafter, where the landlord again witnessed the banging from the neighbour.
On 4 September 2019, the landlord provided a response to the complaint, in which it was not upheld, explaining that the police had taken no action in respect of the matters reported. In terms of the banding, however, it explained that it was in the process of compiling a chronology of events and considering taking enforcement action. It stated that it needed the resident to continue to report incidents on the ‘Noise App’ and to the noise team.
Correspondence between the landlord and resident continued, with the resident reporting incidents, which the landlord acknowledged and the resident reiterating his dissatisfaction with the landlord’s handling of the situation. The landlord spoke to the resident on 16 September 2019 and in a letter to him of 18 September 2019, advised that it needed him to continue to report concerns and advised him not to discuss matters with the neighbour.
The complaint was escalated to stage two of the landlord’s complaints process, following his continued dissatisfaction and on 7 October 2019, the landlord wrote to the resident to advising him that it would be serving a Notice of Seeking Possession (NOSP) on the neighbour and sending the evidence to its legal team for analysis. Following a conversation with the resident on around 16 October 2019, said it would update him shortly thereafter.
On 22 October 2019, having not heard, the resident chased the landlord. Two days later, on 24 October 2019, the landlord serviced a NOSP on the neighbour.
On 11 November 2019, the resident reported further incidents and chased the landlord on 25 November 2019 as to what was going on and what evidence it was collecting. On 23 December 2019, the landlord responded, advising that it was looking into his complaint and would come back to him in due course. Having not heard, on 6 January 2020, the resident chased his complaint and the landlord’s actions.
On 4 February 2020, the landlord responded under stage two of its complaints process. It did not uphold the complaint, finding that its staff had acted appropriately. It explained that investigating ASB and taking action in response takes time. It said that it had now served a NOSP on the neighbour and was in the process of taking witness statements from other neighbours, after which, the matter would be passed to its legal department for advice as to next steps.
The landlord added that it was reviewing its complaints procedure, with the view to allowing longer timeframes within which it will respond, to prevent complaints such as this from needing to be escalated in order to get a solution.
On same day, the resident asked to escalate his complaint.
Two days later, on 6 February 2020, it was determined that court proceedings would commence and on 3 March 2020, the landlord lodged the papers at the court to commence eviction proceedings.
The following day, the landlord visited the resident to discuss the situation and also discussed the ASB with a neighbour.
Due to the pandemic, on 26 March 2020, the government banned possession proceedings from being progressed and the matter was put on hold.
On 22 June 2020, the resident chased the landlord as to the situation.
On 10 July 2020, the landlord responded under stage three of its complaints procedure. In its response, the landlord acknowledged that it should have taken action sooner, finding that there was sufficient evidence to have served the neighbour with a NOSP in June 2019 and that, having monitored the situation thereafter, it could have lodged the court papers in January 2020, rather than March and 2020. In recognition of this and the impact the situation had had on the resident’s life, the landlord offered him compensation of £575.
In terms of additional reports of ASB, concerning damage to property and threats the resident said the neighbour had made to him, the landlord found it had acted appropriately, in that it had liaised with the police, who had not taken any action.
The landlord explained that possession proceedings were due to commence in courts from 24 August 2020, although there was likely to be a backlog of cases and it could not know at this point, when the hearing would go ahead. The landlord said it was seeking advice as to what other steps it might be able to take in the meantime and asked the resident to continue to report incidents of ASB and to record noise on the ‘Noise App’.

Assessment and findings

In cases concerning ASB or noise nuisance, it is not the Ombudsman’s role to ascertain whether the ASB occurred, but rather, to assess how the landlord responded to the reports of ASB and whether its response was in accordance with its policies and procedures and appropriate and reasonable in all of the circumstances.
The landlord has acknowledged that it took too long to act, in that it had sufficient evidence to issue a NOSP a number of months before it did and it delayed again in pursuing court action thereafter. It was appropriate that the landlord accepted that there had been failings in this regard because it recognized that something had gone wrong in its handling of the ASB and the impact that it had on the life of the resident. The landlord’s offer of compensation reflected the gravity of the delay, with the compensation amount being at the maximum amount the landlord may offer, in accordance with its compensation policy and beyond the Ombudsman’s guidance of up to £250 for a finding of service failure, with larger amounts than this tending to reflect more serious maladministration.
The landlord did not find evidence of racism in the handling of the ASB case and neither does this Service. No evidence of the landlord having been racist at any point has been provided. The landlord during the course of the complaint warned the resident himself about racist comments. The landlord is not expected to tolerate racism, accusation or abuse, irrespective of its failings by way of delay and insufficient action, as was the situation here.
The landlord did not demonstrate, however, that it had identified why things had gone wrong or any learning taken from its findings. The Ombudsman’s published ‘Dispute Resolution Principles’ include the importance of ‘learning from outcomes’ and there is no evidence that this was done and moreover, learning was not communicated to the resident and unexplained delay continued thereafter. Trust in the landlord was undoubtedly undermined by the delay and the lack of learning and communication, over time.
Although the landlord recognized delay in taking legal action, it has not acknowledged earlier delay in addressing the ASB through other means. It is true that investigating and resolving ASB can take time, particularly where there are vulnerabilities involved, however, in this case, the ASB was long-standing and escalating in the nature and frequency of reports.
The landlord did not act appropriately in response to the situation in a number of ways; the landlord did not put together an action plan with the resident, setting out what it could and would do and by when and in not doing so, it failed to communicate effectively or to manage his expectations, leaving him uninformed as to what, if any, actions the landlord was taking and feeling as though he was not being taken seriously. The landlord did not remedy this at any point in time; communication and information were lacking throughout and the landlord-resident relationship began to breakdown as a result.
Whilst the actions the landlord did take in response to the reports of ASB were appropriate – asking the resident to document incidents and record noise on the ‘Noise App’, offering shuttle mediation, offering to carry out a noise comparison test, interviewing the neighbour, issuing a warning and gathering witness statements – these were all done too late and done without sufficient communication with the resident as to what steps it was taking and when.
In terms of gathering evidence to support the fact that ASB was taking place, the resident felt that he was doing the landlord’s job for it both early on and later, initially refusing to do this. Whilst frustrating to have to try to capture noise on an App and to write down incidents of noise nuisance, it is the case that the landlord cannot act without evidence and there is a reasonable expectation on a resident to engage with evidence collation. The daily verbal reports the resident said he made does appear to be excessively onerous, however, and the documenting of incidents went on for a longer than reasonable period of time, where other actions could and should have been taken.
Regarding the ASB that did not relate to noise, but to alleged threats and damage to property, the landlord appropriately liaised with the police about these, which was appropriate, as they were reported as crimes. The police, however, operate on the basis of a different burden of proof to the landlord, requiring evidence at a criminal, rather than civil, standard. That is not to say that the landlord can make a finding of a threat to kill, where the police have not, for instance, but the landlord can take softer, more low-key approaches to reports such as this, such as reminding alleged perpetrators of their responsibilities under the tenancy and making them aware of allegations made, so where relevant, the individual has an opportunity to change their behaviour. The landlord did not do enough and did not act early enough, in respect of these non-noise related allegations.
Turning to complaint handling, the complaint took one year to exhaust the landlord’s complaints process, set against a much shorter timescale of three months, with the complaints procedure taken at its most generous. The length of time it took the landlord to respond to the complaint was inappropriate because it was not in accordance with its policy or by any reasonable standard. The delay in responding to the complaint is exacerbated by the absence of updates, which lead to the resident in a prolonged place of uncertainty and to him chasing the matter.
It is unclear what the landlord meant in its explanation of extending the timeframe to respond, given the already lengthy delay in responding to the complaint. In cases of complaints about ASB, it is not always possible to resolve the ASB by the conclusion of the complaints procedure, however, the landlord is able to investigate its actions to date and to explain and apologise for anything that has gone wrong and to put things right going forward. It did not do this.
While the landlord is not responsible for delay to court proceedings, which occurred as a result of the pandemic, the landlord is required to keep the resident up-to-date on a reasonably frequent basis and to let him know what other actions it might take in the interim.
The final complaints response to the resident, whilst appropriately recognizing delay to which it attributes itself the blame and an amount of compensation, does not apologise, does not explain why the delay occurred or actions it had taken to help prevent a recurrence or offer the resident any timeframe for its legal advice or any other actions it will take. Asking the resident to continue to use the ‘Noise App’ and document incidents was dismissive of the gravity and impact of the situation, as well as the timeframe that it had gone on for.
The response gave no boundary or end in sight, even if that end was to provide bi-weekly updates, for instance, a timeframe within which the resident could expect to hear about the landlord’s next steps following legal advice or offer to discuss matters. As such, the landlord was effectively asking him to continue to remain in a place of unknowing and continuing to document incidents, for which there was already sufficient evidence to take the matter to court and that the resident had already been doing for many months.

Determination (decision)

In accordance with paragraph 54 of the Scheme there was service failure by the landlord in respect of the complaint about its response to reports of ASB.
In accordance with paragraph 54 of the Scheme there was service failure by the landlord in respect of its complaints handling.

Reasons

There was service failure in respect of the landlord’s handling of reports of ASB insofar as the landlord did not do enough or act quickly enough, in addressing the ASB reported.
There was service failure in respect of the landlord’s complaints handling, insofar as the landlord took too long to respond to the complaint.

Orders

If the resident has not already accepted and received the £575 compensation, the landlord should pay this.
The landlord is to pay the resident an additional £100 for the service failure found in its complaints handling.
The landlord is to offer to meet with the resident and at that meeting (or in writing), to provide a comprehensive update as to the situation, next steps and timeframes, ensuring that updates are provided to the resident thereafter, at reasonable intervals. The landlord to be clear about what actions it can and cannot take, with the view to adequately managing the resident’s expectations.
The landlord is to carry out a ‘lessons learned’ exercise and to provide evidence to this Service as to its findings and any associated changes or improvements to its procedures and any training provided.
The landlord is to confirm compliance with the above orders by 7 January 2021.