Impact Housing Association Limited (202003113)

REPORT

COMPLAINT 202003113

Impact Housing Association Limited

11 January 2021

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 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 refers to the Landlord’s handling of the Resident’s reports of antisocial behaviour (ASB), drug use and drug distribution by his neighbour.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman 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.
After carefully considering all the evidence, in accordance with the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction.

Health Issues

Paragraph 39(i) of the Scheme states:

The Ombudsman will not consider complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure;

The Ombudsman does not doubt the Resident’s comments regarding his mental and physical health, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be better dealt with as a personal injury claim through the courts. The Resident should consider taking independent legal advice if he wishes to pursue this option. However, consideration has been given to the general distress and inconvenience which the situation has caused the Resident.

Further Issues

Paragraph 39(a) of the Scheme states:

The Ombudsman will not consider complaints which are made prior to having exhausted a member’s complaints procedure

The Resident raised further concerns regarding dog fouling, his neighbours sitting outside the communal entrance to the flat block, the use of the communal garden and fire risks in communal areas which were responded to at stage one of the Landlord’s internal complaint’s procedure. These issues did not form part of the Resident’s reasons when he requested his complaint to be escalated to stage two of the Landlord’s process. As such, this report will not consider the Resident’s complaints regarding these matters as they have not exhausted the Landlord’s internal complaints procedure. It will, however, consider the issues raised to stage two of the Landlord’s procedure, including the Resident’s concerns in relation to the Landlord’s handling of his reports of Antisocial Behaviour (ASB) and drug use and distribution.

Background

The Resident holds an assured tenancy with the Landlord.
The property is a flat within a block of flats. The neighbour is also a tenant of the landlord within the same site.

Summary of events

On 16 May 2020 the Resident emailed the Landlord to report an incident which had occurred outside his flat. He stated that he had previously been on friendly terms with his neighbour although in the recent few weeks, his neighbour had been “off” with him and this had made the Resident feel uncomfortable. The Resident stated that he had put a note through the neighbour’s door, apologising if he had done something wrong. The Resident went on to explain that the neighbour had knocked on his door and threatened to kill him. He stated that the neighbour was swearing and had brought up the Resident’s historic criminal conviction. The Resident stated that he was now in fear for his life and he felt scared to leave his flat. He wanted the neighbour to be evicted as he felt this incident would constitute a breach of the neighbour’s tenancy.
The Landlord sent the Resident a decision letter in relation to his reports of ASB on 22 May 2020 which stated the following:
1. It confirmed that the Resident had reported this incident to the Police as well as the Landlord, who had now investigated the report of ASB. The Landlord stated that it had also sought legal advice on the matter.
2. It stated that there were insufficient grounds and insufficient evidence to justify taking on possession proceedings against the neighbour, as it had been a single incident and there had been no independent evidence.
3. It stated that possession proceedings would not provide a quick solution because, due to the Covid-19 measures, it could take over six months to gain a possession order. Furthermore, the neighbour could have public law or human rights defences available, which meant that the Landlord may not be able to evict the neighbour.
4. The Landlord confirmed that no other residents heard any of the details of the argument; one heard shouting but could not make out what was said. The neighbour had admitted that there was an argument but denied making any threats to kill the Resident. The neighbour had stated that because of the Resident’s offending history, they wanted nothing more to do with him. The Landlord confirmed that the neighbour had been given a verbal warning by the Police and it was suggested that they keep away from the Resident.
5. During the investigation, other issues had come to the Landlord’s attention. There had reportedly been thefts from another tenant in the block, the Resident had allegedly been walking into other flats without knocking or seeking permission to enter; the Resident also had allegedly stared into his neighbour’s window. Allegations had been made that the neighbour in question smoked cannabis and had supplied two other tenants with cannabis.
6. The Landlord stated that a crime had been logged in relation to the thefts, but no further action would be taken due to lack of evidence; the tenant had been advised to keep his door locked. The Landlord advised that in the future, the Resident should not enter other flats without knocking and receiving permission to enter. It requested that the Resident did not use the passageway adjacent to his neighbour’s flat.
7. In regard to his neighbour taking and supplying drugs, the Landlord had reported the allegations to the Police. It confirmed that the neighbour had received a written warning as the consumption or distribution of drugs was a serious breach of their tenancy agreement. It stated that if the Police took further action against the neighbour then it would take tenancy enforcement action which could lead to the loss of their property. The Landlord stated that following the Police warning given to the neighbour in relation to the threat to the Resident’s life, it would record the allegation and had issued a written warning.
8. It requested the Resident provide evidence that he had sought permission from the Landlord to keep a dog, as this could be a breach of his tenancy agreement.
The Resident responded the same day and stated that he had sought permission from the Landlord in person and it was agreed he could keep a mental health support dog. He said that he did not find the Landlord’s decision acceptable. Despite other residents saying they had not heard the alleged threat to kill him, he would not lie about such a matter. He found it unacceptable that the Landlord accepted this serious breach of tenancy and allowed such behaviour. He requested that the Landlord consider investigating the matter further as the neighbour had walked in front of his property five times the previous day. He sent a further email the same day requesting a face-to-face meeting as the threat to his life had left him feeling suicidal.
The Landlord emailed the Resident the same day to say that it had attempted to refer him to local Mental Health Services, but he would need to give express permission for the referral. It noted that the Resident had been in touch with other members of its staff and did not appear to be in immediate crisis and advised the Resident contact his existing support networks or to phone the Landlord’s Crisis Team if he needed any help.
The Landlord issued a further decision letter on 22 May 2020 in relation to the Resident’s report of ASB and apologised that the Resident was not happy with the previous outcome. It apologised that its previous letter had been lengthy with a lot of jargon. The Landlord stated that it was satisfied that it had followed the correct process in line with its ASB Policies and Procedures. It stated that the outcome of issuing a warning letter to the neighbour advising them not to approach the Resident and to stay away from his property was a proportionate response. It confirmed that it had contacted the Police, who had stated that they would not be taking further action against the neighbour. The Landlord stated that it had sought advice from its solicitors, who confirmed that it would be appropriate to issue a warning and seeking an eviction warrant would be inappropriate; it would be unlikely to be granted by the courts on the basis that this was a one-off incident. It confirmed that the neighbour had now been issued a warning regarding their conduct. The Landlord also stated that it was concerned about the Resident’s mental wellbeing and would be making a referral to adult social care.
On 27 May 2020 it was confirmed that the Police had no plans to progress the original ASB complaint.
A written warning was originally sent to the neighbour on 18 May 2020 after contact from the Police. The neighbour appealed the warning, and it was amended and resent on 29 May 2020. The neighbour requested further amendments, which were agreed to by the Landlord; a second amended warning letter was sent to the neighbour on 30 June 2020 in relation to the alleged threat to kill the Resident.
The Landlord wrote to the Resident and confirmed the actions it had taken on 28 May 2020. It stated that it had promptly investigated a number of complaints and allegations both from the Resident and from other tenants. It had written to the Resident with a detailed answer to his ASB concerns. It had interviewed other residents at the scheme. It had issued warnings and advice to the neighbour and had talked to the Resident about alternative accommodation and security. It had reported allegations of crimes to the Police and worked closely with the police and had contacted local Mental Health Services.
On 16 July 2020, the Resident viewed two properties with a view to transfer but was unhappy with the condition of the main property and the Landlord felt that the second property should be offered to a person with a higher level of physical need. The Landlord agreed to install a new carpet at the main property as well as new windows, doors and a bathroom with an over-bath shower. On 20 July 2020 the Landlord sent a formal offer for the new tenancy and the Resident responded stating that he could not accept the offer of new accommodation unless it was fitted with a new kitchen. He stated that this request was reasonable as he felt forced out by the actions of other tenants.
On 5 August 2020 the Resident raised concerns that his neighbours were allowing their dogs to defecate in the communal gardens which he found unacceptable. He stated that he felt the Landlord did little to stop its tenants breaking the terms of their tenancy agreements. He went on to list the issues he was experiencing at his property, including death threats, intimidation, harassment. He stated that his neighbour had called the police when he had asked for his spare car key and other tenants were deliberately sitting outside his front door preventing him from leaving his property. He also reported illegal drug use and the distribution of Class A and B drugs; destruction of the communal garden; dire hazards in communal hallways, forcing him to move property to escape the harassment and intimidation; the slashing of his car tyres, which he stated happened following the threat from his neighbour; and fires near the rear of the property until 2am. The Resident stated that he felt these reasons were enough for the Landlord to evict his neighbour but did not feel the Landlord was taking appropriate action. Instead the Landlord was moving the victim affected by these issues rather than manage the tenants responsible. He stated that he felt the Tenancy Agreements were worthless as the agreements did not give him as a tenant any assurance or level of protection from others. He continued to detail the impact these issues had caused to his physical and mental wellbeing and felt the Landlord had failed in its duty of care towards him.
The Landlord responded on 6 August 2020 and stated that it would now be considering the Resident’s issues along with his continued dissatisfaction with how it had managed these issues as a formal complaint. It confirmed that it would be dealing with his complaint under stage one of its internal complaints process and he would receive a response by 11 August 2020.
On 11 August 2020 the Landlord issued its stage one complaint response to the Resident and stated the following:
1. In relation to the Resident’s reports of dog fouling, the Landlord stated that it had visited the site four times in the previous months and had not noticed any dog fouling, although it had not been looking for this at the time. It had requested its gardeners to report any dog fouling. If the Landlord gained evidence of any dog fouling, it would contact all residents to remind them to take responsibility for picking up their dogs’ mess.
2. In relation to the Resident’s reports of a death threat, it stated that it had taken the matter seriously by interviewing both parties and communicated with the Police about appropriate action which should be taken. It noted that the Police had spoken to each party and handled the matter as advised. It had issued a formal written warning instructing the neighbour not to behave in a threatening manner towards the Resident again and it would pursue further action should any such incident occur in accordance with its Antisocial Behaviour Policy.
3. In relation to the Resident’s reports of his neighbours sitting outside his communal entrance, the Landlord acknowledged that the Resident may find this intimidating in light of the most recent conflict, although it had not received any reports of his neighbours acting in an inappropriate manner whilst utilising this space. It acknowledged that the Resident felt wary and unsafe around his neighbours, and it offered the service of its mediation partners who would be able to support the Resident and his neighbours following the conflict that had arisen.
4. In relation to the Resident’s reports of drug use and distribution, the Landlord had informed the Police of his suspicions and requested that the Resident forward any further concerns to the Police directly. This was now a criminal case and would need criminal investigation to prosecute. It stated that no further evidence had been provided to support the Resident’s reports of drug use or distribution, but should the Police become involved further than the Landlord would take appropriate action in line with its policies.
5. In relation to the Resident’s concerns regarding the communal garden, the Landlord stated that its garden services were halted due to the lockdown response to the Covid-19 pandemic. During this time some tenants took it upon themselves to maintain the garden. The Landlord encouraged tenants to develop plots and get involved in gardening should this interest them. It stated that prior to the recent conflict, the Resident had enjoyed this space. It would be taking steps to replace the garden furniture placed by one of the tenants to make the area more enjoyable and ensure the garden was made more presentable. It confirmed the gardeners had now reinstated their activity and would work to keep the garden areas presentable. It also advised that it had not been made aware of any further fires on communal ground, but this would be monitored moving forward.
6. In relation to the Resident’s concerns regarding fire risk, the Landlord had investigated the matter of a pet cage in the communal area and it was taking steps to have this removed. It confirmed that it carried out monthly inspections of the communal areas to acknowledge any fire hazards and would address any concerns which came to its attention.
7. Regarding the Resident’s claim that he felt forced to move property, the Landlord stated that it had offered an alternative property should the Resident wish to take up the offer. It stated that the offer accompanied other actions it had taken to address the Resident’s concerns and made the offer without force or prejudice as a resolution for the Resident to consider. A new kitchen had been fitted in the alternative accommodation at the Resident’s request, but at no point had the Landlord forced the Resident to move from his current home. It said that if the Resident preferred to remain at his current property then it would honour this request. If this was the case, the Landlord advised the Resident that it could offer its mediation service, which could help resolve any conflict between the Resident and his neighbours.
8. The Resident had expressed concerns about his tyres being slashed, the Landlord stated that this had been raised informally and there had been a number of tyres slashed throughout the local area at the same time. The Resident had not said that he believed this to have been done by anyone in particular at the time. It advised the Resident to keep it informed of any further cases of criminal damage, which should also be reported to the Police.
9. The Landlord expressed concern in relation to the Resident’s wellbeing. It stated that it had made a referral to the local authority’s Adult Social Care to ensure that services that were able to assist the Resident with this matter were offering him support.
10. The Landlord stated that it would not be able to uphold the complaint. It had investigated the matters which the Resident had raised and stated that it had acted appropriately, proportionately and reasonably to all the matters the Resident had raised. It stated that its actions had been in line with its ASB Policies and procedures. The Landlord confirmed that the Resident may escalate his complaint to stage two of its procedure should he remain dissatisfied.
The Resident sent a series of emails on 11 August 2020 in which he expressed dissatisfaction with the Landlord’s stage one response. He requested that the Landlord contact his neighbour as a parcel had been mistakenly delivered to their address and he did not feel comfortable knocking on the neighbour’s door. A further email detailed the terms of a tenancy agreement he had found online, which stated that the Landlord could issue a Notice Requiring Possession (NRP), where there are serious and/or persistent breaches of the Tenancy Agreement, including alleged antisocial behaviour. The Resident stated that the Landlord had failed in its duty of care to protect vulnerable tenants by allowing illegal drug use and supply, intimidation, harassment and threats of death to go on inside its properties despite stating that a Notice Requiring Possession should be issued for breaching the terms of the Tenancy Agreement. He stated that the Landlord was not taking the death threat as a serious breach of tenancy. He then stated that the possession and dealing of drugs was a criminal offence which should be considered serious. He believed that these issues together constituted serious and repeat breaches of the Tenancy Agreement. He expressed dissatisfaction that the Landlord allowed this behaviour and had not acted in line with its own agreements.
The Landlord issued its stage two response to the Resident on 25 August 2020. It stated the following:
1. It was satisfied that it had investigated his complaint thoroughly, in line with its Antisocial Behaviour Policy and Procedures. It explained that whilst the Resident was correct in saying that the threatening behaviour and alleged supply of illegal drugs was a breach of their tenancy conditions, a breach of tenancy conditions would not automatically result in the eviction or the end of a tenancy. Eviction would only be used as a last resort. It stated that a decision to evict a tenant would only be taken following significant evidence of a persistent and ongoing nuisance or a prosecution for a criminal offence.
2. The Landlord had made the decision that the most appropriate action at this stage would be to issue a warning letter. This was on the basis that there had only been one incident, the Police had not pressed charges against the neighbour, the Resident had not come to any physical harm, and the neighbour had denied that he had made a threat. If the Landlord had made an application for a court order to evict the neighbour, it would have been turned down as it would not be appropriate to take away a person’s home as a result of a single incident.
3. It stated that the use and alleged drug dealing had not been proven. It confirmed that it had investigated the allegations with the Police and found no evidence of drug use or the supply of Class A and B drugs from his neighbours. Without such evidence and a successful criminal prosecution, the Landlord would not be successful with an application to evict the Resident’s neighbour.
4. The Landlord explained that it had taken legal advice before providing its decision and this advice had confirmed that its actions were appropriate and proportionate.
5. It accepted that the relationship between the Resident and his neighbour had broken down and that he no longer felt safe or happy at his current address; the Landlord offered to move the Resident to a different property which would be ready for occupation in October 2020, after it had installed a new kitchen and bathroom. It stated that it had given the Resident an opportunity to move in sooner, but the Resident advised that he wished to wait for the work to be completed.
6. The Landlord did not uphold the Resident’s complaint as it had acted in accordance with its policies and procedures for the management of the Antisocial Behaviour, it would have been unreasonable to evict the neighbour, it could not find any evidence of drug use or distribution, and it had offered the Resident a move to a different home.

Assessment and findings

It is clear that the Resident has experienced significant stress and inconvenience as a result of his experience with his neighbour. However, it is the Ombudsman’s role to consider complaints about how a landlord has responded to reports of a problem and decide what is fair in all of the circumstances. The Ombudsman does not look at the original problem; for example, we will not decide whether someone was responsible for ASB, but rather we will take a view on whether the Landlord dealt with the issue reasonably and fairly, and in line with any relevant policies and procedures.
In line with its Antisocial Behaviour Policy the Landlord has an obligation to investigate reports of ASB. The Resident has accused his neighbour of threatening to kill him. This would fall under the heading of ASB, as set out in the Landlord’s ASB policy. He had also reported that his neighbour both used and distributed Class A and B drugs. Therefore, the Landlord would have been expected to investigate and take reasonable steps to resolve the ASB which had been reported and involve the Police as drug use and distribution would be considered a criminal matter, which would be best suited for the Police to investigate and respond to.
For a landlord to take formal action in respect of ASB, such as written warnings, injunctions, evictions etc. the landlord would require extensive evidence of the alleged behaviour to support formal action. Landlords should usually attempt to resolve ASB informally in the first instance such as by contacting the parties involved to discuss the matter. A landlord should generally only consider taking formal action if informal attempts have been unsuccessful in resolving the issues. It should also undertake to gather evidence and it should also work with other agencies where appropriate, such as the Police, to try to resolve the situation. The Landlord’s ASB procedure states that possession proceedings would be considered a last resort.
In this case, the Landlord took steps to resolve the situation informally by speaking to the Resident and his neighbour, liaising with the Police and contacting other residents to ask whether they had witnessed the alleged threat or the neighbour’s use of drugs in order to collate evidence. The Landlord issued a formal warning to the neighbour in relation to his alleged threatening behaviour which was appropriate since the Police had also spoken to the neighbour regarding this.
The Landlord has also offered mediation to resolve the continued conflict between the Resident and his neighbour. Mediation is not compulsory, and the Resident would be entitled to refuse to participate. However, it was reasonable for the Landlord to offer this as an option as it can help to resolve ASB in some cases. In this case the Landlord has also offered the Resident a transfer to another property. It was reasonable for the Landlord to offer a transfer as the Resident expressed that he was unhappy with his current community following the conflict. The Landlord was not obliged to offer this but went above its obligations and also carried out work to the new property at the Resident’s request. The Resident is within his right to refuse this transfer and it is understandable that he would not want to leave his current home, but if he has not already taken up the Landlord’s offer, the Landlord should consider honouring this offer in the future should alternative properties be available. Although, the Landlord would also need to consider other residents’ requirements for rehousing at the time and would not be expected to leave a specific property unoccupied for an extended period in case the Resident decided to agree to a transfer.
The Resident has clearly expressed his opinion on why he believes the neighbour should be evicted. The fact that the incident was reported to the police does not automatically mean there would have been sufficient evidence to support the Landlord in taking legal action against the neighbour. Furthermore, the police also decided not to take further action against the neighbour. The Landlord has discretion concerning how it manages tenancy breaches and such issues are generally considered on a case–by–case basis, depending on the individual circumstances. The Landlord has sought legal advice and provided a satisfactory explanation as to why it would not take action to evict the neighbour at this stage; the threat had been a one-off incident and had been denied by the neighbour, and there was no evidence to support the Resident’s allegations of drug use or distribution and the Police were not taking further action. The Landlord has taken reasonable steps to address this issue and its decision not to commence legal proceedings against the neighbour was appropriate given the lack of evidence. If further incidents are reported, the Landlord should consider other actions as appropriate; for example, legal action following any necessary legal advice.
In short, there has been no maladministration by the Landlord in respect of its handling of the Resident’s reports of ASB and drug use. The Landlord has made reasonable efforts to gather evidence of the Resident’s concerns and directed both parties to stay away from each other; it sought legal advice on the matter and confirmed it would not take further action at this stage. Overall, the Landlord took proportionate action regarding the Resident’s ASB reports and it is not required to take any further action in this regard.

Determination (decision)

In accordance with paragraph 54 of the Scheme there was no maladministration by the landlord in respect of its response to the resident’s reports of ASB by his neighbour.

Reasons

The Landlord responded to the resident’s ASB reports in line with its policies and procedures. It worked alongside the Police and sought legal advice on the matter following the Resident’s request for his neighbour to be evicted. The landlord was not able to take further action without sufficient evidence to support the allegations of ASB and drug use and distribution, and the Landlord’s reports show it visited the site on multiple occasions and found no evidence of such matters. There were no significant delays in the landlord’s responses to the ASB reports or the subsequent complaint, and the Landlord has offered the Resident a transfer of properties should he feel the conflict cannot be resolved informally.

Recommendations

It is recommended that the Landlord continue to monitor the site in relation to the allegations of drug use and distribution alongside the Police, as this would be a criminal matter.
If the Resident has not already decided to go ahead with a property transfer, the Landlord should consider upholding its offer to move the Resident in the future should alternative properties be available and subject to the needs of other residents awaiting accommodation.