Peabody Trust (202000513)

REPORT

COMPLAINT 202000513

Peabody Trust

29 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 is about the landlord’s response to the resident’s reports of anti-social behaviour.

Background and summary of events

The resident lives in a one bedroom flat and has had an assured shorthold tenancy with the landlord since 1 June 2017. The resident has a medical vulnerability and the landlord is aware of this. The neighbour whom she alleges ASB from previously lived in the property above her.
The resident states that she has been experiencing ASB from her neighbour since she moved into the property in 2017, however the evidence provided to the Ombudsman first refers to reports of ASB being raised in 2019. The landlord’s first records of ASB reports being raised by the resident against her neighbour are dated 9 July 2019. On that day the resident contacted the landlord to note that police had attended the building looking for the neighbour, and the resident had allowed them into the building. She reported that the neighbour was angry that the resident had opened the communal door to police and that he had racially abused her. The landlord noted that this report was triaged in its systems and that the resident was provided with advice on the same day, but because the incident was not witnessed by anyone there was little it could do.
On 11 July 2019 the resident reported to the landlord that her neighbour had thrown a bucket of dirty water out of the window at her. On 22 July 2019 the resident reported to the landlord that the police had attended the property looking for the neighbour. In August 2019 the case was “picked up” at which time the resident reported that the situation had “quietened down”. The resident reported that she believed the neighbour’s washing machine was leaking and was advised to contact the landlord’s repairs team. The landlord contacted the resident’s neighbour about the alleged ASB who “strenuously” denied any wrongdoing.
On 4 October 2019 (wrongly recorded as 2020) the resident contacted the landlord to report that two days previously on 2 October 2019 she had experienced racial abuse from the neighbour. She also reported that a similar incident had occurred a month earlier. The resident noted she had reported the issue to police and provided the landlord with a CAD number. The landlord’s neighbourhood manager contacted the resident, who advised that the police had not at that stage taken any further action. The resident noted that she could smell cannabis coming from the neighbour’s property, and that a staff member of the landlord who had previously attended the property had also noted this smell. The landlord explained to the resident that if the police were not taking action following the report, there was little it could do by way of enforcement action, though it noted it would contact the neighbour regarding the smoking of cannabis at the property.
On 19 March 2020 contacted the landlord to report that the previous day, 18 March 2020, she was verbally abused by her neighbour. The landlord’s stage one complaint response notes that it had been in contact with the police regarding this incident, with the latter advising that it did not have any evidence to support the allegations the resident had made. The landlord told the resident that, as a result, its ability to pursue legal action against the neighbour was very limited. When the landlord then spoke to the neighbour, he denied the allegations and made counter allegations against the resident and her partner.
The resident has stated to the Ombudsman that on 25 April 2020 she had moved out of the property to stay with her partner on the advice of police.
On 29 April 2020 the resident wrote to the landlord to raise a complaint regarding its response to her reports of anti-social behaviour.
On 30 April 2020 the resident’s partner wrote to the landlord to note that the resident was agreeable to a particular gardening schedule so as to avoid conflict between the resident and neighbour, which the landlord noted it would pass on to the neighbour.
On 4 May 2020 the landlord wrote to the resident setting out the following:
1. Its records showed that an ASB report was first lodged against the neighbour on 9 July 2019. The report was triaged by the landlord’s customer hub and the resident received advice that because the incident was not witnessed by anyone there was little the landlord could do.
2. The resident had made two further reports as noted on 11 and 22 July 2019. At the time of these reports the landlord’s ‘Neighbourhood Team’ were undergoing a period of transition with a number of key staff members having left the organisation including the resident’s neighbourhood manager. The case was therefore not addressed until August, at which point the resident advised that the neighbour had “quietened down”. She noted that the neighbour had been a problem since she moved in in 2017, and that she believed his washing machine was leaking, as she lived in the property below his flat. The landlord contacted the neighbour who denied any wrongdoing.
3. It referenced the report made on 4 October 2019 by the resident and the notification that she had contacted the police, who noted they had not taken further action after being contacted by the landlord. The landlord explained that if the police were not taking action following the report of racial abuse that there was little it could do however it stated she would contact the neighbour regarding the smoking of cannabis at the property. It encouraged her to contact police if she noticed this again, noting that ultimately it was the police’s responsibility to investigate such reports. It noted that this could be done anonymously, and that if any action was taken by police that amounted to a breach of tenancy by the neighbour, then it could also take action using their evidence.
4. It also referenced the report made on 19 March 2020 of verbal abuse the previous day, and the subsequent incident between the neighbour and the resident’s partner. It had been in contact with the police regarding any action the latter may have been taking against the neighbour. The police had advised that they did not have any evidence to support the allegations she had made to them, and as a result the landlord’s ability to pursue legal action against the neighbour was very limited.
5. The landlord had spoken to the neighbour who denied the allegations and made counter-allegations against the resident and her partner. As it had limited independent proof from either party, it had suggested mediation as a resolution to the dispute. Both parties had agreed to this and a referral had been made to the mediation service provider who would contact her directly. It suggested a rota for the two parties to divide up use of the garden and ensure it was always vacated at 8pm.
6. Noting the resident had stated that she no longer felt safe at home due to the incidents with the neighbour and the deterioration of her mental health, it had discussed moving options with her including mutual exchange. It understood that she did not wish to move however and believed the neighbour should be the one to have to move. It noted that as it had previously explained, it was unable to force the neighbour to move without a legal process involving substantial evidence in support. It noted that she was in receipt of mental health support, she had been referred to the tenant family support team and that a particular staff member had been in contact with her.
7. It understood a leak had been found on the neighbour’s heating system and had been resolved. It apologised for the length of time it took to resolve the matter. An order for remedial works had been raised following the stopping of the leak, but that these had been put on hold due to Covid-19 restrictions.
8. It concluded that it had reviewed all of the reports made by the resident and other communications, noting it had taken all reports seriously and acted in accordance with its procedure to investigate. As a result of the neighbour’s denial of each report, it was hard for it to take further action without independent corroborating evidence. It had suggested methods to resolve the conflict such as mediation and acted on the suggestion of a garden schedule. The resident had requested support from the landlord at a level it was unable to provide however it was willing to engage with its current support services to ensure she was fully supported.
On 11 May 2020 the resident wrote to the Ombudsman noting various points, including that that since working from home during the pandemic, the neighbour had become more aggressive in terms of racially abusing her.
On 15 May 2020 the resident requested an escalation of her stage one complaint on the basis of the following points:
1. The ongoing issue had significantly impacted her mental and physical health.
2. She was not happy with the complaint response from the landlord which had left out many important incidents of ASB from the neighbour which was ongoing. This included the fact that the neighbour was arrested in 2018 for throwing stones at her front window. She believed the police hadn’t supplied the landlord with a full disclosure regarding her neighbour.
3. While she had been given the option to move by her Housing Officer, she had been diagnosed with a medical condition by her practitioner that required her to have stability, including in her living circumstances. The same housing officer had involved a mediating service, though the resident felt the offer had come too late. She stated that ideally she wished for her neighbour to be removed from the property.
On 19 May 2020 the landlord contacted the resident to acknowledge that it had received her escalation request. On 21 May 2020 the landlord advised the resident that the stage two complaint response or a holding update would be provided to her by 18 June 2020.
As at 22 May 2020 the resident was staying at her partner’s property.
On 6 June 2020 the resident wrote to the landlord noting that her issues with the neighbour went back to 2017. She noted her mental health had been significantly affected by the experience of ASB. She stated that the neighbour had not let workmen into his property for over a year to repair an ongoing leak which had caused her electricity to shut down in her bathroom and bedroom. The neighbour’s refusal to allow access to his property also meant that a new fire alarm system had not been activated. She had reported noise from the property above in particular the running of the washing machine at odd hours of the night. Since working from home during the pandemic the neighbour had gotten worse and more aggressive, smoking cannabis regularly which the landlord had dismissed at an attendance at the property as “cannabis smelling incense.” She stated that the police considered that the landlord had been dismissive of the issue.
On 8 June 2020 the landlord wrote to the resident noting that it was carrying out a full review of the complaint and would respond comprehensively to all points.
On 10 June 2020 the landlord‘s internal emails noted that it had been continuing its regular communication with the resident’s mental health consultant. Noting that the resident wished to be moved due to alleged ASB, the police had communicated to the landlord that the evidence did not support a finding that there was any risk and therefore she was not eligible for a priority move. It noted that it had a difficult balance of operating consistently and fairly to its residents in housing need, whilst also acknowledging that vulnerable individuals would require a tailored approach. Though it stated it could not justify a priority move, it had been supporting her with her housing options and had found a potential mutual exchange, though this was declined by the resident. Its neighbourhood and tenant family support teams were doing “all they could” to support her are were in regular contact with her as well as mental health services, the council and the police. It noted that it would continue to review the case and seek ways via which it might be resolved.
On 11 June 2020 the landlord’s resident services team met with the tenant family support team to discuss possible solutions to the issues the resident was facing. It was agreed that the landlord would call the resident to set out what she was seeking, set expectations to what the landlord could do and express to her that should she continue to make threats of suicide/self harm, it would have to alert the appropriate authorities. The landlord telephoned the resident who stated that the landlord was threatening her with police intervention and that police had previously tasered her twice. The resident raised the matter of the neighbour’s alleged arrest in 2018, to which the landlord replied that this had not been reported to it. The resident’s partner explained that the police had been called twice before by concerned friends/agencies and broken down doors to both the partner’s and her property to check on the resident’s welfare. The partner stated that the resident had been complaining for three years, but the landlord explained to the partner that the first complaint was received the previous year as set out in the stage one complaint response. The conversation with the resident was heated and the landlord’s records noted that it would contact the resident’s medical professional and forward him the record of the conversation.
On 18 June 2020 the landlord contacted the resident to ask how it could provide further support, advising her that it would have to contact the appropriate authorities if the resident’s wellbeing was threatened based on her mental health.
On 19 June 2020 the landlord emailed the resident apologising for missing its deadline for providing the review. It noted this had occurred because it had been required to seek further information from its staff, and that it would provide the final response by 24 June 2020. The resident’s partner responded on the same day stating noting the resident’s dissatisfaction with the response and that she would be returning to her property the next day as she did not feel any proper solution had been put in place and she could not continue to stay at her partner’s temporary accommodation.
On 24 June 2020 the landlord provided its final complaint response in which it set out the following:
1. It understood the complaint to be about the ASB the resident had experienced from her neighbour in the property above, including racial harassment. She had told the landlord in earlier emails that the ASB started after she moved into the property in 2017.
2. Regarding the incident in March 2018 where the resident alleged that the neighbour was arrested for throwing stones at her window, its records did not show that a report on the issue was received. It would therefore not have been aware of the incident at the time to be able to instigate the ASB procedures in support of the resident. Nevertheless it acknowledged that the issue had contributed to the resident’s ongoing stress.
3. The landlord’s records indicated the first report received from the resident was in July 2019, being that the neighbour had directed verbal racial abuse at her. As explained, this was not evidenced by a witness so the landlord had been unable to take steps in response. Further records of ASB incidents in July 2019 demonstrated the resident was not contacted by the landlord in a timely manner after these occurred. Noting that while this was due to a lack of resources at this time, it was not an excuse and it apologised to the resident.
4. Regarding the October 2019 abuse incident where the resident was again racially abused and reported this to police and the landlord, the landlord had contacted the resident to discuss the matter and the neighbour’s use of cannabis. The landlord confirmed it had spoken to the neighbour about his tenancy requirements.
5. In March 2020 the resident reported further verbal abuse, shortly after followed by another incident taking place between the neighbour and the resident’s partner at the time. It noted that while the police were involved, the landlord was unable to progress any legal action due to a lack of effective evidence. The landlord spoke to the neighbour about the allegations which he denied and in turn made counter-allegations about the matter.
6. It noted that, in accordance with its ASB policy, the resident was offered and agreed to participate in mediation and the relevant referrals were made. The landlord recognised the distress and impact on the resident’s mental-well being. It noted however that it was unable to progress towards a legal resolution, such as making the neighbour leave his home, without effective and substantial evidence that supports any allegations. In attempting to provide support, it had engaged a particular team to work with the resident which was maintaining communications with her.
7. It apologised that the call on 18 June 2020 had caused her to feel anxious, but noted that its staff member had attempted to provide support and guided her towards calling the authorities if her wellbeing was endangered. It noted that in regards to other solutions, the resident had been offered a mutual exchange that she had not considered suitable, but that she had also applied for a priority move which was being considered based in part on evidence sought from the police. She would be provided with an outcome of the decision on 29 June 2020.
8. It noted another incident of racial abuse had occurred since the resident returned to her home. The landlord had subsequently contacted the neighbour about this and was following the appropriate process.
9. It considered that the correct ASB processes had been followed, though noting that the resident had experienced stress during the process which had caused detriment to her health, apologising for this. It noted that it would ensure contact was maintained with the resident as a priority, and that the repairs would be expedited. It noted it was partially upholding the complaint on the basis of the delays in its repair process and for a period of time where there was a lack of communication. It noted however that it was unable to progress the matter legally due to not having substantial evidence as required by the courts to instigate enforcement action against the neighbour. It offered her compensation of £75 for the delay in the complaint-handling, specifically the late response at stage two, as well as £50 for the lack of communication when managing the ASB report in July 2019, for a total of £125.
The resident has confirmed that the neighbour moved out of the property in November 2020.

Policies and Procedures

The landlord’s Anti-Social Behaviour policy sets out the following:
1. ASB is 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.
2. It can include physical violence, hate crime, verbal abuse, harassment, intimidation or threatening behaviour, substance misuse and repeated prolonged high-level noise nuisance.
3. Low level disagreements between neighbours where there is no breach of tenancy, lease or licence will generally not be considered to be ASB cases. However the landlord may offer mediation and other support to help residents resolve the issues amongst themselves.
4. All residents who report ASB will be assessed for their risk and vulnerability to ensure the appropriate level of support can be provided and any safeguarding issues are identified. The landlord will respond to reports of high risk ASB within one working day and lower risk cases within five working days. Where the prime responsibility and power to lead an investigation lies with another service, such as the police or the local authority, it will support the investigation and take any necessary supporting action. It will only investigate noise nuisance where the noise is frequently excessive in volume and duration or occurs at unreasonable hours.
5. It will use a range of preventative measures, early intervention and legal action to address ASB, proportionate to the seriousness, impact and frequency of the behaviour, the level of risk that it poses to those affected, and the evidence available to support the case. It will agree an action plan with the resident and any witnesses and keep them informed of the actions taken. It may consider a management transfer for those assessed as at risk.
6. It will close a case after investigation and appropriate action is taken and where:
  1. It is successfully resolved;
  2. There are no further reports for a period of six weeks (unless it has begun legal action or are gathering further evidence) or earlier if agreed with the resident; or
  3. No further action can be taken.
7. It will provide support and advice to victims and witnesses and refer them to external agencies where appropriate, and cooperate fully with the community trigger process to help resolve cases of ASB. It will refer all crime, including threats or acts of violence, to the police. It will share information with third parties where it has an information sharing protocol in place, there are safeguarding concerns or it has a duty to do so for the purpose of crime prevention.
The landlord’s complaints policy sets out a two stage complaint process:
1. At stage one the complaint must be acknowledged within three working days, and a formal response should be provided within ten working days. If this cannot be done, a resident must be provided with an explanation as to why, an update on the progress of the complaint and an updated date for provision.
2. The resident can request the complaint be escalated within ten working days of receiving the stage one response. At stage two the complaint must be acknowledged within three working days, and a formal response should be provided within fifteen working days.

Assessment and findings

Our role at the Housing Ombudsman is to establish what was communicated to a landlord in terms of both the reporting of ASB and the complaint, before then considering the steps taken by the landlord attempting to address and resolve the issue. The Ombudsman does this by considering the evidence provided by both parties, including the reports of ASB. Our role is not to establish whether or not ASB has taken place, but rather to consider the landlord’s response to any reports made. As set out by the landlord in its communications with the resident, its formal complaint responses and ASB policy, it is only able to act in response to ASB when it is made aware of particular incidents close to the time they occur.
While the resident has stated that the ASB issues have been ongoing since 2017, the earliest incident for which there is evidence that the landlord was made aware of ASB is in mid–2019. The resident specifically drew attention to an alleged incident in 2018 when the neighbour was arrested by police. The landlord has responded that it was not made aware of this incident at the time, and has taken the reasonable position that it is only able to act on reports it is made aware of.
The nature of the ASB as reported by the resident and the frequency of the reports by the resident gave rise to a reasonable expectation that the landlord would undertake steps to investigate and resolve the problem. Considering then the response of the landlord to the various reports of ASB made, it has undertaken various steps. Its communication with the resident and complaint responses have set out its response to the incidents occurring in July 2019, October 2019 and March 2020. In large part the landlord has stated that it was hampered by a lack of evidence in support of the resident’s reports of ASB being carried out by the neighbour, noting on various occasions that it was unable to act without evidence supporting the allegations. This issue was compounded by the fact that, when it made contact with the neighbour to put forward the allegations made against him by the resident, these were denied and counter-allegations instead levelled at both the resident and her partner.
The landlord followed its policy appropriately by engaging in communication with the resident in response to these incidents, offering to arrange mediation between the parties, attempting to find a workable solution for use of the common garden by setting out a schedule, providing advice to her and attempting to find evidence available to corroborate her accounts by contacting external parties. In communicating with the police, it was repeatedly told that they had been unable to gather enough evidence to establish that the alleged events had occurred or bring criminal charges against the neighbour which in turn impacted the landlord’s ability to undertake tenancy enforcement action against him. The landlord’s complaint responses specifically draw attention to the high threshold of evidence required to take enforcement action against the neighbour, while appropriately encouraging the resident nevertheless to report breaches of tenancy which, if supported by the police, would allow it to act also.
The landlord has a responsibility to act fairly towards all parties in an attempt to resolve the dispute, given it has obligations to both its leaseholders and tenants. As part of this, it was required to contact the neighbour to lay out the allegations made against them. It has demonstrated taking a proactive approach with the issues of ASB by attempting to address the issues directly with the neighbour. Its communication records indicate that it repeatedly contacted the neighbour to set out the allegations against him and the importance of abiding by his tenancy provisions. Nevertheless, his denial of the allegations, counter-allegations against the resident and her partner and lack of substantive evidence in the professional view of the police meant it was limited in taking further enforcement steps under its policy.
The landlord has acknowledged that it failed to meet its service standards in responding to the reports made by the resident on 11 July 2019 and 22 July 2019, failing to properly engage with the resident until August 2019 at which point the issue had quietened down. The landlord has provided an explanation for this, noting that there was a significant amount of staff turnover during the time including a staff member who was working closely on the case with the resident. Nevertheless, it has acknowledged that this does not excuse its service failure and acted appropriately in offering an apology to the resident as well as compensation of £50 for this particular failing.
The resident has repeatedly communicated to the landlord and Ombudsman that the alleged ASB by the neighbour was causing a strong negative impact on her mental health and her ability to live uninterrupted in her home. It is clear that the resident has experienced a very difficult period and significant distress as a result of the ASB and her own personal circumstances. In response to this, the landlord took steps to address the situation by liaising with its own teams, the resident, the neighbour and police. The landlord has acknowledged the resident’s frustration that the alleged ASB was causing significant distress to her while also emphasising that it was required to follow strict policies and legal processes so as to fulfil its obligations to both them and their neighbour. It has maintained frequent communication with the resident in an appropriate manner following the various reports.
The landlord’s internal communications and contact with the resident made repeated reference to attempting to provide the resident with mental health resources, such as engagement with its particular tenant family support team and an external mental health services organisation in an attempt to support the resident in light of her vulnerabilities. The landlord has also made appropriate enquiries with the police in an attempt to gather evidence with the stated aim of seeking enforcement action against the neighbour. Despite receiving minimal information that would assist with enforcement action, it engaged with the police when new reports arose, seeking updates on their findings and evidence, and asking for their views on whether criminal charges or enforcement action would be likely to succeed against the neighbour.
At some point the landlord made an offer of assisting the resident with a mutual exchange. While the resident noted that the was open to this if it meant a resolution to the issues, she stated she was unable to make a prompt decision because she had recently had a mental health diagnosis and her support network was built around her current address i.e. her GP, counsellor and support services were all only accessible while she remained in her current borough while the property offered to her by the landlord for a transfer would mean a shift to a different borough. While this was a reasonable position for the resident to take, the landlord as a provider of social housing is limited in the number of properties it can offer to residents based on resources and therefore nevertheless acted appropriately in making this offer to her.
The resident requested the complaint be escalated on 15 May 2020, with the final complaint response not being provided until 24 June 2020. While there is evidence that the landlord was continuing to take proactive steps to investigate and potentially provide a resolution to the case during this period, it nevertheless did not adhere to its complaint deadlines in providing this final response. It has acknowledged this failing, apologised to the resident and offered compensation of £75 to her in a recognition of the added distress this caused her.

Determination (decision)

In accordance with paragraph 55(b) of the Housing Ombudsman Scheme there was reasonable redress by the landlord in respect of the complaint regarding its handling of reports of ASB.

Reasons

The landlord has taken reasonable and proactive steps in response to the reports of ASB by the resident, though it has been limited in its response by a lack of evidence. While it is clear that the alleged anti-social behaviour has caused great distress and concern to the resident, the landlord has attempted to engage with her to substantiate the claims she has made so as to allow for it to take stricter enforcement action against the neighbour. It has also engaged with external agencies including mental health services to arrange for support of the resident and the police in an attempt to seek evidence in support of taking enforcement action against the neighbour. It has largely adhered to its policies, while also recognising where it has failed to do so and offered the resident compensation for these failings.

Recommendations

The landlord, if it hasn’t already, within the next four weeks to pay to the resident its offered compensation of £125.

The finding of reasonable redress is dependent on the above recommendation being implemented.