Clarion Housing Association Limited (201806894)

REPORT

COMPLAINT 201806894

Clarion Housing Association Limited

24 May 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 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

1. The complaint is about the landlord’s response to the resident’s reports about antisocial behaviour (ASB) from her neighbour.

Background and summary of events

Background

2. The resident has been a leaseholder of the property of the landlord since 31 March 2003. The resident resides at the property with her partner. The landlord is a registered provider of social housing.
3. The landlord operates a two stage complaints policy.
4. The landlord operates an ASB policy. The policy notes the landlord will work in partnership with external partners to tackle ASB. The policy also notes that the landlord will attempt to take effective action using the powers available to it, but that it may be more appropriate for other agencies to take action, such as the police where ASB is the result of criminal activity. The policy further notes that the landlord will use evidence provided by the police, such as a criminal conviction, to take enforcement action where appropriate. The policy also notes that ‘harassment’ is also a matter for the police.

Summary of events

5. It is not disputed that, from approximately April 2017, the resident began reporting to the landlord that on multiple occasions her neighbour was causing banging noises and that drugs could be smelt coming from his apartment. This service has not, however, been provided with either party’s correspondence following the initial reports.
6. On 8 December 2017, the resident reported that she could smell drugs coming from her neighbour’s flat, and that he let his dog out without a lead and did not clean up after it. She further noted that her neighbour was jamming the communal area light to remain on. She noted she had made multiple similar reports and advised that her preferred outcome was for her neighbour to be evicted. On or around 11 January 2018 the landlord acknowledged the resident’s reports and advised it had met with the neighbour to discuss the reports. It further requested that it meet with the resident to discuss her reports further.
7. It is evident that around this time, the resident reported her complaint to her local MP, who subsequently passed it on to the landlord. On 8 February 2018, the landlord advised the MP that it had made repairs to the communal area light switch to allow it to remain on or off, and that it had passed the resident’s reports of drug use to the police and informed the resident of the same. It had also requested that the resident keep diary sheets recording incidents of further ASB and that it would “contact [the resident] once a fortnight for an update.” This service has not been provided with the correspondence referred to by the landlord.
8. It is evident that the resident and landlord had a face-to-face meeting on or around 16 March 2018, and on 20 March 2018 the resident followed it up by providing the landlord with diary sheets documenting her neighbour’s behaviour. Throughout the course of the resident’s complaint, she has provided both the landlord and this service with regular diary sheets noting her neighbour’s behaviour, including: shouting; abusive language towards the resident; the smell of drugs from the neighbour’s flat; damage to communal areas; filming the resident and other tenants; and banging on the floors.
9. On or around 19 April 2018, the landlord confirmed it had received the resident’s diary sheets covering the period 6 February 2018 to 14 March 2018 and that it had subsequently met with the police to discuss the issue. It advised that based on its investigations, it did “not have any substantiated evidence that your neighbour has breached his tenancy or committed any criminal activity,” and “we would consider that your noise nuisance allegations are considered as lifestyle noise. Most of the noise you are experiencing is everyday living sound.” It subsequently offered the resident mediation with her neighbour and requested that she continued to report any criminal activity to the police. It also advised it would continue to review any additional diary sheets.
10. On 25 July 2018, the landlord sent a letter to all residents noting that it had received reports of ASB at the building and that it would “require evidence from the community that this type of behaviour is taking place,” in order to be able to “take positive and robust action.” It subsequently encouraged all residents to report any ASB.
11. It is evident that the landlord, resident, and police attended a face-to-face meeting on 22 June 2018 to discuss the resident’s reports. The landlord subsequently contacted the resident on 6 August 2018 and confirmed it had received her further diary sheets for the period 2 May 2018 to 21 June 2018. It also noted the resident’s advice that the issue was affecting her health and that she did not wish to undertake mediation. It reiterated that “we do not have any substantiated evidence that your neighbour has breached his tenancy or committed any criminal activity,” and that it considered the noise reported to be everyday noises. It noted both it and the police had separately attended the building but had not been able to detect the smell of drugs. Regarding the level of evidence required, it advised that it required substantiating “reports from other parties that have no connection to your property.” It noted it had passed on the complaint to the local authority’s environmental health team to consider the noise complaints, and also reiterated its offer of mediation. This service has not been provided with any correspondence between the landlord and the local authority’s environmental health team.
12. On 20 September 2018, the resident advised she was not satisfied with the landlord’s response. She disputed there was insufficient evidence and noted she had provided multiple diary sheets detailing her neighbour’s behaviour. She advised it was her understanding that other residents had also provided diary sheets detailing similar behaviour. She also noted that the landlord had previously advised her local MP that she would “have phone calls from yourselves every 2 weeks” but that it “has not been the case at all.”
13. On 25 October 2018, the resident made a formal complaint about the landlord’s handling of her reports. She reiterated that her neighbour shouted at her and that she could consistently smell drugs coming from his flat. She noted she had provided numerous diary sheets in relation to this, and also expressed concern that the landlord’s neighbourhood officer had initially indicated they would pursue eviction, but that the landlord now appeared to be “stick[ing] up for this man all the time.” She confirmed her preferred resolution would be for her neighbour to be evicted.
14. On 31 October 2018, the landlord provided a formal response. It noted that since 24 September 2018, it had not received any further response from the resident, nor had she made any further reports to the police or the local authority’s environmental health team, and so “therefore I assume the noise has ceased and there are no further issues.” It advised as part of its investigation it had invited other residents to substantiate the resident’s reports, but that it had not received any other complaints. It advised it had referred the resident’s reports to the police, who had carried out patrols in the area, but found no further evidence. It further advised that it had provided the resident’s diary sheets to the police who confirmed the reports did not constitute statutory noise nuisance. It advised it had given a warning to the resident’s neighbour about his behaviour and advised him to install carpeting. It concluded that based on the lack of substantiated evidence against the neighbour, it was now closing the case.
15. Following the resident’s concerns that the landlord’s warnings to the resident would not help, and her reiterated comments that the landlord’s neighbourhood officer had initially indicated they would pursue eviction, the landlord sent a further response on 23 November 2018. It advised that its neighbourhood officer had been investigating the resident’s reports in conjunction with its ‘Tenancy Specialist Team’ who managed all ASB cases. It further advised that its neighbourhood officer had “confirmed she made no assurance to you that she would be seeking to evict this resident.” It also advised that it had carried out its investigation in accordance with its ASB policy and reiterated the steps it had taken. Regarding the possibility of eviction, it advised that “it would not be appropriate, proportionate or justified to evict the resident in question based on the reports of ASB you have made,” and that “Environmental Health and the police concurred with this.”
16. The resident has provided this service with several further diary sheets dated across 2019 noting similar ASB from her neighbour. It is not evident whether or when these were provided to the landlord, or whether the landlord responded. It is evident, however, that on 19 September 2019, the resident’s GP contacted the landlord to advise the resident had reported to them that the ongoing issues with ASB were affecting her health.
17. On 7 May 2020, the landlord wrote to all the residents to remind them that drug use on the premises was not permitted and that residents should report criminal activity to the police.
18. On 31 May 2020, the resident requested that her complaint be escalated and advised the landlord that the ASB was continuing and that her neighbour was filming both her and other residents. She advised she had also forwarded her reports to the police. The landlord replied on 4 June 2020 and advised it had also forwarded the reports to the police and requested that she have no contact with her neighbour during the investigation.
19. Following correspondence from this service, the landlord provided a further stage one response on 19 June 2020. It advised that it had forwarded the resident’s reports to the police, but that “to date there is not enough evidence at this stage to take criminal action.” It noted it was yet to receive the resident’s most recent diary sheets and would wait to receive them before considering further action. It further noted that its communications following the resident’s most recent reports were “not made in accordance with policy” and it subsequently apologised.
20. On 24 June 2020, five tenants, including the resident and her partner, sent a joint communication to the landlord reiterating the complaints about the resident’s neighbour. On 2 July 2020, the landlord subsequently advised it was continuing to investigate the complaint, however, on 20 July 2020, the landlord advised that “on this occasion we’re unable to take any further action on this ASB case.” It referred to advice it had “recently provided,” but it is not evident what this related to and no further explanation was given.
21. On 17 August 2020, the resident reiterated the ASB was continuing and advised that she had previously sent the landlord additionally diary sheets. The landlord replied on 28 August 2020 and advised that it was “not able to investigate every incident reported as many prove to be one off, particularly complaints of noise.” It further advised that “We usually will investigate if there are several incidents within a week or if it is causing widespread nuisance and is reported by several residents over a period of a month.”
22. Following further reports from the resident, however, the landlord advised it was continuing to pass her reports to the police. On 12 October 2020, it also reiterated its offer of mediation. The landlord has also provided this service with correspondence sent to the resident’s neighbour dated 26 October 2020 noting the reports he was taking photos of other residents and requesting he cease doing so. It also reminded him that drug use was not allowed in his flat. On the same date, it also updated the resident that it had received her additional diary sheets and passed them on to the police. It reiterated it had attended the property, but that it had “not witnessed or been able to evidence drug use first hand, we understand the police have done the same.” It also reiterated that police were the statutory body for dealing with criminal activity and that it was “reliant on police action being taken through evidence they have obtained, and as neither [the landlord] nor police have been able to obtain this, we are unable to progress such reports.” It concluded that “on this occasion we’re not proposing to take any further action on this ASB case, however, the offer of mediation remains open.”
23. Following continued reports from the resident, the landlord provided its stage two response on 9 November 2020. It reiterated its apology for having not kept the resident sufficiently informed prior to its earlier stage one response. It also advised that its ASB case currently remained open and that it was continuing to forward the resident’s reports to the police, however, the current evidence “is not strong enough for us to take any legal action, the police are similarly not considering any legal action.” It is evident that the landlord also previously offered the resident additional security measures, including a door brace, which is referred to in the stage two response, however, this correspondence has not been provided to this service. It confirmed that it would continue to monitor the situation and keep the resident informed. It concluded that it “cannot see any evidence of our policy and procedure not being followed and therefore no service failure on the part of [the landlord].”
24. On 18 November 2020, the landlord confirmed that “the information you have provided has been discussed with Police and the Local Authority and there is not sufficient evidence for partner agencies to take action” and as such, the case was now closed. It also further reiterated its offer of mediation.
25. The landlord has provided this service with communications between itself, the police, and the local authority’s environmental health team, which confirm that the police did not have any evidence of criminal activity. On 25 January 2021, the landlord reiterated that the case was closed, but confirmed its offer of mediation remained open. It also signposted the resident to external organisations that could offer support regarding her health concerns.

Assessment and findings

26. ASB case management is a crucial aspect of a landlord’s service delivery. Effective use of a robust ASB procedure enables the landlord to identify appropriate steps to resolve potential areas of conflict, improve landlord/resident relationships, and improve the experience of residents residing in their homes. Retaining accurate records also provides transparency to the decision-making process and an audit trail after the event.
27. Cases where there is a history of ASB over an extended period, such as this, are often the most challenging for a landlord to manage. In practice, the options available to a landlord to resolve a case may not extend to the resident’s preferred outcome and it therefore becomes difficult to manage a resident’s expectations. In such instances, closely following the ASB procedure ensures that the landlord can progress the case to a resolution, even if that resolution is not the outcome requested by the resident.
28. While this service has not been provided with correspondence between the parties relating to the resident’s initial reports of ASB, following the resident’s reports in December 2017, the landlord appropriately arranged a meeting with the resident to discuss her concerns further. It additionally appropriately responded to the resident’s MP to outline the steps it had taken, including addressing the resident’s concerns about the light switch. As noted in its ASB policy, where appropriate, the landlord will work with external agencies such as the police where criminal activity is reported, and so it was appropriate that the landlord passed the resident’s reports to the police and advised the resident’s MP of this action.
29. Given that the resident had provided a number of reports over this period, it was appropriate that the landlord offered to provide regular updates to the resident. It is evident, however, that while the landlord has responded to the resident’s reports on a number of occasions, it has not kept to the regular contact it committed to at this time. The Ombudsman notes that fortnightly updates are not mentioned in the landlord’s ASB policy, however, having committed to this course of action, should the landlord have wished to deviate from it, the Ombudsman would expect it to articulate this to the resident, which it is not evident it did in this instance. This would have caused the resident inconvenience in having to chase up updates.
30. Despite not doing so on a fortnightly basis, the landlord appropriately updated the resident as to its investigation in April 2018. It appropriately set out that it had received and considered her diary sheets, having given a synopsis of the contents in its correspondence, and also appropriately advised it had shared the reports with the police. As noted by the landlord in its later correspondence and in its ASB policy, it is appropriate to work with external agencies in order to address ASB and where criminal activity is involved, the police is the appropriate external agency. It is also the Ombudsman’s understanding that there is a high threshold of evidence required to pursue legal action regarding ASB. Having discussed the reports with the police, who had not taken any further action, it was therefore reasonable for the landlord to advise the resident that it did not have sufficient evidence to pursue any enforcement action. Given the resident regularly provided further diary sheets, however, it was appropriate that the landlord advised it would continue to review them and also that it advised the resident to continue to report any criminal activity to the police.
31. The landlord also referred to the noise aspect of the resident’s ASB complaint. As with above, it is the Ombudsman’s understanding that there is also a high threshold for noise to be considered statutory nuisance and so it was appropriate that the landlord measured the resident’s expectations by explaining it considered the descriptions in the resident’s reports to be ‘lifestyle’ noises, without disputing that the neighbour was shouting. Given that the resident continued to report similar ASB from her neighbour, it was appropriate that the landlord engaged the local authority’s environmental health team, who are an appropriate body to assess noise nuisance. While this service has not been provided with this correspondence, it is not disputed that the environmental health team decided to take no further action, and it was appropriate that the landlord articulated this to the resident in its later communications.
32. Given that the landlord had advised it was unable to take action as the level of evidence it had received was insufficient due to being unsubstantiated, it was appropriate that it clarified it would require evidence from other parties to be able to consider further action. It was also appropriate that it subsequently sent a letter to all residents regarding the reports of ASB and requesting residents to provide any further reports. Given that it initially did not receive any corroborating reports from other residents, it was reasonable that it reiterated it did not have any corroborating evidence in its correspondence on 31 October 2018. While it later received correspondence from several other residents noting similar ASB concerns, given that it had shared these reports with police who had carried out an inspection of the property, as had the landlord, and subsequently were unable to determine criminal activity was taking place, it was reasonable that the landlord continued to advise that it did not have sufficient evidence in its formal responses.
33. Following the resident’s further reports and formal complaint made on 25 October 2018, the landlord subsequently responded on 31 October 2018 that it had not received any further reports from the resident, despite it being evident that the resident had provided further reports. Additionally, it would have been best practice for the landlord to have enquired as to whether there were any ongoing incidents, rather than having just “assumed” there were no further incidents. While this would have caused confusion for the resident about whether the landlord was accurately investigating her reports, it was appropriate that the landlord provided a further update on 23 November 2018 confirming it had carried out further investigations.
34. Given that the resident had expressed concern that the landlord’s neighbourhood officer had initially indicated an eviction may be possible, it was appropriate that the landlord set out that this had not been an assurance of action, and that based on its subsequent investigations and the available evidence, an eviction would not be appropriate or proportionate. It was also appropriate that it advised the resident that the police were of the same opinion.
35. Based on the evidence provided to this service, the level of contact between the parties cannot be determined throughout 2019, however, given that it was evident that the resident’s GP contacted the landlord to report that the ASB issues were continuing, it would have been good practice for the landlord to have written to the resident to determine if the situation had changed, which it did not do in this instance. Following the resident’s further reports in May 2020, it was appropriate, however, that the landlord apologised for its communication surrounding the residents most recent reports, and that it reiterated that apology in its stage two response.
36. Following the resident’s further reports in August 2020, the landlord’s subsequent reply that it could not investigate “every incident reported as many prove to be one off,” and that it would only investigate “if there are several incidents within a week or if it is … reported by several residents” is a position not supported by its ASB policy. This would have caused distress and confusion as the resident had reported numerous incidences of ASB to the landlord at this point, as well as sending a joint report in conjuncture with other residents in June 2020. It was appropriate, therefore, that the landlord subsequently confirmed in October 2020 that it was continuing to investigate her reports and forwarding the reports to the police. It was also appropriate that around this time, the landlord contacted the neighbour to request that he desist from taking photos of the residents, as reported by the resident, and reminded him drug use in his flat was prohibited.
37. As noted in the landlord’s ASB policy, it may offer mediation as a possible resolution to disputes between parties, and so it was appropriate that it made an offer of mediation in its formal responses, which it continued to repeat following its final response. It was also appropriate that it made an offer of improvements to the resident’s property, namely the door brace, which was beyond the scope required by its ASB policy. Additionally, given the resident’s reports that her health had suffered as a result of the ASB, it was appropriate that the landlord signposted her to external organisations that could offer assistance.
38. The Ombudsman recognises that the resident has experienced distress as a result of the ongoing ASB, however, the landlord has taken reasonable steps to investigate the resident’s reports, advised where possible what steps it has taken including involving external parties, and has explained its position and its reasoning throughout. It has also continued to offer mediation. Taken altogether the landlord’s actions have been appropriate and there is no evidence of service failure in this case.

Determination (decision)

39. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect its response to the resident’s reports about ASB from her neighbour.

Reasons

40. Throughout its investigation, given the resident’s reports included criminal activity, the landlord has appropriately included the police to determine if the evidence was sufficient to take further action. Given that the police assessed the reports on multiple occasions, and both the police and the landlord independently investigated the property, it was reasonable that the landlord advised it was unable to take further action based on the lack of evidence. Additionally, it was appropriate that it sought further evidence from other residents, and it was reasonable that it came to the same conclusion following the police’s continued finding that the evidence was insufficient to pursue criminal charges.
41. The landlord also appropriately wrote to all residents reminding them of their obligations, and also specifically to the neighbour to request he desist from taking photos of the other residents or using drugs in his flat. It was also appropriate that the landlord offered the resident mediation, as well as signposting her to other organisations that could provide further assistance.
42. While the landlord failed to provide fortnightly updates despite initially advising it would do so, and its communication following the resident’s ongoing reports in 2019 was insufficient, the landlord appropriately apologised and continued to investigate the resident’s reports and provide updates on its position.