Clarion Housing Association Limited (202008798)

REPORT

COMPLAINT 202008798

Clarion Housing Association Limited

28 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

The complaint is about: –
1. The landlord’s handling of the resident’s reports of anti-social behaviour (ASB).
2. The landlord’s handling of the resident’s request that the landlord repair a communal fence.
3. The landlord’s handling of the resident’s report of mould, including in relation to the installation of an extractor fan.
4. The landlord’s response to the resident’s request for assistance with her move.
5. The landlord’s complaint handling.

Background and summary of events

The resident, together with her 6-year old daughter, occupied a ground floor flat in a block of flats under a tenancy which may be assured shorthold. The accommodation is ‘interim’ accommodation secured by the local authority in discharge of the local authority’s duty to secure suitable accommodation pending her accepting permanent accommodation. The tenancy began 1 May 2015. The tenant disclosed she had vulnerabilities to the then landlord at the outset of the tenancy. The original landlord has since merged with the current landlord.

The reports of ASB referred to 4 different neighbours, one on each side, whom this report will refer to as ‘neighbour A’ and neighbour ‘B’, an upstairs neighbour, and a new resident. It was not always possible to determine which complaints referred to neighbour A and which to neighbour B.

Chronology

It is not clear from the evidence or the complaint when the reports of ASB began, however the first report evidenced was 14 October 2019 when the resident reported there were daily arguments from neighbour ‘A’, and there was a number of visitors who would be “be loud all day” and up until 11pm, shouting in the halls and communal areas. The landlord’s record of the report is annotated by the landlord as “shouting and arguing – threshold not met”.
The landlord’s records appear to show that on 21 October 2019, the resident reported neighbour A’s visitors were frequently in the fire exit, standing outside her bedroom window, laughing and shouting. The impact was that the resident kept her curtains closed and the noise disrupted her child’s sleep. She also reported they were smoking drugs. The landlord’s record of the report was annotated “Drug taking – no police details – threshold not met 21/10/2019 Please see notes”.
On 31 October 2019, the resident reported that neighbour A’s motorbike blocked the fire exit on a daily basis, and there was constant arguing and shouting from the property. She also reported that the hallways smelt of cannabis. She suspected that neighbour A was selling cannabis. The air freshener she alleged was used to mask the smell of cannabis made the hall floor slippery. The landlord’s record of the report was annotated “Drug taking – no police details – threshold not met “
On 18 November 2019, the resident reported noise “every night” until the early hours, including banging the heavy metal fire exit door. She again reported the smell of drugs, and constant visitors. She also reported that neighbour B was a heroin addict, received visitors, but was quieter than the previous resident who had engaged in domestic violence. She also reported that the neighbour upstairs was “incredibly loud”.
On the same day, the landlord responded expressing sympathy and reassured her that the matter was being dealt with. It required full details including date, time, the name and address of the alleged perpetrator. It explained there was a “threshold” (for ASB complaints) where one report was sufficient in relation to drug taking and advised the resident to contact the police. However, there needed to be “a certain amount of times in a certain time frame” of noise complaints to show the incident was not one–off, and advised the resident to keep a diary log.
The resident replied that it was the same neighbour (A) she has complained about the “last 3 times, every single day”. She stated that she did not want to report the “heroin addict” (neighbour B) as he “is quiet”. She did not want to be involved in an investigation as she did not see it was her responsibility. The landlord’s record of the report was annotated “Drug taking – no police CRM details given and contact centre advised to keep diary record – you will see advice given by the contact centre”.
There is no evidence of events between 18 November 2019 and 23 January 2020. According to the landlord’s records, the landlord spoke to the resident on 23 January 2020 after she had reported “issues are almost daily”. It was agreed that she would keep a diary to log reports and return this after 10 days. There is no evidence that the resident provided diaries to the landlord. The landlord‘s added a note to state that the matter was reviewed after 29 days and the case was closed.
The landlord attended the resident’s property on 6 February 2020 in relation to the mould and proposed installing an extractor fan in the living room.
On 10 February 2020, the resident reported in person to the landlord storm damage to the fence.
According to the landlord’s records, which do not appear to be contemporaneous, the landlord wrote to the resident on 20 February 2020, requesting she contact the landlord, but did not receive a response. The case was closed on a later date that was not clear and this was communicated to the resident.
The resident sent a text to the landlord on 22 February 2020 to report that she had seen people climbing over the fence, and causing noise nuisance.
On 24 February 2020, the landlord texted the resident stating there was an “open job“ regarding the fence. On 27 February 2020, the resident enquired about the installation of an extractor fan for her kitchen. She was aware it was not possible to fit such a fan in the kitchen, but reminded the landlord that it was agreed that a fan could be placed in a non-opening living room window.
The landlord wrote to the resident by text on 28 February 2020 to say that the fence had been inspected and a job raised for a date to be advised. This was followed up on 3 March 2020, by a text from the landlord to the resident stating that the repair to the fence had been arranged for 26 March 2020.
The resident texted the landlord on 5 March 2020 to report that her neighbour (possibly neighbour A) was a drug addict. She was not sure of the property number where the neighbour lived as the number was not visible. The landlord replied the same day stating that the repair to the fence would take place on 26 March 2020, as it was a six-hour job for a two–man team. It advised the resident to report “the drug addicts” to the police as drugs are a criminal issue and once it had address details, it would open an ASB case. The resident replied noting that the repair to the fence would take “six weeks”, even though the repair to the fence was a security and privacy issue.
On 13 March 2020, the resident requested that the fence repair to be expedited as it was being used by visitors for access to her neighbour who were creating a noise disturbance. It is not clear which neighbour, A or B, was being referred to.
The resident reported on 15 March 2020 that her neighbour’s (A or B) visitors were climbing the fence, and also begging. According to the landlord’s notes of the records, on 16 March 2020, the landlord advised the resident to report the matter to the police. According to an internal email of 2 September 2020, the landlord had requested information from the police about neighbour A or B on the same day, 16 March 2020. The landlord also reiterated to the resident that the repair was booked for 26 March 2020.
On 21 March 2020, the resident made a further report of noise nuisance, and on or around the same date, she also reported suspected drug use as well as numerous visitors, but it is not clear to which neighbour the resident was referring.
On a date in March, but the text is not dated, the resident stated that the flat number of the tenant she was complaining about had been removed, unlike the flat she had an open complaint about. She said she would talk to the police but after that , she did not want to be involved. The text also referred to the resident receiving letters from the landlord referring to “zero drugs will be tolerated”.
Lockdown began on 26 March 2020.
According to the landlord’s internal email of 2 September 2020, the landlord had written to one of the neighbours in relation to drug use on 30 March 2020. The landlord’s notes also stated that the resident had made an isolated complaint on 1 April 2020 regarding another neighbour and suspected drug use. On the same day, the landlord wrote to the resident to say that it had tried to contact her, but without success, and consequently would close the case by 8 April 2020 if they did not hear any further. According to the landlord’s undated notes and email, the landlord tried to contact the resident several times, as well as writing to her. The landlord wrote to the resident on 28 April 2020 to confirm it was closing the case.
According to the landlord’s internal email of 2 September 2020, it chased the police on 29 April 2020 in relation to the reports of drug use in the block. It noted that it could not trace a response.
A fire took place in one of the neighbour’s property (A or B) on 2 May 2020. According to the resident, it required the resident and her daughter, together with other residents, to vacate the building. The neighbour, in whose flat the fire took place, vacated the property soon after. According to the landlord’s report to this service, the fence was made safe on 7 May 2020, but it was unable to do anything else due to lockdown. According to the resident’s report this consisted of putting up tape and bollards.
On 13 May 2020, the resident made a formal complaint to the landlord in relation to the following:-.
1. ASB consisting of her neighbours using and allegedly selling drugs including in communal areas, standing and riding motorbikes through the fire exits, wedging fire exit doors open, and numerous visitors creating noise disturbance in the early hours. The resident did not see why she should have had to report it. She was unwilling to contact the police due to her fears for her safety.
2. Damage to the communal fence permitting access to visitors to the block, creating noise disturbance. She also suspected drug use. The resident was of the view that the fire was caused by one of the neighbour’s visitors who had gained access through the fence. In the circumstances, she blamed the landlord for the fire, as the landlord had not repaired the fence.
The landlord wrote to the resident closing the recent ASB case on 16 May 2020, without providing an explanation.
According to the landlord’s records, one of the neighbours, A or B, moved out of the property on 3 June 2020. On 9 June 2020, the landlord wrote to the resident to say the case was closed as the neighbour had moved away.
The resident wrote to the landlord on 23 June 2020, chasing a response to her complaint. She also stated that the temporary repair of tape and bollards was not effective, and on 8 July 2020, the resident chased the complaint again.
According to the landlord’s internal email, it received a complaint from the resident on 9 July 2020 regarding “extensive mould” in the property. A repair had previously been raised to install an extractor fan, but it had not gone ahead.
The landlord’s first response of 17 July 2020 to the resident’s complaint stated that the complaint was received on 9 July 2020, not 13 May 2020, and stated as follows:.
1. The outstanding installation of an extractor fan was booked for 30 July 2020. The installation would depend on the layout of the property.
2. The landlord re-inspected the fence damage on 2 July 2020, and a follow–on job to carry out the works was booked for 29 July 2020. The landlord stated that the delay was regrettable and largely attributable to Covid19 restrictions that postponed all non-critical repairs. Once the restrictions had been lifted, there had been a large backlog of repairs to attend to. The resident’s complaint in relation to the delay to the fence repair was upheld.
3. The landlord was of the view that the management of “this ASB incident” was carried out in line with its formal process. The perpetrators had moved out.
4. The only solution in relation to the resident’s wish to move was for the resident to bid for properties with the local authority.
According to the landlord’s report to this service, the fence was repaired 29 July 2020. There is a dispute as to the date as the resident stated that the repair took place on 12 August 2020.
The resident escalated her complaint on 7 August 2020 for the following reasons:-
1. The fence repair should have been made a priority as soon as it was reported as a security issue “eight weeks before lockdown”. She accepted the limits due to lockdown but there was additional delay. She attributed psychological damage to her and her child as a consequence of the fire to the landlord.
2. The repair to fence was in fact rescheduled for 12 August 2020 due to illness. The resident wanted compensation for every day (bar lockdown) the fence repair had not been completed within an acceptable frame for an emergency repair. In the resident’s view the repair should have been classed as an emergency “due to it being a security issue which led to arson”, excluding the lockdown period when work was not physically possible. The landlord could have evicted the neighbour or treated the fence as an emergency security issue.
3. The resident was querying whether the front room extractor fan installation would “help the mould situation in the bedroom where the mould is worse”. The resident also reported she and her daughter had suffered sore throats and coughs, and damp damage to her possessions due to the mould.
4. There was not sufficient room in the property for a washing machine.
5. The resident has been informed by the local authority that it was possible for the landlord to nominate a tenant for a specific property. Given that a) a washing machine could not be installed, b) the ASB issues would never be resolved c) bidding was not getting her anywhere, she would like help with the selection process, not to bypass the system entirely. The resident had lodged a complaint about a new neighbour. She was unhappy there is a “constant cycle of dangerous people being moved into” the neighbouring flats.
6. She would like a genuine apology.
The landlord’s records show that as part of the investigation of the complaint, the landlord made enquiries and conducted an investigation into its own handling of the issues raised by the resident. It asked its surveyor to inspect the property to assess the likely effectiveness of installing an extractor fan.
The landlord considered its ASB policy and procedure on 28 August 2020. It noted its thresholds were prescriptive. It accepted it should look at the situation given the number of complaints and the nature of the accommodation.
The landlord’s internal email dated 4 September 2020 showed that it planned to improve its practices. It added that residents should be told that reports regarding drug–taking required a police crime reference number. It resolved to manage customer expectations, but also provide more timely responses. The landlord observed that its automated letters did not provide customers with tailored responses.
The landlord attended the resident’s property on 9 September 2020. It considered the installation of extractor fans in the kitchen and living area. It was concluded that the best option, having regard to the potential effect on the light and noise in the property, was to install vents into the living room window, which work was carried out the same day.
The landlord’s surveyor attended the property 15 on September 2020 in order to assess the mould, and ascertain whether it was possible to accommodate a washing machine. The inspection identified black mould in the bedroom and bathroom and advised chemical treatment. It also identified that alterations could be made to facilitate plumbing in a washing machine. The work was requested accordingly.
The landlord wrote with its final response on 21 September 2020 as follows:
1. The landlord would normally aim to complete fencing repairs within 28 days but these were not completed until 20 July 2020. The vast majority of this delay was due to the restrictions introduced in response to the coronavirus pandemic. It understood the impact was the ASB she experienced. It offered £50 compensation for the ‘minor delay’ given the impact this had on the ASB the resident had reported at the time.
2. The delay for the works to install an extractor fan was due to the nationwide lockdown. No service failure occurred. It would not address the damp issue as it was not in the original complaint. However, an inspection was arranged to make a full assessment of whether a fan was likely to successfully deal with the issues of condensation.
3. While the landlord’s policy and procedures had been broadly followed in relation to reports of ASB, no service failure occurred. However it accepted that communication should have been more regular owing to the nature of ASB reported. It offered £50 compensation. It advised the resident to make regular reports of any further ASB and how best to report it on-line. She should also report any criminal behaviour (such as drug taking/dealing) to the police and provide the landlord with the crime reference number.
4. The landlord resolved to take a more holistic approach to the ASB reported at the property and it would speak to the local authority about the need to carry out rigorous checks before placing individuals at the property. It would be introducing good neighbour agreements for residents to sign up to.
5. In relation to a move, the landlord referred the resident to the local authority. The resident was made a direct offer of a property on 30 December 2019 which she refused. She bid on two properties on 5 March 2020 and on 18 March 2020 unsuccessfully due to position. It advised the resident to bid on all suitable properties (including flats).
The resident wrote to the landlord on 23 September 2020. She had accepted the lockdown factor. The fence was not repaired on 20 July 2020 but was postponed to 12 August 2020. She considered that the compensation was insufficient, given the effect the ASB had on her.
The mould eradication treatment in the bedroom and bathroom was carried out 12 January 2021. Following attending the property to carry out works to accommodate a washing machine, further works, subject to further investigation, were identified and arranged for 25 January 2021.
The landlord wrote to this service on 2 February 2021 that it had added £50 compensation for delay to its final response to the complaint.
On 12 May 2021, the landlord having made further enquires on behalf of the resident, the local authority stated that the resident had not been bidding regularly which accounted for the resident’s extended period within temporary accommodation. It added that if the resident were to bid on something soon, she would come very high in the shortlisting indeed and that given the resident’s time spent in temporary accommodation, the local authority would consider facilitating a direct offer nomination.

Assessment and findings

The landlord’s handling of the resident’s reports of anti-social behaviour (ASB).

The landlord’s ASB policy and procedure:

ASB policy

The landlord’s ASB policy categorised criminal activity as the most serious ASB. It expected residents to report criminal behaviour to the police.
According to the landlord’s policy, ASB includes noise nuisance and would be investigated within 5 working days of the report, however it would not investigate the report unless a threshold is met. The threshold in relation to noise was: three separate incidents reported in the previous seven days by the same person or a member of the same household, or five separate incidents reported in the previous 28 days by the same person or member of the same household.

The ASB procedure

The landlord’s ASB procedure sets out the various levels of staff involvement. The contact centre would categorise the ASB case and transfer the “qualifying” complainants to its tenancy specialist (“TS”). The TS had overall responsibility for managing all qualifying ASB cases from the beginning to the end.
The ASB procedure stated that ASB complaints categorised as crime were not subject to a threshold requirement. It also states that the landlord would request a crime reference number, to ensure that the problem was reported to the police before it would investigate, unless it had identified the complainant as vulnerable Where a complainant did not call back with a crime reference number the TS would use its judgement on how to progress the case (e.g. close the case or contact the complainant or the police for an update). The timescale for a response was five working days.
If the landlord had a “duty of care” to the complainant and there was a record of their agreement to delegate their authority to another person, the appointed person should be asked to contact the police.
A noise or ‘other ASB’ complaints “must” reach one of a “ASB thresholds”. The thresholds were “designed” to ensure the landlord “investigated ASB that reaches a sufficient frequency, severity and duration to demonstrate an emerging pattern of behaviour”.
Generalised comments about the ASB (e.g. “It happens frequently”) would not ordinarily be recorded as individual incidents, but “the complainant should be asked further questions to obtain specific information about the retrospective incidents”.
If the threshold has not been met the complainant will be advised by phone by the contact centre or by automated communication.
Vulnerability or where the landlord recognised a duty of care was where a complainant was “more likely to be negatively affected by or vulnerable to ASB because they lack social, economic or psychological resilience.” It added “if we have assessed the complainant as vulnerable, the TS will contact the police on behalf of the customer or request their appointed DA to contact the police.”
The criteria were whether the resident was over 75 years of age and the support it received, and in receipt of social care. The landlord would also consider a complainant who was upset, distraught, frightened.”
The landlord would investigate “promptly and efficiently” in order to “maximise our chances of resolving the ASB complaint”. The procedure set out the steps that should be taken, including interviewing the complainant, and agreeing an action plan which should be carried out in all qualifying cases that crossed the ‘threshold’ to investigation.
The policy required the landlord to contact the complainant three times before the “target date”. The procedure set out a series of questions in order to evince greater detail such as the location of incident/s. It added an action plan would include requesting logs and explaining the importance of logs.
The procedures set out the following circumstances in which the ASB case can be closed included:–
1. The reported behaviour cannot be reasonably described as a nuisance.
2. There is no evidence.
3. The complainant or perpetrator will not try other approaches, such as mediation, where there is not enough evidence to take any more formal action.

Assessment and Findings

It was appropriate, if within the strict letter of the policy, that the landlord considered that the reports of noise nuisance of 14, 21 and 31 October 2019 were not sufficient to amount to ASB. The landlord needed to assess the nature and frequency of the noise. However, the landlord could have considered exercising its discretion and considered writing to the perpetrator given the resident made three reports in the space of two weeks.
It was appropriate that the landlord advised the resident a) to complete diary logs and b) to request full details of the alleged perpetrators in relation to noise. This was in accordance with its policy that ASB involving noise complaints were not isolated incidents. It is reasonable that a landlord does not respond to single or infrequent noise complaints as this would be an unreasonable use of its resources, and infrequent noise complaints would be unlikely to amount to cause nuisance and thereby constitute ASB. The landlord would also require as much evidence and as much detail as possible without which it would not reasonably be able to address the resident’s reports with the neighbour. The importance of clear information from the resident was demonstrated by the potential confusion about which neighbour the complaint was about. In particular, the resident had initially said she was complaining about neighbour A and not neighbour B, but subsequently complained about neighbour B as well.
However, it was not reasonable of the landlord to require diary logs in order to progress the resident’s reports, and not consider taking any other steps. The policy required the landlord to be pro-active and, for example, where the resident had said there were a number of incidents, to ask further questions to obtain specific information about the retrospective incidents. The procedure set out example questions. Moreover, there is no evidence that the landlord invited the resident to complete a complaints diary until 18 November 2019, or to explain its necessity. It would have been appropriate to have provided the resident with guidance on how to progress her reports of ASB.
While it is noted that the landlord reassured the resident on 18 November 2019 that her concerns were being dealt with, there is no evidence of the steps having been taken at that time. Indeed, the landlord’s contact centre specified it would not be escalating the case to the TS team at that stage. However, as appropriate, it did, on that occasion, seek further details as required by the policy and explained why a log was helpful. Matters appear to have progressed after this though there was no evidence that was the case until 23 January 2020 at which stage a TS was already dealing with the matter.
The landlord’s decision to state that the resident’s report of 21 October 2019 in relation to drug taking did not meet the landlord’s threshold was inappropriate. The report should have been referred to a TS on receipt of the report as a report of crime meets the ‘threshold’ automatically.
The landlord, at least initially, treated the resident’s reports of drug use as not meeting its threshold of ASB, unless the resident had made a report to the police, given the resident’s reports were annotated by the landlord as ‘threshold not met’, or ‘no crime number’. It was concerning than even when the landlord reviewed its own actions, it was satisfied it had complied with its policies, and stated in an internal email of 4 September 2020 that ‘drug taking requires police crime reference numbers’. The landlord took the view that it would not take any action until the resident had reported her suspicions of drug taking and drug use to the police.
There are very good reasons for the landlord to encourage the resident to report her suspicions to the police. The police are the enforcing body for criminal behaviour and have far greater investigative and sanctioning powers than the landlord. It is also preferable that the witness with direct knowledge makes the report. It may also lead to providing stronger evidence than it could otherwise procure that would assist the landlord in any taking legal action against the neighbour, if it chose to do so.
However, declining to take any action on the basis that a crime number was a pre-requisite was inappropriate. The policy did not state that obtaining a crime number was an absolute pre-requisite for the landlord to take action in relation to criminal behaviour. The procedure required a crime reference number, to ensure that the problem is reported to the police before it will investigate. If the resident did not provide this “the TS will use its judgement on how to progress the case”. This meant that the landlord did not interview the resident or discuss an action plan, as required by the policy. This stance did not reflect its ‘zero tolerance‘ to drug taking set out in its round robin letter of 15 March 2020, or the ASB policy which promised to tackle anti-social behaviour.
There are a number of steps the landlord can consider taking in response to reports of drug use and drug dealing, even without a crime number. It can consider carrying out its own investigations, including visiting the property in order to see whether it could identify signs, such as odours and drug paraphernalia. It can make enquiries with the police, under its information sharing protocol. It can, with the resident’s agreement, write ‘round robin‘ letters to residents, as it did eventually, it can seek an acceptable behaviour contract, it can write to the alleged perpetrator warnings that their conduct may constitute potential breaches of tenancy and/or grounds for possession. Furthermore, the Housing Ombudsman would expect the landlord to be victim-focussed in its approach, and consider the effect of drug use, or a drug-use environment on a mother with a young child.
In addition, the resident may have good reasons for not wishing to make reports to the police, as she eventually expressed was the case. Moreover, the police has its own set of criteria and it will not necessarily pursue a resident’s reports. Finally, by not taking action, the landlord would give the impression that it did not take drug taking seriously, as indeed was the impression gained by the resident.
The landlord then contradicted its own position by informing the resident on 18 November 2020 that a single report of drug taking did meet the threshold, which was the correct position, according to its policy.
There is no evidence that the landlord did eventually respond to the resident’s reports of drug taking prior to March 2020, some five months after her first report, when it sent out ‘round robin’ letters that the resident referred to receiving in relation to zero tolerance to drug taking, and it wrote to the neighbour on 16 March 2020. It also wrote to the police on 29 March 2020 and 29 April 2020.
The landlord should have considered taking steps in response to the resident’s complaints of drug taking sooner and considered reassuring the resident it had done so. It would have been appropriate for the landlord to have considered whether it owed her a particular duty of care and made a ‘third-party’ report itself to the police, in line with its ASB policy and procedure. While it is not apparent whether the resident fell within its policy. However, equally there is no evidence the landlord made any relevant enquiries. At the very least, it would have been reasonable to consider whether it had a “duty of care” under its policy, given she had expressed distress and anxiety at the situation, her stated vulnerabilities and that she had a young daughter. A “third party report” would have, rightly and under the policy, required the resident’s agreement and cooperation in terms of her providing factual detail, including dates and times, and the resident expressed reluctance to get involved. Moreover, the resident did not explain she was fearful of reporting her suspicions to the police, except by a brief text, until 13 May 2020 by which time the landlord had already taken steps. In the circumstances, the impact of this particular failure was minimal.
While it is noted that the landlord stated it was unable to send ‘round robin‘ letters due to the lockdown, it would have been reasonable for the landlord to have considered sending a ‘round robin’ letter to the residents in order to ensure that exits were free of obstacles as a matter of fire safety.
It was reasonable of the landlord, given it was unable to contact the resident, to give the resident a lengthy period (“29 days”) in which to respond to its request for contact from the resident, and subsequently close the case on 20 February 2020 and on 28 April 2020, having given warning it would do so. While credit for the neighbours moving out cannot be attributed to the landlord, whatever the reasons, the fact was that both neighbours had moved out, and therefore it was reasonable to close the ASB cases. The landlord’s policy required engagement from the resident, including evidence.
While the landlord should have provided clearer explanation in its letters of 16 May 2020 and 9 June 2020 for closing the cases, it was reasonable that the landlord did not take steps in relation to the noise complaints and close the cases, given the lack of clarity about the complaints and the resident’s lack of engagement. The resident declined to provide diaries, or even provide fuller details of her complaints. Even once the resident agreed to provide diary reports on 23 January 2020, she did not do so. On several occasions, she did not respond to the landlord’s requests for contact. The resident believed she should not be required to provide information, in summary, the landlord would require the resident to engage with it in order to take any effective steps, but she declined to do so, and the landlord did what it could in the circumstances. While, again, it did what it could, given the level of engagement by the resident, the landlord was initially slow to respond to the reports of drug use.
There was failure by the landlord in its response to the reports of drug use from October 2019 to March 2020, with the result that the resident was left to live with the issues, without the support of her landlord. The matter was only final resolved by the residents moving out, which occurred without the landlord’s intervention.
As well as its inappropriate response to the reports of drug taking, the landlord should have responded more pro-actively to the resident’s reports of noise nuisance.

The landlord’s handling of the resident’s request that the landlord repair a communal fence.

The landlord’s repairs policy stated that an emergency repair could be classified as one that presents an immediate danger to the resident or the public, or would jeopardise the health, safety or security of the resident. Any emergency repair should be attended within 24 hours and works to make safe or temporarily repair should be completed at this visit. Further repairs may subsequently be required. Repairs to communal areas should be appointed dependent upon the nature of the work (emergency or non-emergency, as outlined above) but must always be completed within 28 days.
The landlord had responded and created a job to repair the communal fence, so that by 28 February 2020 it had been inspected and subsequently a repair arranged for 26 March 2020. Given that the timescale for a repair to a communal repair was 28 days, this was an inappropriate delay, given that the policy stated that a communal repair ‘must’ be carried out within 28 days, by 10 March 2020. The delay would have been at the most just over two weeks and therefore not significant. Moreover, the landlord’s explanation for the delay, that the job required two people for a full day, was reasonable.
While a repair to a fence between the public road and a residential block was by definition a question of security, it would not necessary jeopardise the resident’s own personal security. Therefore damage to even an external fence is not necessarily an emergency. Her report on 22 February 2020 focused on noise, and she did not report the link to suspected drug activity until mid-March. Given the resident’s reports of people climbing over the fence to gain access to the block, it may have been appropriate for the landlord to have considered whether this was an emergency repair sooner than 4 May 2020. However, the resident had already reported people congregating in the fire exit area and outside her bedroom, and disturbing her in October 2019, prior to the damage to the fence. The resident’s reports were mainly of noise nuisance, and people congregating outside her flat, rather than of fears for her and her daughter’s own safety. In the circumstances, the arrangement to carry out the repair works on 26 March 2020 did not have a significant impact on the resident.
Unfortunately, the commencement of lockdown prevented the works being carried out on 26 March 2020, which the resident reasonably fully accepted. In response to the resident’s reports, the landlord affected an emergency repair by putting up tape and placing bollards on 4 May 2020. It may have also been reasonable, given that the landlord had accepted the issue of risk of ASB as a result of the disrepair to the fencing, to have monitored the situation.
The resident attributed the fire of 2 May 2020 to the failure to repair the fence. Even if the fire had been caused by a visitor or intruder who gained access over the fence (and the Housing Ombudsman has not seen evidence this was the case), it is not possible to establish a causal link, and moreover the fire was not foreseeable. While the fire was no doubt a very distressing event for the resident and her daughter, the cause of the fire cannot be attributed to a failure by the landlord.
The first lockdown ended on 10 May 2020. The date of the repair to the fence is disputed. The landlord stated it was 29 July 2020 while the resident’s stated that the repair to the fence was not undertaken until 12 August 2020. Given there was only a report of the repair and the resident would have witnessed the final repair, it is reasonable to conclude that, on balance, the repair was finalised on 12 August 2020. However, if there were an error by the landlord, the margin is not significant. The landlord’s explanation that repairs were further hampered by the backlog created by the lockdown and difficulty in accessing materials is reasonable. The landlord’s position not to keep a resident informed of progress on communal repairs is reasonable as that would not be a proportionate use of its time. However, given the resident’s particular concerns, which the landlord recognised, as demonstrated by its effective emergency repairs on 4 May 2020, it would have been reasonable to have kept the resident informed of progress in relation to the fence. This would have provided reassurance and helped the landlord/tenant relationship.
In its letter of 17 July 2020, the landlord recognised that a proportion of the delay to the repair was a service failure. Its explanation that the delay was largely attributable to the pandemic is reasonable. In its review letter of 21 September 2020, the landlord accepted the impact the delay to the repair had had on the resident given the ASB, and offered the resident compensation of £50.
The issue of security for the resident and her child was an important one. The resident felt unsafe, and reported resultant psychological damage. While the Housing Ombudsman may order a remedy to reflect any distress caused by any service failure, the role of the Housing Ombudsman is not to assess how any service failure affected the resident’s mental health. Causation and personal injury are areas in relation to which the resident would need to seek legal advice. Moreover, the role of the Housing Ombudsman is not to be punitive but to compensate the resident for the stress and inconvenience it had suffered due to the service failure or maladministration. The Housing Ombudsman does not award damages in the same way a court would, but will identify a suitable remedy to reflect the landlord’s service failure, given the circumstances of the case. It also generally takes into account the landlord’s need to make the most effective use of its limited resources as a social landlord. As set out above, the ASB the resident complained of was already occurring prior to the damage to the fence. It is reasonable to conclude it ceased once neighbour A or B had vacated on 2 May 2020 and/or 3 June 2020, as was indeed the landlord’s position. The fire was not foreseeable and therefore not attributable to the landlord. In the circumstances, the landlord’s offer to the resident of £50 compensation was reasonable, and within the guidelines set out in the Housing Ombudsman’s guidance on remedies, as well as being in line with the landlord’s own policy to award a maximum of £50 for repairs which have gone over target time.

The landlord’s handling of the resident’s report of mould including in relation to the installation of an extractor fan.

Section 9a of the Landlord and Tenant Act 1985 implies an obligation into the tenancy agreement that the landlord must ensure the property is ‘fit for human habitation‘ in relation to, by virtue of Section 10 of the same act, ventilation.
Section 11(1)(a) of the same act implies a covenant “to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes)”. The obligation only arises if there has been disrepair or in other words some form of deterioration. There is no suggestion that the mould was a result of disrepair or deterioration of the structure of the property. On the contrary, the remedy was not to effect a repair but to install new fittings.
The installation of an extractor fan was raised on 6 February 2020 when it was proposed that an extractor fan be placed in the living area as it was not possible to do so in the kitchen. It is reasonable to conclude that this was in response to previous reports of mould. The resident chased the repair on 27 February 2020. While the repair was raised, it was not picked up until the resident chased it on 9 July 2020. The landlord attributed the delay to the lockdown, however given the work was raised on 6 February 2020, and was only picked up again on 9 July 2020, it would appear that the delay was not entirely attributable to the lockdown and consequential delays. The Housing Ombudsman would expect the landlord to keep track of non-urgent repairs so as to follow them up. The landlord’s policy also provides for the same: “this will enable us to track all the cases placed on hold during this time”.
In the circumstances, that while largely due to lockdown and unavoidable, some of the delay was attributable to the landlord. The repair was booked for 30 July 2020, but the resident did not provide access that day and the next visit took place on 9 September 2020. The landlord reasonably made it clear to the resident that the installation of a fan was not straightforward. The landlord put some considerable thought into remedies to prevent mould caused by condensation, bearing in mind the potential effect of a fan on the noise and light into the property. It concluded that vents were the best option which were fitted on the same day. Further prompted by the resident’s complaint and escalation, the landlord also quite correctly instructed its surveyor to attend the property. The surveyor recommended further chemical treatment of the mould, which was followed up. This was appropriate and in line with its obligations under section 9a of the Landlord and Tenant Act 1985.
The resident stated that her complaint was about whether the proposed remedy would be effective. It is reasonable for the landlord to use its expertise to assess how to address condensation and mould in a property. Installing extractor fans or vents is a standard way to increase air flow and ventilation in a property and it is difficult to see what alternatives the landlord had. The resident’s answer to the issue was to move from the property to another property, however that, correctly, did not preclude the landlord from effecting remedies that it was able to, and it was commendable of the landlord to look at addressing the condensation thoughtfully and with thoroughness.
In relation to compensation in respect of the mould, the relevant guidance to the landlord’s statutory obligation states that a home is unfit for habitation if, and only if, it is so far defective that it is not reasonably suitable for occupation in that condition. The obligation arose no sooner than 20 March 2020. For a claim to arise, the resident would have to show, and a court would have to decide, that the property was not fit for habitation, which could include insufficient ventilation. However, the role of the Housing Ombudsman is not to assess damages under legal principles, as a court would, nor to assess causation and the effect on the resident’s health or damage to possessions, for which the resident would have to seek legal advice. However, the Housing Ombudsman can propose compensation for distress and inconvenience where there has been maladministration by the landlord.
In some cases, the Housing Ombudsman orders the landlord to compensate a resident on the basis of what is fair and reasonable when, because of the landlord’s fault, the resident had incurred an actual, proven financial loss, though only in rare and very straightforward cases. This is not such a case, given there are too many factors the Housing Ombudsman would have to evaluate, such as causation and the value of any such claim.
While the resident suffered distress and inconvenience due to the mould in the property, the delay attributable to the landlord was minor. The period of the delay was from 6 February 2020 to 30 July 2020 when the landlord attended to effect the works. The delay due to lockdown, and the consequential backlog, should be excluded, because that delay was not attributable to the landlord. In the circumstances, compensation similar to the delay in respect of the fence would be fair and reasonable in the circumstances.

The landlord’s response to the resident’s request for assistance with her move.

The landlord’s referral to the local authority was reasonable given that the resident had been placed in the accommodation by the local authority pursuant to its statutory homeless duties, so her move would be a matter for the local authority, not the landlord. If the resident was not satisfied with the length of time she had been in temporary accommodation, or its suitability, she should have raised this with the local authority
Even if, under the landlord’s allocations policy, the landlord may have considered a ‘management transfer’, this was limited to exceptional circumstances, namely where the tenant is “at risk of harm as a result of serious anti-social behaviour … and this is verified by the Police”. While the landlord would need to consider whether the anti-social behaviour was sufficiently serious, there was no involvement by the police. There were no steps available to the landlord to assist the resident with her move.
However, as a result of the resident’s complaint, it nevertheless made enquiries into the resident’s housing situation. It identified the resident had been offered a property on 30 December 2019, which she declined, and had only bid for two properties since. It was reasonable of the landlord to advise her to increase her bidding, as that was her sole option.
The landlord was not in a position to nominate the resident to a property, as had been understood by the resident, as that was, and is, outside its power. While the period beyond the final response to the resident’s complaint is outside the scope of this report, it is noted that, as a result of the landlord’s communications with the local authority, the local authority would consider facilitating a direct offer nomination which will assist the resident in her move.
The move is a matter for the local authority, and it is to the local authority the resident should turn, and with whom she should discuss her rehousing.

The landlord’s complaint handling.

The date of the first complaint is disputed. The resident stated that the date of the first complaint was 13 May 2020 while the landlord stated it was 9 July 2020. The delay may have been caused by the resident sending the complaint, as well as the follow-up of 23 June 2020, to the repair team instead of to the complaints team. However, the repair team should have identified that the resident’s email 13 May 2020 was a complaint and at the very least responded to the resident’s follow-up email of 23 June 2020. The resident was put to the trouble and frustration of chasing her complaint, which did not assist the landlord and resident relationship.
The then complaints procedure did not provide a timescale for response. The Housing Ombudsman’s complaint-handling code, though not current at the time, suggests a reasonable timescale for response to a first complaint of 10 working days. While the resident added further complaints, including on 9 July 2020, the timing of the reply (17 July 2020) to a complaint made 13 May 2020 was outside the bounds of reasonableness. It required the resident to chase a response, and constituted a service failure, equivalent to the service failure the landlord acknowledged in respect of the delay to its final response of 21 September 2020.The offer of £50 compensation for the delay of the final response was reasonable and the same compensation should be paid in relation to delay to the first response.
While the response of 17 July 2020 explained how it had addressed the mould due to condensation and what it planned to do, it did not address the delay to those works. While the landlord accepted there was some service failure in the delay to the repair to the fence, it failed to explain the reason why the fence was not treated as an emergency. It did not explain in which way it considered it had acted correctly in relation to the ASB. It would have been appropriate for the landlord to use the complaints policy to explain itself, in order to promote transparency, and to demonstrate it had understood the complaint. More importantly, explaining its reasoning would also promote understanding, manage the resident’s expectations and create a better relationship between the landlord and resident.
The resident stated that she was not complaining about the delay to the installation of the fan but only about the mould. The resident’s complaint was not provided to this service, however, the landlord’s email of 9 July 2020 described her communication as a complaint about mould. It was therefore not reasonable for the landlord’s response not to address the complaint about the mould. Nevertheless, it did address resolving the mould, and therefore the impact of its stance was minimal. Unfortunately, the landlord referred to the date of the repair to the fence as 20 July 2020. Given the previous correspondence and documents, it is reasonable to conclude that was a typographical error for 29 July 2020. However, while the resident noted the error, it was not of major significance.
It was reasonable exercise of the landlord’s discretion to make enquiries during the complaints process on the resident’s behalf regarding her securing permanent accommodation. It would also have been helpful for both parties if the landlord had provided a clear explanation of its role, and that role of the local authority, and that it was outside its power to nominate her, as the resident had understood. This would have helped manage the resident’s expectations as to the extent of the landlord’s role in her rehousing.
The landlord took the opportunity of the escalation of the complaint to undertake an investigation and to reconsider its own approach. It decided to award compensation in relation to the fence repair, and its communication, and it instructed its surveyor to consider the mould in the property. It exercised its discretion in that it not merely addressed the issue of the washing machine, even though it had not been raised in the resident’s initial complaint, but went to some trouble, for which it should be commended, to investigate and carry out works it was not obliged to, in order to facilitate installation of a washing machine.
It is clear from the landlord’s records that it evaluated its ASB policy and considered that it was prescriptive and confusing. It recognised the need to balance communication with managing residents’ expectations. It used the complaints procedure as an opportunity to learn and to improve its service. It stated it would adopt a more holistic approach, request better information from the local authority and introduce good neighbour agreements in the block. In its response, while the landlord could have explained its response to the ASB more fully, it accepted that the ASB should have been dealt with sooner. It also explained that the resident should report criminal behaviour to the police, and encouraged her to make reports to the landlord, as needed. However, while it used its complaint procedure to improve its service to the resident, it did not recognise its initial failures in relying on seeking a crime reference as a pre-requisite for dealing with reports of crime.

Determination (decision)

In accordance with paragraph 54 of the Scheme there was:-
1. Service failure in relation to the landlord’s handling of the resident’s reports of anti-social behaviour (ASB).
2. Reasonable redress in relation to the landlord’s handling of the resident’s request that the landlord repair a communal fence.
3. Service failure in relation to the landlord’s handling of the resident’s report of mould, including in relation to the installation of an extractor fan.
4. No maladministration in relation to the landlord’s response to the resident’s request for assistance with her move.
5. Service failure in relation to the landlord’s complaint handling.

Reasons

The landlord’s initial response did not comply with its own policy and procedures in relation to the resident’s reports of ASB. The landlord should have considered its own pro-active response to the reports of noise and drug use sooner. However, the resident chose not to engage. In the circumstances, the impact was less significant than it might have been. The landlord offered compensation in relation to poor communication, however the Housing Ombudsman has identified further failures.
There was some minor delay attributable to the landlord in providing a remedy for the fence. However, the delay was largely attributable to lockdown. The compensation offered by the landlord was appropriate.
There was some minor delay attributable to the landlord in providing a remedy for the mould. However, the delay was largely attributable to lockdown. The eventual response to the reports of mould were thoughtful and thorough.
The resident’s application for permanent housing was outside the remit of the landlord.
The landlord is commended in some respects for its use of the complaints procedure, however it did not recognise its failure to respond appropriately to the resident’s initial reports. While it has since recognised the delay to the final response, there was also a delay to the first response.

Orders

The Ombudsman orders the landlord to pay the resident a total amount of £500 within 28 days, to include the amount of £150 already offered, as follows:-
1. £250 in relation to the failures of the landlord identified in this report in respect of its initial responses to the resident’s reports of ASB, and in addition to the £50 compensation offered in relation to poor communication.
2. £50 in relation to the landlord’s delay in addressing the mould in the resident’s property.
3. £50 in relation to the landlord’s response to the resident’s complaint in addition to the £100 compensation offered in relation to the delay of the second response.

The landlord is to confirm compliance to the Housing Ombudsman service with the above orders within 28 days of this report.

Recommendations

The landlord provide the resident with a sincere and fuller written apology in relation to the failures identified.
The landlord should review its response to reports of criminality and ensure its staff receives relevant training in relation to its ASB procedure.
The landlord should implement the changes it identified and proposed during its complaints procedure including:
1. Adopting more holistic approach to the ASB reported at the property.
2. Speaking to the local authority about the need to carry out rigorous checks before placing individuals at the property.
3. Introducing the use of good neighbour agreements for residents in the block.
4. Improving the standards of communications and provide tailored responses to the resident.