Midland Heart Limited (201916194)

REPORT

COMPLAINT 201916194

Midland Heart Limited

31 March 2021 [amended 09 August 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 resident’s complaint is about the landlord’s response to her reports of ASB as well as the reports of ASB made against her.
2. This Service will also investigate the landlord’s complaints handling.

Background

3. The resident’s tenancy agreement prohibits her from threatening, harassing or causing a nuisance to residents, visitors and staff, and from leaving rubbish/ waste in or around her home or in communal areas.
4. Under its ASB policy, the landlord is obliged to undertake an initial risk assessment of a case before providing appropriate advice and assistance. It states it will record all cases of ASB and agree clear actions with residents on how it is going to be tackled. Methods of resolution include Good Neighbour Agreements, multi-agency partnerships and mediation. It will close cases in several instances, including where it has taken all available action to resolve the matter or where no evidence exists to prove that ASB occurred. 
5. Whilst no prescribed timescales for complaint responses are set out in the landlord’s complaints policy, it provides for timescales to be “appropriate to the case and communicated to the customer.”
6. According to its policy, financial compensation is considered as a final option where loss or suffering is considered to warrant such a payment or where significant inconvenience has been experienced. 

Summary of events

7. The resident emailed the landlord on 25 and 29 March 2020 making several allegations about one of her neighbours. This included allegations (including pet-related nuisance, noise, environmental and parking-related nuisance) and that her neighbours had acted in breach of then-current Government guidance in relation to the Covid-19 pandemic. There is no evidence that the landlord responded to these until May 2020; the landlord explained that the team which handles ASB cases did not receive the case until April.
8. In the meantime, the resident’s neighbour made several allegations of verbal abuse against the resident. The landlord interviewed the neighbour and issued a warning letter to the resident on 27 April 2020. It referred to several allegations which had been made against her, including that she had been verbally aggressive to other residents on more than one occasion and had also assaulted another resident. It confirmed that this was in breach of her tenancy agreement and asked that she follow an action plan until the landlord had discussed the matter with police, who “dealt with the assault.” The warning letter was accompanied by an action plan including further investigation and interviews.
9. The landlord interviewed the resident on 1 May 2020, carried out vulnerability and risk assessments, and provided information regarding its noise app, diary sheets, other relevant advice, and an updated action plan. In response, the resident made several counter-allegations against her neighbour.
10. The landlord wrote to both the resident and her neighbour on 5 May 2020 setting out the action it had taken and would take going forward, suggesting a referral for restorative justice, and providing diary sheets as well as information on its noise app. This included that the landlord had contacted the police in relation to an allegation of assault; the police confirmed it would take no further action. It advised the resident that the allegations of noise nuisance she had described did not meet the threshold for ASB. The action plan for the resident included that she would report any ASB to the landlord and not address it herself, as well as not shouting or raising her voice to other residents.
11. Following reports of environmental nuisance, the landlord wrote a letter to all residents at the scheme on 14 May 2020 asking them to refrain from leaving food out for birds as this may attract vermin.
12. The action plan agreed between the landlord and the resident was updated again on 20 May 2020. The resident raised concerns that only she had been written to regarding food being left out; the landlord confirmed that all residents had received this letter. 
13. On 26 May 2020 the landlord received a specific allegation that the resident had left food out and vermin had been sighted.
14. Further allegations were received on 10 June, and counter-allegations from the resident were received on 15 June. At this stage the landlord considered that it would be difficult to resolve the dispute if both parties declined to engage in restorative justice, though it was considering the use of a ‘good neighbour agreement’.
15. The landlord has provided two warning letters addressed to the resident dated 29 June and 7 July 2020 in relation to leaving food out and attracting vermin, asking her to stop doing so as it was a breach of her tenancy. It is not clear from the information provided whether both were issued or whether the former was an earlier draft of the latter.
16. The landlord sought the resident’s agreement to a ‘good neighbour agreement’ on 13 and 14 July 2020. The resident emailed the landlord on 21 July stating that the only outcome she would agree to was for the landlord to take legal action against her, which she considered would provide a forum for her to prove her neighbour’s allegations were false and that her allegations were not.
17. On 3 August the landlord issued warning letters to both the resident and her neighbour in relation to the “verbal altercations” which had taken place between the resident and her neighbour. The letter to the resident explained the case was now closed as she was unprepared to provide evidence of noise nuisance via the landlord’s noise app, had refused to engage in restorative justice. It advised the resident not to engage with her neighbour, stating it had advised her neighbour to do the same. It stated that it had also asked her neighbour to ensure when their friend takes their dog out, that it must be on a lead.
18. The resident contacted the landlord by telephone on 4 August 2020 to complain about the landlord’s handling of the case. The landlord emailed the resident after the call asking for evidence, and details of her dissatisfaction and required outcome. It chased the resident for a response on 7 August.
19. The resident wrote to the landlord on 12 August 2020 expressing her dissatisfaction with its handling of her ASB reports and the counter-allegations made against her. She stated that she had made reports of ASB against her neighbour one month before the landlord opened an ASB case against the resident, yet her own reports had not been actioned or even mentioned. She stated she had sent her complaint to one member of staff who later told her that she should have sent it elsewhere. The resident stated she felt the landlord had been biased against her, that no evidence of the ASB she was reported to have perpetrated had been shared with her, and that her neighbour continued to perpetrate ASB towards her.
20. On 18 August 2020, the landlord provided its stage one response. It stated that:
    1. The email sent to the member of staff (the subject matter of which is not set out) was missed as she had been absent from the office. The landlord apologised for this and confirmed that it would speak with the member of staff on her return to locate the email and respond accordingly.
    2. The resident’s concerns had in any event been addressed by another member of staff since this time. As concerns regarding the staff member were raised over 18 months ago, the landlord “would take on board what had been said but no action could be taken due to the time lapsed.” The staff member respected the resident’s wishes for her not to engage with her.
    3. The landlord had thus far acted in accordance with its ASB policy in its response to the resident’s reports and to the counter-allegations made against her. The reported ASB must be considered “persistent and excessive” for the landlord to take further action. It reiterated its suggestion of the use of a noise app in the first instance, before the use of noise monitoring equipment would be considered. In any event it was not currently able to install such equipment due to the pandemic restrictions in place.
    4. Whilst it could not confirm what action had been taken against her neighbour regarding her dog, it assured the resident that the issue had been addressed (the landlord has not provided evidence of this stated action to this Service).
    5. The resident had declined the Good Neighbour Agreement offered by the landlord as she had wanted it to be worded the same as the one drawn up for her neighbour. The landlord confirmed that it could not be worded the same as her circumstances were different to her neighbours and the wording would need to reflect this.
    6. It encouraged again the use of the Restorative Justice Service; and
    7. As there had been insufficient evidence of ASB and all solutions offered to resolve the issues had been declined, the landlord had no option but to close both the resident’s and her neighbour’s cases.
21. The resident requested escalation of her complaint on 23 August 2020. She stated that the landlord had not addressed her complaints and that the warning letter sent to her was “libellous.” She referred to the landlord’s policy of ASB having to be “persistent and excessive” for action to be taken and that, contrary to its own policy, the landlord had acted against her based on a single incident, one on which the police themselves had taken no further action. She stated she had not requested that the wording of the Good Neighbour Agreements be the same (as stated by the landlord) but just that she would like to see the wording of her neighbour’s agreement in the interests of transparency. She was unhappy with the way the landlord had responded throughout the ASB cases.
22. The landlord acknowledged the stage two complaint on 26 August 2020 and provided its stage two response on 15 September, in which it stated the following:
    1. It accepted that there was a delay in responding to the resident’s stage one complaint.
    2. It had requested she keep a record and log incidents as and when they occur, as well as make use of the noise app, to substantiate her allegations of ASB.
    3. Another option would be to provide noise monitoring equipment, but due to current pandemic restrictions, it was unable to provide this at that time. It signposted her to the local council which it stated may be able to provide the equipment.
    4. It accepted her request to escalate her complaint as it was “in full agreement that (she) should be provided with the Good Neighbour Agreement which should have the same actions for all parties to sign up to.” It apologised that this was not considered in its stage one response and confirmed it would be received by the end of the month:
    5. It strongly encouraged the resident to consider the Restorative Justice Service.
23. A final warning was sent to the resident on 7 October based on “aggressive and intrusive behaviour” which she displayed towards residents as well as landlord staff. It confirmed that the behaviour was unacceptable, in breach of her tenancy agreement and must cease immediately. It confirmed that legal action, including possibly action seeking possession of her property, would be instigated if the behaviours were to continue.
24. After further reports of ASB were made against the resident, a meeting was arranged between her and landlord staff on 17 November. The Ombudsman is unaware of the outcome of this meeting.
25. The resident remains dissatisfied with the landlord’s response to her reports of ASB and those made against her.

Assessment and findings

Response to ASB

26. The resident sent her initial reports of ASB in two emails to the email address given on the landlord’s public website, which was reasonable. The landlord has explained that the emails were forwarded to a ‘Lifestyle Change Manager’ but was referred to the ‘Tenancy Services Team’ following the escalation of the dispute in April 2020. The initial delay in responding to the resident’s reports of the problem was both avoidable and unreasonable and may have led to the neighbour dispute escalating unnecessarily. Given the timing of her neighbour’s allegations, it was also reasonable for the resident to be distressed by the fact that the landlord had not responded to her allegations of ASB, yet her neighbour’s allegations had resulted in a warning letter being issued to her. The landlord has sought to explain the delay, which was fair, but offered no apology for the delay, any acknowledgment of the effect to the resident of the delay and did not demonstrate any learning from the outcome or set out any steps it had taken or would take in future to ensure such a delay did not recur.
27. When the relevant team did receive the resident’s reports of ASB, it took appropriate action in accordance with its policy: contacting the resident, arranging an interview, completing a risk assessment, preparing an action plan including ongoing monitoring of the case, issuing tools for evidence gathering including diary sheets and the noise app, contacted the police, attempted to use restorative justice and good neighbour agreements.
28. In its correspondence with the resident, the landlord set out the definition of ASB noise as per its policy, as well as the details of the resident’s report of the same day. It confirmed that the reported noise did not meet the threshold for ASB and provided information about how this was considered. It was reasonable for the landlord to explain how noise nuisance is defined, which serves to manage expectations about what can or should be done in response to such reports.
29. As the landlord is obliged to take action/ investigate reports of ASB from the resident, it has a correlating duty to investigate reports against her. This it did appropriately in accordance with its policy. It may liaise with the police as part of its ASB case management, but its considerations are different to those of the police as it must look at its obligations as a housing provider as opposed to considerations of criminal law. It was therefore appropriate that the ASB case against the resident remained open even if the police took no further criminal action against her. There is no evidence to suggest that the landlord was biased against the resident; based on the evidence provided the landlord took reasonable and proportionate action regarding both parties to the neighbour dispute in accordance with its policy.
30. Overall, whilst the landlord did take some action in accordance with its policy, its failure to respond to the resident’s initial report in a reasonable time indicates a level of service failure requiring improvement.

Complaints handling

31. The earliest evidence of a formal complaint being made is an email the landlord sent to the resident following a telephone call on 4 August 2020. The landlord acknowledged the complaint by email that day and sought more information from the resident, chasing three days later as appropriate as it sought to resolve the complaint within policy timescale. It received details on 12 August, and it responded on 18 August within the 10-working day timescale set out in its complaints policy. It acknowledged the resident’s 23 August stage two complaint within a reasonable time and responded to it on 15 September within the 20-working day timescale set out in its complaints policy.

Determination (decision)

32. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in the landlord’s response to the ASB reports.
33. In accordance with paragraph 54 of the Scheme, there was no maladministration in the landlord’s complaints handling.

Reasons

34. Service failure is found in relation to the landlord’s response to the ASB reports as it failed to respond to the resident’s initial reports of ASB within a reasonable time and did not apologise or identify any learning from this failure.
35. The landlord responded to the resident’s formal complaint within the timescales set out in its policy.

Orders and recommendations

Orders

36. The landlord is to pay £50 to the resident in redress for its failure to respond to her initial reports of ASB.
37. The landlord is to confirm compliance with the above order within four weeks from the date of this report.

Recommendations

38. It is recommended that the landlord review its ASB processes to ensure that reports of ASB are directed to appropriate staff and responded to within the timescales set out in its policies and procedures.