Community Gateway Association Limited (201904880)

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REPORT

COMPLAINT 201904880

Community Gateway Association Limited

23 February 2022

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 the landlord’s response to the resident’s reports of antisocial behaviour (ASB):
1. between 2010 and February 2019.
2. from February 2019 to September 2019.

The Ombudsman has also investigated the landlord’s complaint handling.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 39(e) of the Housing Ombudsman Scheme, complaint 1(a) falls outside of the Ombudsman’s jurisdiction. In communication with this Service, the resident has advised that she has had concerns about ASB on behalf of her neighbour since approximately 2010.
Paragraph 39(e) of the Scheme states, “the Ombudsman will not investigate complaints, which, in the Ombudsman’s opinion were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within six months of the matters arising”.
It is acknowledged that in 2019 the landlord declined to deal with the resident’s concerns through its complaints process; and this has been addressed within the investigation below. However, as the events that the resident has complained of date back several years, and the issues are historic, it is difficult for the Ombudsman to conduct an effective review of the actions taken by the landlord. Therefore, the Ombudsman has not investigated the landlord’s actions prior to 2019; but has investigated issues in the six months leading up to the resident’s first contact with the Ombudsman in July 2019. The scope of the Ombudsman’s investigation therefore covers the period of February 2019 to September 2019.

Background and summary of events

The resident is a tenant of the landlord’s property. The resident has advised that she suffers from chronic pain and mobility issues.
In July 2019, the resident contacted the Ombudsman as she was unhappy with how the landlord had responded to issues that she had raised about her neighbour, a private resident (the alleged perpetrator). This Service made enquiries with the landlord and the resident to try to establish whether the landlord’s complaints procedure had been exhausted. Meanwhile, communication between the landlord and the resident continued via email and on 2 September 2019, the landlord wrote to the resident to address her concerns. It said:
1. The resident had previously been informed that neighbour disputes were not dealt with via the complaints procedure, and would be dealt with via the Tenancy Management Team (the team). It had forwarded the resident’s concerns to the team.
2. It was aware that the Tenancy Management Team Leader (team leader) had been involved with the case previously and on 29 August had asked the resident to provide a copy of a video which had been previously sent in accessible format. The resident had refused on the basis of previous dealings with the team leader.
3. The resident had requested contact via another member of the team, and it could confirm that the co-ordinator for the team would be in touch accordingly to discuss how the resident wished to proceed.
4. The team would be responsible for investigating matters raised with it; and therefore the team leader’s previous involvement was not something that would be considered under the complaints procedure.
5. For the team to work effectively in dealing with reported nuisance and anti-social behaviour, it required evidence and on-going co-operation. The resident had failed to provide the team with the “required level of evidence or to demonstrate the sufficient level of engagement to progress the historical reported nuisance”.
6. It had made “considerable efforts” to obtain the resident’s version of events as part of the investigation into a number of counter allegations made against her; however, she had refused to engage.
7. On 25 August 2017, it became concerned for the resident’s safety and wellbeing following conversations with members of staff. After “careful consideration” it decided it would be appropriate and proportionate to make contact with the resident’s doctor to share its concerns. The ability to take such action was essential, and such referrals would not be considered under the complaints procedure as staff should be able to exercise their duty of care towards residents without fear of reprisal.
8. In response to the resident’s concerns about a lack of support, the team had worked – and continue to work – with the Police in a bid to resolve the ongoing dispute between the resident and her neighbour. Contact details for the team were provided, together with a leaflet for a new “Tenant Support and Wellbeing Service” that it was offering to all residents.
The resident forwarded the landlord’s response to the Ombudsman on 12 September and raised a number of concerns. She said:
1. The complaints procedure had not been provided by the landlord despite numerous requests.
2. She had previously made a complaint about the team leader and he had recently threatened her tenancy when investigating “unsubstantiated allegations” that had been made by her neighbour. Her then recent evidence had been forwarded to the same team leader, and she would not allow herself to be “further victimised” by him.
3. The landlord had never responded to the numerous police referrals that had been made on her behalf. However, when her neighbour had made an allegation against her, the team leader visited her home – together with a police officer.
4. On 25 August 2017, she had contacted a named member of staff at the landlord and “begged” her for support. In response, the member of staff felt it fit to contact her doctor. The resident said that she felt this incident further demonstrated that no practical support had been offered by the landlord.
5. She felt that her recently complaints to the landlord had been ignored. She had also attempted to get a copy of a form which she had completed. However, she was yet to receive that.
6. She suffers from chronic pain and mobility issues – which the landlord was aware of – and these increased her vulnerability.
In addition to her comments on the landlord’s correspondence, the resident also provided the Ombudsman with a series of emails that she had sent landlord staff over a series of dates in August and September 2019.
On 18 September, the resident contacted the Ombudsman again to express concern that the landlord was not dealing with her case. The resident advised that she wished for the landlord to fence the boundary line between her and her neighbour, and she wished for the front gate to be fenced. The resident added that the rear garden had no drainage as a result of a drive the neighbour had built; and that the landlord had not responded to a police report following an incident in August.
The Ombudsman subsequently discussed the complaint with the landlord, and it advised:
1. The resident already had a metal gate which was deemed to be in good condition. It would not be installing fencing, in line with its policy.
2. The rear drainage was not an issue for it to investigate.
3. The police had not been in touch. However, any police matter would be for it to investigate.
Meanwhile, communication between the landlord and the resident had continued. On 18 September, the landlord informed the resident that it would encourage her to engage with the police and other agencies to try to investigate her concerns. It provided a link for the resident to access, which it felt may assist the resident. The landlord also queried whether it could meet with the resident her concerns and the recent allegations against her neighbour. It added that during this visit, it would not be able to discuss any land or boundary queries. Following further communication, the complaint was closed, and the resident asked the landlord to leave the matter to this Service for consideration.
Following further discussion between the resident and the landlord in 2020, the landlord confirmed to this Service that its letter of 2 September 2019 was its final response at the time. However, given the time that had passed, it would contact the resident to establish if there were any issues that it could assist with.
In May 2021, the resident subsequently clarified that following our involvement in 2019, the landlord had defined the boundary line between her property and her neighbour’s. However, the ASB on behalf of her neighbour continued to be an issue. This included displays of harassment, stalking, intimidation, physical abuse, personal property damage and trespass.
We subsequently contacted the landlord in June 2021 to request clarification and an update regarding the resident’s complaint. In response, the landlord advised that the position had changed since it issued its letter in September 2019. It said:
1. The resident had been liaising with other agencies, and this had resulted in it being able to communicate with her in a more positive way.
2. In May 2021, the resident had agreed for the Outreach and Support Team to work with her to help her manage her tenancy and support her when reporting issues such as responsive repairs. This appeared to be going well, and the relationship between both parties had been improved.
3. There were no longer any perceived neighbour disputes. The resident had also agreed to work with the landlord in relation to scrutiny reviews to provide insight and opinion on how it may communicate to help those tenants who may suffer from mental and physical health issues to enable it to change or adapt policies and procedure to better meet the diverse needs of its residents.
Meanwhile, on 14 June, the resident contacted the Ombudsman to advise that while the issues with her neighbour had “quietened down”, she did not believe that the landlord had handled her reports of ASB appropriately. The resident added that she was of the opinion that the landlord only acknowledged her concerns after her support workers raised safeguarding concerns.
The Ombudsman engaged in further discussion with the landlord and it advised that the resident’s concerns had not been through the complaints process, as she had not engaged with the tenancy management team. While the team had dealt with the resident’s concerns about ASB before, there had not been any involvement from it “for some time”. It was subsequently agreed that the Ombudsman would treat the landlord’s letter of 12 September 2019 as its final response regarding the resident’s concerns.

Landlord policies and procedures

The landlord’s ASB policy states – “we consider ASB to be deliberate and intentional acts including the failure to address inconsiderate behaviour that may result in nuisance, harassment, alarm and distress”.
With regards to investigating and tackling ASB, the policy states – “following individual assessment of each antisocial behaviour report, we will take appropriate action as a Registered Provider in relation to all parties involved including working jointly with other agencies”. It adds, “the speed and success of any action is dependent upon the co-operation and involvement of all parties. We believe that reporters, victims and witnesses all play a part in tackling ASB.”
The landlord’s complaints procedure defines a complaint as “an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the organisation, its own staff, or those acting on its behalf, affecting an individual resident or group of residents”.
The complaints procedure states that there are some circumstances where it will not accept a formal complaint. This includes “reports of antisocial behaviour”. The procedure states that these will be referred to the Tenancy Management Team.

Assessment and findings

It is acknowledged that the issues that the resident has raised concerns about date back to 2010, and that there have been many instances of behaviour and perceived behaviour which have been the cause of distress to her, and resulted in the resident making contact with this Service in 2019. While the Ombudsman does acknowledge the impact that the ASB has had on the resident, our role when investigating complaints about ASB, is to determine whether the landlord followed its policy and procedure, as detailed above, when responding to the resident’s reports.
The Ombudsman has been provided with a copy of the landlord’s ASB records. This includes reports that had been made by the resident, and also counter-allegations that had been made. The resident has also provided the Ombudsman with evidence, including emails to the landlord detailing instances of ASB on behalf of the alleged perpetrator.
It is noted that at the beginning of 2019, the landlord and the resident had been in discussion about an allegation that had been made by the alleged perpetrator. The resident had informed the landlord that she would not be answering “unsubstantiated claims”, and that the alleged perpetrator had in fact created flooding issues as his driveway lacked any drainage. Further correspondence was exchanged, and on 13 March, the team leader informed the resident that in order to assist further with her concerns about the lack of drainage, it would be necessary to discuss “all the issues relating to the ongoing neighbour dispute”. He added that if the resident wished to do this, it could arrange an appointment accordingly.
It is not clear what transpired following this from the evidence that has been provided. However, it was not inappropriate for the landlord to seek to discuss all of the issues relating to the ongoing dispute. While it is acknowledged that the resident refuted the allegations which had been made, the landlord was obliged to investigate the reports further and to try to establish what had transpired.
The evidence for May 2019 includes an allegation which the landlord had received from the alleged perpetrator. The landlord informed the resident of the allegation, and advised that it wished to speak with her to obtain further information. The resident was unhappy with the landlord’s actions and advised that she would not meet with the landlord to discuss the matter further. It is noted that the resident felt that the landlord had “taken his side”. However, the correspondence from the landlord to the resident does not suggest that any conclusions had been reached. Rather, the landlord had been in receipt of an allegation made against one of its residents, and it was therefore obliged to look into the matter further.
On 27 June, the resident contacted the landlord as she had come to learn that her access to the ginel running behind her property and neighbouring properties had been blocked by the alleged perpetrator. The resident said that the alleged perpetrator had been using pieces of wood to “jam” the handle of her gate. In response, the landlord advised that it did not own the ginel and therefore the resident would have to contact the local council.
The landlord’s response on this occasion was not entirely appropriate. While it is noted that it did not own the land behind the property, the resident had expressed concern that her neighbour was jamming her gate and preventing her from exiting via it. It follows that the issue did not just relate to access – but rather alleged behaviour that was causing a nuisance. As such, it would have been reasonable for the landlord to ask the resident if she could provide evidence of the alleged perpetrator jamming the gate, so that it could consider the matter further. That the landlord did not provide such advice was a shortcoming in the circumstances.
At the beginning of July, a further report was made by the alleged perpetrator. This related to allegations that the resident had been causing damage to his hedge and garage. The landlord concluded that it could not monitor whether the resident and the alleged perpetrator were “damaging each other’s property”; It was also noted at the time that there was no evidence of the resident’s gate being jammed with wood. A letter was sent to both individuals advising that it could not take any action in response to the allegations that had been made by either party.
The response by the landlord was overall appropriate. While it is noted that the resident disagreed with the landlord’s conclusions, and that she felt that she was being treated unfairly, there was insufficient evidence for the landlord to consider the allegations further; and it was appropriate for the landlord to advise both parties of this.
On 28 August, the resident emailed the landlord to report a further incident. The resident advised that CCTV of the incident had been attached to her email, and that she was particularly concerned about what had transpired. The resident said that on the morning of 26 August, the alleged perpetrator had destroyed the boundary between the properties and had entered her garden while carrying a Stanley knife – which he had used to destroy the boundary. The resident said that the alleged perpetrator then stood by her window playing with the knife – and this included “licking the blade” and making “motions of cutting his throat”. The resident said that the CCTV did not cover her window area, but did show that the alleged perpetrator did disappear from the footage for approximately a minute. The resident added that the police had seen the footage, and visited the alleged perpetrator on the same day.
The landlord acknowledged the resident’s email and on 29 August asked if the CCTV footage could be re-sent as it was unable to view it. As detailed above, the resident declined to re-send the footage as she was not willing to liaise with the team leader. Nevertheless, the resident subsequently complained about what she considered to be inaction on behalf of the landlord.
On 12 September, the landlord confirmed that it had received the resident’s complaint. However, it wished to clarify whether she had contacted the police and if so, what the outcome had been. The landlord advised that as the resident’s neighbour was not a tenant, it was limited in any action that it could take. In response, the resident advised that she was aware that the alleged perpetrator was not a tenant, and that the landlord would have to contact the police itself.
On 18 September, the landlord’s team leader advised the resident that her email had been added to her case. The landlord encouraged the resident to speak with the police and other agencies in relation to the ongoing dispute. The landlord added that if the resident believed that her safety was at risk, then it would be necessary to contact the police in the first instance. The team leader added that he had hoped to visit the resident to discuss her allegations further; however, he could not comment on any boundary dispute issues. The resident responded on the same day and expressed disappointment at what she considered was the landlord employing “avoidance techniques”. The resident added that they should leave the matter to the Ombudsman.
The landlord’s response to the resident’s report was appropriate. The landlord had advised that it had been unable to view the CCTV footage and appropriately requested for it to be re-sent. Without viewing the footage – or being provided with any other corroborating evidence – it was not possible for the landlord to investigate the resident’s allegation further. In addition, the landlord appropriately advised the resident that she should contact the police if she feared for her safety. In instances where harm was feared, the police would be the appropriate body to contact as it could respond with immediacy and take action as necessary.
It is acknowledged that the resident was disappointed with the landlord’s response in relation to the constraints on any action it could take. However, it was appropriate for the landlord to advise the resident as such, and to emphasise that the police was the appropriate body in relation to that particular allegation. As the landlord had informed the resident, the alleged perpetrator was a private resident – and as such, there is no contractual relationship between him and the landlord. It follows that the landlord cannot utilise the measures set out in its policy and in relevant ASB regulations – as it would with its own tenants. For example, the landlord cannot send the alleged perpetrator a warning letter advising that ASB is prohibited under the tenancy agreement, nor can it inform the alleged perpetrator that it may take enforcement action – such as eviction proceedings – if the ASB persists.
It is noted that the above are only a small selection of the total number of incidents that have been of concern to the resident. As detailed above, in June 2019, it would have been reasonable for the landlord to request further evidence from the resident in relation to her allegation that her gate had been jammed shut so that this could be investigated further. However, from the evidence that is available, the landlord’s response to the resident’s report of instances of ASB between February 2019 and September 2019 were overall appropriate.
While the landlord’s handling of the ASB was overall appropriate, the landlord’s handling of the resident’s request to make a complaint was not. As detailed above, the landlord had informed the resident that any complaints about the ASB would have to be dealt with by the Tenancy Management Team – and not through the complaints procedure. This was inappropriate.
The landlord’s procedure states that a complaint is an expression of dissatisfaction about the standard of service, actions or lack of action by the organisation, its own staff, or those acting on its behalf, affecting an individual resident or group of residents. While it is acknowledged that the resident’s concerns about the alleged perpetrator could not be considered through the complaints procedure, she had expressed dissatisfaction with the landlord’s handling of her reports of ASB. As such, it would have been appropriate for the landlord to consider these through its formal complaints process.
If the landlord had handled the resident’s concerns as a formal complaint, it would have had the opportunity to list the ASB cases which it had opened, what action it had taken – if any, and it could have commented on whether the Tenancy Management Team’s actions were in line with its ASB policy. That the landlord did not consider the resident’s concerns as a formal complaint was a significant failing, and denied her the opportunity to have her concerns about the handling of her ASB cases investigated. The evidence shows that the landlord’s decision was also the cause of both confusion and distress for the resident at the time. The landlord should therefore take action now to put things right.

Determination (decision)

In accordance with paragraph 54 of the Scheme, there was:
1. No maladministration in the landlord’s response to the resident’s reports of ASB between February and September 2019.
2. Maladministration in the landlord’s complaint handling.

Reasons

The landlord’s handling of the resident’s ASB reports between February and September 2019 was overall appropriate. It would have been reasonable for the landlord to request further evidence from the resident in response to her report that the alleged perpetrator had intentionally jammed her gate. That the landlord did not do so was a shortcoming in its handling of the resident’s ASB reports.
The landlord failed to consider the resident’s concerns about the handling of her ASB reports as a formal complaint. This was a significant failing by the landlord, and a missed opportunity to engage with the resident and explain how it had considered her reports about the alleged perpetrator.

Orders

Within four weeks of the date of this determination, the landlord should:
1. Apologise to the resident for the shortcoming identified in the handling of her ASB reports.
2. Apologise to the resident for the failure to consider her concerns about the handling of her ASB cases as a formal complaint.
3. Pay the resident £250 compensation for the inconvenience caused by declining to consider concerns about its ASB handling through the formal complaints procedure.
4. Contact the resident to ask if she wishes to make a complaint about its handling of any ASB reports made within the last six months. If the resident does wish to make a complaint, the landlord should obtain full details of the complaint and investigate it in line with its procedure.

Recommendations

Within six weeks of the date of this report, the landlord should review its complaints procedure and remind staff of the process for considering complaints about the handling of ASB cases.