The Guinness Partnership Limited (202114388)

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REPORT

COMPLAINT 202114388

The Guinness Partnership Limited

21 June 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

  1. The complaint is about the landlord’s response to the resident’s reports of anti-social behaviour (ASB).

Background

  1. The resident is a secure tenant of the landlord. The resident lives in a house with a driveway which is shared with the property next door. The complaint was raised by the resident and his partner. For clarity, this report will refer to both the resident and his partner as ‘the resident’.
  2. From the evidence provided, it is clear that the ASB has been an ongoing concern for the resident since late 2018. However, it is unclear from the information provided to the Ombudsman when certain ASB incidents occurred or in what order the events occurred.
  3. On 7 September 2021, the resident made a complaint to the landlord regarding incidents of ASB. The resident stated that ASB issues had been occurring for nearly four years. The resident stated that his neighbour had been:
    1. Hurling abuse at him and his family;
    2. Creating noise nuisance such as screaming down the shared driveway, slamming doors, revving his motorbike at unsociable hours; 
    3. Throwing dog faeces in the garden – which was caught on the resident’s CCTV;
    4. Blocking the shared driveway by parking an 8.5 tonne lorry on it and the neighbour and his visitors blocking the driveway; and
    5. Running a business from his property, in breach of the tenancy agreement.
  4. The resident stated his family have health conditions which have been impacted by the issues with the neighbour. The resident felt that the landlord did not take this into consideration. The resident informed the landlord that he had reported his neighbour to the police, but there was nothing they could do. The resident did not agree that there was no evidence to do anything in regard to the neighbour, as he had provided CCTV, videos and pictures of the incidents. The resident also raised that the ASB cases were being closed without his permission or knowledge. The resident said he had not received communication from the landlord, and despite emailing and calling, he was never responded to.
  5. On 15 November 2021, the resident issued its stage two complaint response. It stated that it had investigated the ASB and the allegations of a business being run from the property. It stated that mediation had been offered to both parties, but his neighbour had refused to participate. The landlord had sent copies of CCTV to its solicitor, and was advised that there was not enough evidence to be able to ‘even serve a pre-legal and certainly not enough for an injunction’. The landlord stated that the police had greater legal power than itself, and the resident had reported it to the police on ‘twenty-four separate occasions and the police do not have enough evidence to take action’. It stated it had investigated if the neighbour was running a business from his property but had been informed that the address had been used for correspondence only in relation to the neighbour’s business.
  6. On 11 January 2021, the resident referred this matter to this Service. The resident felt that the landlord had not offered a solution to the ASB, he disagreed that the CCTV footage was not enough evidence of ASB and disputed that his neighbour was only using his address for business correspondence purposes rather than to run his business.

Assessment and findings

Policies and Procedures

  1. The landlord’s ASB policy states that it aims to resolve cases promptly using a full range of methods and legal powers available to it. This means taking reasonable, timely and proportionate action appropriate. It may include referral to a mediation service; working in partnership with other agencies to prevent and tackle anti-social behaviour and provide appropriate support to victims and witnesses.
  2. It also states that it will take proportionate and timely action to deal with ASB. The action will be proportionate to the severity, impact and frequency of the ASB and the evidence available to support the case. In most cases, legal action is not required however it will take legal action if it is appropriate to do so.
  3. It will also work with the complainant and the alleged perpetrator where possible, to agree a plan to tackle the ASB. This will set out the actions it will take to stop the ASB. Where it is appropriate to do so, it will use mediation to try and resolve the ASB before it escalates. Where mediation and reasonable requests to stop the ASB fail, it may decide to take additional action to resolve the behaviour. In serious cases this may include taking legal action.
  4. It will close an ASB case when the behaviour has improved to an acceptable level; when there is no further reasonable action that it can take to resolve the matter; or at the request of the customer reporting the ASB. It will seek to discuss its intention to close the case with the resident. The landlord will only consider re-opening an ASB case if it is appropriate to do so.

Scope of investigation

  1. The resident has stated that the ASB has caused stress, anxiety and health concerns, for which the resident and his family sought medical attention. The Ombudsman does not doubt the residents comments about his and his family’s health, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. However, we have considered the general distress and inconvenience that the landlord’s handling of the incidents of the ASB caused the resident.

Assessment

  1. It is evident that the situation with his neighbour has been distressing for the resident and this has been considered as part of our investigation. However, it is important to be aware that it is outside the role of the Ombudsman to establish whether the ASB reported was occurring or not. Rather, our role is to establish whether the landlord’s response to the resident’s reports of ASB was in line with its legal and policy obligations and whether its response was fair in all the circumstances of the case. The landlord is not responsible for the neighbour’s actions and no action which a landlord could take, with the possible exception of eviction, could be guaranteed to prevent someone from engaging in ASB. Therefore, the landlord would not be expected to compensate the resident for distress and inconvenience caused by the neighbour’s actions and the landlord would only be expected to pay compensation for any distress and inconvenience caused by its own errors.
  2. In this case there has been a failing regarding the landlord’s record keeping which has affected both the landlord and this Service’s investigation of the resident’s complaint. The landlord has not kept comprehensive records of when ASB was occurring, the type of ASB occurring or the actions it has taken to resolve the ASB. This has impacted this Service’s investigation as it has been difficult to establish when events occurred and the actions the landlord took in relation to those incidents. In the absence of clear evidence, we can only conclude that the landlord did not take appropriate action following the resident’s ASB reports.
  3. It is also clear from the complaint responses that the landlord had poor record keeping. The landlord did not meaningfully engage with the resident’s complaint and did not provide detailed responses to all of the issues raised. The landlord did not address some of the concerns the resident raised such as the repeated phone calls to the landlord, the lack of communication and the noise nuisance. The incomplete responses from the landlord would have inevitably caused the resident distress and inconvenience and could have led to the resident feeling that ‘nobody wanted to take action’. This can be directly linked to the poor record keeping, as it is evident that the landlord could not provide a sufficiently detailed response as it simply did not have the information recorded.
  4. The resident reported that multiple ASB issues including; noise nuisance, verbal abuse and items being thrown in his garden. When receiving reports of ASB, the landlord’s is expected to carry out an investigation into the reports. This should include speaking to both parties to gather a version of events, speaking to any witnesses and reviewing any available evidence such as CCTV footage, police updates and noise recordings. Due to the lack of records provided, it is unclear if the landlord did any of these actions upon receiving the resident’s reports of ASB.
  5. In line with its ASB policy, the landlord should have taken action to support the resident with gathering evidence of the ASB such as asking the resident complete diary entries and/or download a noise recording phone app. The landlord could also have suggested that the resident contact the local authority’s environmental health department for further support regarding noise nuisance. Environmental health have different powers to the landlord and can take action against perpetrators of noise nuisance such as issuing noise abatement notices.
  6. From the evidence provided, it does not appear that the landlord requested for the resident to complete any of these actions, at any stage. This was not in-line with good practice, as the landlord should have attempted to obtain as much information as possible, so it could resolve the ASB and take appropriate action against the offending party.
  7. The landlord’s ASB policy states that, where it is appropriate to do so, it will use mediation to try and resolve the ASB before it escalates. In evidence provided to this Service, the landlord did offer mediation to both parties involved to try and resolve the ASB. However, the neighbour refused to take part. It is both parties right to refuse mediation and this Service does not question either parties’ reasons of refusal. However, the landlord acted in-line with its policy to offer mediation and therefore, this was reasonable action to take, although it does not detract from the landlord’s overall failure to act in line with its ASB policy in its handling of the resident’s reports.
  8. The resident provided CCTV evidence of the neighbour throwing dog faeces into the garden. The landlord stated that this was not enough evidence to support any legal action. The Ombudsman notes that the landlord sought legal advice and acted in line with this advice when it explained to the resident that it would not pursue legal action as it was unlikely to succeed. It was appropriate for the landlord to act on advice from its appointed legal representatives and the Ombudsman would not expect the landlord to pursue eviction or an injunction against this advice.
  9.  However, the landlord could have done more to explain to the resident why the CCTV footage was not enough to proceed with legal action and did not discuss the steps that itself and the resident could take to gather more conclusive evidence. Although it may have been reasonable for the landlord to conclude that legal action would be unlikely to succeed it could have pursued informal measures such as issuing a tenancy warning or acceptable behaviour contract to the neighbour in an effort to resolve the situation. The landlord failed to create a plan to tackle the ASB, contrary to its policy which states that it will work with residents to agree a plan to tackle the ASB.
  10. It is good practice that when the landlord receives reports of shared driveways being blocked by one of the residents it should complete an investigation into the report such as; site visits, request photos and/or videos of the blocked driveway and then take the appropriate action such as tenancy warning letters. In this case, two tenancy warning letters were issued to the neighbour regarding the issue of parking. Issuing tenancy warning letters was appropriate and reasonable to do as it can be successful in resolving ASB in some cases. Also, except in the most extreme cases landlords are expected to attempt to resolve ASB informally before pursuing legal action.
  11. In regard to the resident’s claim the neighbour is running a business from his property, the landlord is typically expected to complete an investigation into reports of suspected breaches of tenancy such as this, but it would not be appropriate to share the details of this investigation with other residents due to privacy and confidentiality. It is important to note that the resident’s claims, which if confirmed would constitute a tenancy breach, would not be considered under the landlord’s ASB policy. This is because a tenant running a business from his property would not in itself significantly affect other residents, (although other residents may be affected by activities related to the running of a business such as noise or parking issues). The landlord has provided this Service evidence that it has investigated the allegations and the Ombudsman is satisfied with how the landlord dealt with the reports. In the same way as the landlord, we cannot share details of the investigation with the resident due to confidentiality. 
  12. The resident also believed that his neighbour was involved in damaging his car. vandalism would be a criminal matter which the police would be best placed to investigate in the first instance. As there was insufficient evidence to show that the neighbour was responsible for causing the damage, the police and the landlord could not take further action following this incident.
  13. Although it was reasonable for the landlord to follow the police’s lead on some occasions, the landlord should not always rely on the resident reporting matters to the police. Some of the actions described are not crimes and would not be best suited for legal proceedings, but could be dealt with by the landlord through its ASB process. The landlord should also not rely upon the fact that if the police could not act, then itself could not act. ASB does not have to have a criminal intent to be anti-social, some of the actions described could have been appropriately dealt with by the landlord even though they did not meet the criminal standard of proof required for the police to take further action.
  14. The landlord’s ASB policy states that before closing ASB cases it will aim to contact the resident and inform them of this decision. It is important to note that the policy also states that, the landlord may have to close a case due to lack of evidence. In this case, the landlord’s poor record keeping meant that this Service cannot accurately state if there was a lack of evidence, as we have not been provided with enough information to show this either way. However, even if there was a lack of evidence, the landlord should have contacted the resident to discuss if the ASB was ongoing, and if so the next actions to take. The landlord should not have closed the case without confirming this with the resident.
  15. The landlord should contact the resident to discuss any continuing issues he faces in regards to the ASB. Subsequent to that discussion, the landlord and resident should agree on a plan to tackle the ASB and how to gather evidence. The landlord should inform the resident on the next steps that it and he need to take, to resolve the matter.
  16. The landlord should pay £500 compensation to the resident for the distress and inconvenience caused by errors in its handling of the ASB. This is in line with the Ombudsman’s remedies guidance (published on our website) which suggests that the Ombudsman may award compensation of between £250 to £700 for instances of where we have found considerable service failure or maladministration by the landlord, but there may be no permanent impact on the complainant. Examples could include:
    1. A complainant repeatedly having to chase responses and seek correction of mistakes, necessitating unreasonable level of involvement by that complainant; and
    2. Failure over a considerable period of time to act in accordance with policy – for example to address repairs.

Determination

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in way the landlord the responded to the resident’s reports of anti-social behaviour (ASB).

Orders

  1. The Ombudsman orders the landlord to:
    1. Pay the resident £500 compensation for the distress and inconvenience caused by its failures in dealing with the resident’s reports of ASB.
    2. Contact the resident and review the current situation regarding the ASB. If the ASB is continuing, the landlord should agree an action plan with the resident setting out the next steps for addressing the ASB.
  2. These actions should be completed within four weeks from the date of this decision.

Recommendation

  1. To reduce the likelihood of a similar situation occurring in the future, it is recommended that the landlord carry out a review of its record keeping practices for ASB, ensuring that detailed and accurate records are kept of any ASB incidents and that this information can be accessed by staff investigating complaints and can be provided to the Ombudsman upon request.