The Guinness Partnership Limited (202015412)

REPORT

COMPLAINT 202015412

The Guinness Partnership Limited

25 April 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

This complaint is about:
1. The process which led to the creation of the communal garden in 2015;
2. The landlord’s response to the resident’s reports of anti-social behaviour (ASB) linked to the communal garden;
3. 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 of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.
1. The process which led to the creation of the communal garden in 2015.
Paragraph 39(e) of the Scheme says 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 6 months of the matters arising”.
The resident has raised concerns about the process which led to the creation of the communal garden. He has said the landlord failed to follow the required legal planning and consultation process, or to conduct risk assessments. The landlord has said it does not hold any evidence relating to the planning, consultation, or risk assessment process.
While the garden was in communal use from around 2015, the below timeline shows the resident began to raise these concerns around March 2021. Elsewhere, he said he only recently became aware of the landlord’s obligations. Given the above, the evidence shows this aspect of the complaint is outside of the Ombudsman’s jurisdiction.

Background and summary of events

Background

The resident is an assured tenant, and the tenancy began on 21 January 2008. The property is a one-bedroom ground floor flat in a block. The property backs onto a communal garden (the garden).
The garden is accessed through a gate attached to the property’s bedroom wall. The resident told the Ombudsman he was often disturbed by the gate moving on its hinges or slamming shut. He provided video footage of various incidents in the garden including a moped revving, people smoking, loud conversations late at night and items being thrown at the property.
The resident has vulnerabilities relating to his physical and mental health. He provided medical evidence showing he has a mobility disability and asthma, which has been clinically described as “difficult to control”. It shows the condition poses “a high risk of acute illness and hospitalisation when he is exposed to tobacco smoke and similar irritants”. The property has windows which open into the garden.
The landlord’s ASB policy confirms it will take proportionate and timely action to deal with ASB. In deciding a course of action, factors such as the severity, impact and frequency will be considered, along with the available supporting evidence. The landlord will take legal action when appropriate and refer to support agencies as required. The policy confirms rubbish dumping is considered ASB and hate crimes, if proven, “carry a heavier sentence” than instances of ASB.
All reports of ASB will be acknowledged in two working days. The landlord will complete a risk assessment to determine the level of harm caused by an incident. Assessment will take place when a matter is reported. Risk assessments should consider whether the person reporting is vulnerable or needs support. Completing a risk assessment helps the landlord determine how to prioritise ASB cases. The complainant will be updated at regular intervals about the action being taken.
The landlord’s estate management policy shows it will take action to prevent ASB occurring in areas where it is a major problem. Action will be taken with a view to minimising the frequency and impact of ASB. The landlord will take swift action to remove evidence of ASB such as vandalism or graffiti.
The community trigger process enables a victim of persistent ASB to request a review of their complaints to determine what remedial action should be taken. Relevant bodies in a local authority area, such as the police, council and NHS, must take a joined up problem-solving approach to find a solution for the victim. These bodies set the threshold at which the process is activated.
The landlord operates a two-stage complaints policy. Its complaints policy, effective from 26 July 2021, shows it will respond to complaints within ten working days at stage one. It will respond within 20 working days at stage two. At both stages, a further ten working days is available providing any delay is explained to the resident in an update. Complaints will be acknowledged within two working days at both stages.

Summary of events

From the resident’s later correspondence, he reported broken glass was scattered in the garden on 2 November 2020. He said it was debris from a bottle thrown at the property by a drug user. His correspondence suggests the landlord opened an ASB case in relation to the incident. The landlord has not disputed any timeline provided by the resident.
The resident’s timeline shows he reported a stolen bike was being stored in the garden by another resident on 7 November 2020. He said his sleep was being disturbed by people entering the garden to retrieve the bike. The timeline shows the resident reported the incident to the police.
It also shows he received an acknowledgement from the landlord on
11 November 2020. The acknowledgement was quoted as saying the landlord’s relevant team would contact the resident within two working days about the bike. The timeline shows the resident logged a “service failure” with the landlord on
17 November 2020 because he wasn’t contacted.
It shows the resident spoke to the other resident about the noise disturbance on 18 November 2020. Further, the landlord sent a letter to all residents about the bike around this time.
The resident’s timeline shows he told the landlord the glass remained uncollected on 7 December 2020. Further, the issue was raised with the landlord’s local leadership team.
On 31 December 2020 the landlord conducted a routine inspection of the block and its external areas. The inspection report shows potentially hazardous items were found dumped in the garden and removal was required. The report included an image of a black BMX style bike, but it did not mention broken glass or other issues.
From the resident’s later correspondence, he reported a hate crime to landlord on 8 January 2021. No information has been seen to fully confirm the nature of the incident.
The resident’s later correspondence shows he applied for a community trigger investigation on 13 January 2021. He said this was prompted by the number of ASB reports which the landlord had not responded to.
The resident’s timeline shows he raised the broken glass again at a leadership level on 19 January 2021.
A further routine inspection was completed on 20 January 2021. The inspection report shows glass and litter was identified in the garden. The report included five different images of affected areas. The resident’s timeline shows he was advised the landlord had removed the bike the same day.
The resident’s timeline shows he logged another service failure with the landlord on 22 January 2021. This was based on its failure to respond to his concerns around the quality of inspections and cleaning in the garden.
Around 1 February 2021 the resident reported a neighbour was engaged in criminal behaviour in breach of their legal restrictions. The report was linked to the garden and other communal areas. The landlord’s ASB case notes show an acknowledgement letter was not sent and a risk assessment form was not completed. The notes said the landlord was already dealing with ongoing issues related to the garden and it did not want to duplicate work. Though no details of the incident were provided, the ASB notes said it did not constitute a breach.
The resident’s later correspondence shows the police advised the landlord to close the garden on a temporary basis on 5 February 2021.
On 9 February 2021 the landlord wrote to the resident. It said the garden would be temporarily closed following increasing reports of ASB in the area, along with a petition from residents. Further, the decision was taken following advice from the police and other agencies. It said the landlord was planning reopen the garden once the ASB issues were resolved. However, plans may change depending on its assessment of the petition and any further contact from residents.
The landlord’s ASB records from 10 February 2021 show the garden had been closed. They also confirm the community trigger threshold had been met and the landlord was awaiting a meeting with the relevant bodies. The evidence suggests the garden remains closed to date.
The resident’s later correspondence shows the community trigger panel made recommendations on 18 March 2021. It said they broadly mirrored the police recommendations, but the key difference was that the garden should be closed for six months to allow the resident some respite prior to the consultation.
On 23 February 2021 the resident raised three separate formal complaints about the condition of the garden. The first related to “month old rubbish” which was spreading to the property’s own adjoining garden area. The others concerned a bike being stored in the area and uncollected broken glass. Each email included a detailed timeline of events. Supporting images were also attached to some of the emails.
The resident said the landlord failed to inspect the garden properly or to remove rubbish within a reasonable timeframe. As a result, it had taken over three months to remove the bike and the glass. Since cleaning fees were included in the resident’s service charge, he felt he was paying for cleaning that was not being delivered.
The landlord acknowledged the resident’s concerns the same day. It said the issues would be investigated as a single complaint and the resident would receive a response within 20 working days.
The landlord’s complaint investigation notes suggest there was still rubbish in the garden on 1 March 2021.
On 5 March 2021 the landlord completed another routine inspection. The inspection report shows there was no litter, broken glass or dumped items in the garden at this time. This was around four months after the broken glass was first reported.
The resident spoke to the Ombudsman the same day. He said, when he moved to the property, he was told he would have sole use of the garden area. He wanted the landlord to revert the area to a sole access space on the basis he could secure the gate and prevent ASB issues.
The landlord’s complaint notes show it spoke to the resident on 12 March 2021. This was 13 working days after his complaint was raised. The notes said the resident was pleased his concerns had been investigated but he wanted the garden to be permanently closed. To this end, he had submitted a petition signed by around 20 residents in January 2021.
They show he was also concerned the garden was created unlawfully in 2015. This was because the landlord was unable to provide any risk assessment or planning permission documents in response to his recent Subject Access Request (SAR). The notes indicate the SAR highlighted that the landlord did not want the garden permanently closed because it was associated with a service charge. They said the resident was unable to use the windows to vent the property due to ASB issues in the garden.
The resident emailed the landlord on 16 March 2021. The main points were:
1. The landlord upheld his three complaints during a phone call on 12 March 2021. A fourth complaint about rubbish in the garden, from 6 December 2020, was awaiting a response.
2. The garden had been “a dumping ground for bulk items” since it was created in 2015. Previously dumped items included furniture, a ladder and a bathtub. Complaints had not resolved the issue and the landlord previously advised it was unable to remove items belonging to residents.
3. The resident had ultimately moved some items with help from the landlord’s caretakers. This was unfair when rubbish removal was covered by his service charges. Since the landlord neglected the garden, it should be secured and permanently closed.
On the same day, the landlord issued a separate stage one response in relation to staff conduct and rubbish in the garden. It said it was sorry if the resident felt its operative’s actions were directed at him personally. An assurance was offered that the relevant team member would act professionally going forwards. It also said the resident already had an open complaint about rubbish in the garden, so the matter had not been reinvestigated. The landlord’s correspondence suggests both complaints were escalated on 16 March 2021.
The complaint notes show the resident asked for his concerns to be escalated when he was advised the landlord was unable to permanently shut the garden. They also show he raised impartiality concerns about the member of staff investigating the complaint. The evidence suggests this was on the basis they knew the member of staff involved.
The resident’s correspondence from 22 March 2021 suggests the landlord was conducting weekly inspections of the garden around this time. During the correspondence, he said he wanted all costs associated with the garden, such as planning and materials, to be refunded since the space was created without his consent. Further, all the associated service charges for activities such as maintenance, gardening and rubbish removal should be refunded from 2016.
The landlord issued a stage two response on 8 April 2021. This was around 36 working days after the stage one complaints were escalated. It said the resident confirmed two issues were not fully addressed at stage one during a phone call on 27 March 2021. They concerned the landlord’s complaint handling and response to a “hate crime” reported in January 2021, along with its response to the resident’s concerns about the garden and his request that it should be permanently closed. The main points were:
1. Having listened to the relevant call, the landlord felt the resident’s complaint handling concerns had arisen from a misunderstanding on its part. It was sorry this occurred, and feedback had been given to the relevant advisor.
2. The landlord had failed to provide all the available information in response to the resident’s Subject Access Request from December 2020. It had since worked with the resident to ensure the correct documents were located and supplied for a community trigger conference that occurred in March 2021. The landlord was sorry for a delay in collating the information, which may have been due to a recent change of systems.
3. The landlord received the resident’s report of a hate crime on 8 January 2021. The matter was investigated by the landlord’s tenancy enforcement team which liaised with the police. Since the perpetrators were unknown to the landlord, it was unable to take further action. The landlord noted there was a delay in updating the resident and said it was glad the police referred him to Victim Support.
4. Following a community trigger conference on 18 March 2021, it was agreed the garden would remain closed at present. The landlord was aware of ASB and fly tipping reports related to the area from September 2020, and it had previously discussed the situation with the resident. It was therefore sorry he ultimately moved some of the rubbish himself.
5. The landlord was aware residents recently submitted a petition to close the garden and the matter was under review. Further consultation was currently ongoing but would take a minimum of six months to complete. In the meantime, the garden would remain closed.
6. The consultation would consider the views of all residents. The landlord was grateful for the resident’s input into the process, and it was aware he would be attending a meeting involving the police the following day. This would provide further opportunities to discuss making the garden more secure.
The ASB records show the parties were in correspondence between
6 and 15 April 2021. During this time, the resident said he had not received any support from mental health agencies which the landlord was supposed to put him in contact with. Further, the landlord had not completed a risk assessment in relation to the ASB. As a result of the lack of support, he had been referred to the NHS Crisis Team and social services by a GP. This was to help him cope with the situation.
The landlord wrote to the resident on 4 May 2021 after he complained about being woken by its staff talking near his bedroom window. It said it was in the process of cutting the garden’s hedges in line with recommendations from the police. Other changes would be made in accordance with the recommendations, which arose during a meeting attended by the resident. This was with a view to increasing safety in the area irrespective of whether the garden would be reopened.
The landlord’s ASB records from 20 May 2021 show the landlord emailed the resident to ask if there had been any further issues. The case was then updated to reflect that no further incidents had been reported. A further entry on 1 June 2021 shows the case was closed since there were no further reports and the landlord was in frequent contact with the resident.
On 1 June 2021 the resident raised a new complaint with the landlord by email. The complaint concerned the landlord’s alleged failure to respond and implement the resident’s requests for reasonable adjustments in line with the Equality Act (2010). The main points were:
1. The consultation should be concluded in 10 working days.
2. The garden gate should be relocated away from the resident’s bedroom wall.
3. The landlord should give the resident 24 hours’ notice of any works in the garden, which should always be scheduled in the afternoon.
4. The boundary railings should be replaced with fence panels to prevent rubbish accumulating in the garden.

The Ombudsman has not seen any formal response from the landlord to this complaint.

On 3 August 2021 the landlord wrote to the resident to say it had started the consultation on the garden and residents were invited to give feedback. This would help the landlord decide if the space should be opened or whether it should be kept closed for a longer period.
The resident emailed the landlord on 11 August 2021. He said he was disturbed around mid-day by a contractor surveying the garden with a view to installing CCTV. The resident said he should be given 24 hours’ notice prior to attendance by any contractors on the basis unexpected disturbances could trigger panic attacks and infringed on the peaceful enjoyment of his home.
The resident said the police previously recommended CCTV should be installed if the garden was to be reopened. Further, the police also told him he would be assigned the garden for private use following the end of the consultation period. He understood this was based on information obtained from the landlord. He questioned why he had not heard any corresponding information directly from the landlord.
The landlord wrote to the local mayor on 12 October 2021. The correspondence shows the mayor was in contact with the landlord on the resident’s behalf. The landlord said the property was located across the road from a project aimed at supporting homeless people, who often needed help with issues around drug use.
It also said it would investigate any issues that took place on its property, but it was unable to take direct action against perpetrators who were non-residents. Issues associated with the project should therefore be reported to the police. However, it would cooperate with any police investigation where possible. It also said the resident had an ongoing ASB case where the perpetrator had received a written warning about their behaviour. The landlord said it was in frequent contact with the resident and was offering support where necessary.
The landlord wrote to the resident on 28 February 2022. It said it had no intention of opening the garden at this point since further actions and additional investigation were needed. However, a limited response to the consultation had shown there was some interest in a community garden. A survey would be issued to residents in due course and the landlord would communicate its subsequent decision.
During a phone conversation on 8 April 2022, the resident told the Ombudsman ASB issues were ongoing along the borders of the estate. However, he frequently reported incidents directly to the police. He expressed concern that the landlord would reopen the garden regardless of the outcome of the consultation. He emphasised this was contrary to information he was given by the police. From the conversation, it was understood the resident felt the garden should be assigned to the property to prevent ASB incidents, and to alleviate the impact of its communal use on his health conditions.

Assessment and findings

The evidence, which includes footage from the resident, suggests the garden has attracted multiple incidents of ASB both during and outside of the above timeline. It is recognised the situation has been highly distressing to him at a time when he is dealing with a number of difficult personal circumstances. It is also accepted the events have had a negative impact on his welfare.
The resident’s complaint on 1 June 2021 postdates the landlord’s final response. No evidence was seen to show these concerns have completed the landlord’s complaints process. Nor was any seen to confirm this was due to a failure on the landlord’s part. On that basis, this complaint falls outside the scope of this assessment. While the Ombudsman is unable to reach findings under the Equality Act (2010) or otherwise, the resident is encouraged to approach this service if he is dissatisfied on obtaining the landlord’s final response. This is because there may be aspects of the complaint which we can consider.
One of the resident’s key concerns relates to the future of the garden. No information was seen to show the garden is included in the resident’s tenancy agreement. This suggests the landlord is entitled to take internal decisions around its usage. It may help to explain, the Ombudsman cannot compel the landlord to adopt a particular course of action in this regard.
That said, we would expect the landlord to consider all the relevant information to allow it to make an informed decision. At the time of the assessment, the evidence seen suggested a decision had not been made since the landlord was still gathering information. No direct evidence, from either the landlord or the police, was seen to show the landlord agreed to assign the garden to the resident for his sole use. While the consultation period may have lasted longer than the resident anticipated, it is reasonable to conclude the impact of any delay was limited while the garden was closed.
The Ombudsman would also expect the landlord to comply with any safety recommendations from relevant specialists or the police. It was noted the evidence suggests the landlord adopted several police recommendations to improve security in the garden. For example, hedges were trimmed to increase visibility and a contractor was arranged with a view to installing CCTV. Elsewhere, the resident said the landlord was considering installing motion sensitive lighting in the area.
It is the Ombudsman’s role to assess the appropriateness and adequacy of the landlord’s actions in responding to reports of ASB and the fairness and reasonableness of its response to the formal complaint. This does not include establishing whether a party is responsible for ASB; our investigation is limited to the consideration of the actions of the landlord in the context of its relevant policies/procedures as well as what was fair in all the circumstances of the case. The Ombudsman cannot tell the landlord to take action against neighbours.
The timeline confirms there were issues with the landlord’s handling of the resident’s reports of ASB. For example, it took three months, between 8 January 2021 and 8 April 2021, for the resident to receive a full explanation of its response to the reported hate crime. While it was unlikely the landlord would be able to take direct action against non-residents it couldn’t identify, the evidence shows its handling of the report was contrary to its ASB policy for several reasons.
The landlord failed to update the resident at regular intervals. This is evident because the issue had to be raised through the landlord’s complaints process before he learned the outcome. The landlord also failed to refer the resident to appropriate support agencies. This was confirmed by the wording of the stage two response, which said the landlord was glad the police had referred him to Victim Support. These failures also confirm the landlord’s handling was disproportionate to the incident. This is because its ASB policy confirms hate crimes are more serious than typical ASB incidents.
On that basis, the resident could have reasonably expected to receive an increased level of support from the landlord given the severity of the reported incident. The above identified failures confirm this is not what happened. Though the landlord acknowledged a handling delay in its stage two response, no apology, or other redress, was offered.
In relation to the broken glass, bike and other rubbish, the timeline confirms it took around four months for the issues to be fully resolved. This is based on the period between 2 November 2020, when the glass was first reported, and
5 March 2021 when the landlord’s inspection report confirmed the items were no longer present. While the bike may have presented a more difficult issue to resolve, it is reasonable to conclude the landlord could have removed the broken glass easily in line with its estate management policy. Overall, the landlord’s response time was inappropriate given the hazardous nature of the glass and the resident’s repeated reports.
Though the evidence shows the resident’s related complaint was upheld, there is little evidence to show how it was resolved for the resident. This is because the landlord doesn’t appear to have issued a stage one response letter recording the outcome. This will be considered further during the assessment of the landlord’s complaint handling.
The timeline confirms it took the resident’s invocation of the community trigger process before serious attempts were made to resolve the ASB problems associated with the garden. These efforts were largely based on recommendations from the police and other bodies. It is reasonable to conclude the landlord could have considered taking independent steps address ASB in the garden beforehand, in line with its estate management policy. For example, by trimming hedges or installing additional lighting. However, no evidence was seen to show any such measures were considered. The fact the community trigger threshold was met indicates the frequency and repeated nature of the ASB incidents.
The timeline highlights other issues with the landlord’s ASB case handling. For example, a failure on the part of the landlord’s relevant team to acknowledge a new report in November 2020, as promised, within two working days. Further, a failure to complete a new case risk assessment, in response to the resident’s reports about a neighbour from around February 2021, in line with its ASB policy. The evidence suggests the resident was aware of the policy and did not agree to forego the risk assessment. It is noted the stated aim of a risk assessment is to govern the speed and scale of the landlord’s response.
In summary, the evidence shows the landlord failed to consider relevant factors such as proportionality, frequency of incidents, impact to the resident and timeliness of response on several occasions in line with its ASB policy. This was evident from its response to the hate crime and its failure to independently consider preventative steps in relation to ASB in the garden. The landlord also failed to offer proportionate redress when it identified a delay but declined to apologise to the resident. Overall, this amounted to maladministration on the part of the landlord in respect of its response to the resident’s reports of ASB linked to the communal garden.
This assessment also considered the landlord’s complaint handling in conjunction with the Housing Ombudsman’s Complaint Handling Code (published July 2020). The timeline shows there were delays at both stages of the landlord’s complaints process. No evidence was seen to show the resident was updated or given a revised response timescale on either occasion.
Section 3.14 of the Code says, “Landlords shall address all points raised in the complaint and provide clear reasons for any decisions…”. The timeline shows concerns were raised about the process leading to the creation of the communal garden during the landlord’s discussion of the outcome at stage one. The resident also raised concerns about his service charges before the case was discussed at stage two on 27 March 2021.
Neither of these issues were addressed in the landlord’s final response on
8 April 2021. The evidence shows there were several references to these concerns in the preceding complaint notes and correspondence. It is therefore unclear why the landlord overlooked these aspects of the complaint which were outstanding from the previous stage.
Section 3.15 of the Code shows landlords should write to the resident at each stage of the complaints process and include details of the complaint outcome, the underlying rationale and any remedy offered to put things right. As mentioned, the evidence suggests the landlord didn’t issue a written response to the resident’s primary complaint at stage one. The reasoning behind this is unclear since a written response was issued to another stage one complaint around the same time. The landlord’s complaint notes suggest no redress was offered beyond the eventual clearance of rubbish from the garden.
Section 5.2 of the Code says, “Landlords should acknowledge and apologise for any failure identified, give an explanation and, where possible, inform the resident of the changes made or action taken to prevent the issue from happening again.” As a result, the landlord’s failure to offer an apology for a delay that it identified and explained was contrary to the requirements of the Code.
Given the above, the evidence shows there was maladministration in respect of the landlord’s overall complaint handling. This was because it failed to conform to the Code on a number of occasions.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration in respect of:
1. The landlord’s response to the resident’s reports of ASB linked to the communal garden.
2. The landlord’s complaint handling.

Reasons

The evidence shows the landlord failed to consider relevant factors such as proportionality, frequency of incidents, impact to the resident and timeliness of response on several occasions in line with its ASB policy. It also failed to clear items from the garden promptly in accordance with its estate management policy.
Several aspects of the landlord’s complaint handling were contrary to the requirements of the Housing Ombudsman’s Complaint Handling Code. The landlord failed to address all points raised during the complaint, to issue a written response at stage one and to redress a delay identified at stage two.

Orders and recommendations

Orders

The Ombudsman orders the landlord to pay the resident a total of £350 in compensation within four weeks comprising:
1. £200 for any distress and inconvenience the resident was caused by the above identified delays and failures in respect of the landlord’s response to the resident’s reports of ASB.
2. £150 for the any distress and inconvenience the resident was caused by the above identified delays and failures in respect of the landlord’s complaint handling.

This brings the total award in line with the Ombudsman’s expectations for instances where failure over a considerable period of time to act in accordance with policy – for example to address repairs; to respond to ASB or to make adequate adjustments has occurred.

The landlord to write to the resident within four weeks in reply to the service charge concerns he raised, from 23 February 2021, during his formal complaint.
The landlord to write to the resident within four weeks with an update on the progress of his complaint raised on 1 June 2021.

Recommendations

The landlord to share the report’s key findings with its relevant staff for training purposes.
The landlord should confirm compliance with the orders along with its intentions regarding the recommendation within four weeks of the date of this report.