Clarion Housing Association Limited (202116797)

REPORT

COMPLAINT 202116797

Clarion Housing Association Limited

13 April 2023

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:
1. Handling of the resident’s reports of a neighbour building a garden structure.
2. Handling of their reports of anti social behaviour (ASB) and noise nuisance.
3. Handling of the resident’s complaint.
4. Communication with the resident.

Background and summary of events

Background

The resident is a joint assured tenant of the property, a one-bedroom bungalow, from April 2012, and the landlord is a housing association. This report refers to both joint tenants as the resident. The resident has told the landlord that they have cancer, dyslexia, and post traumatic stress disorder (PTSD).
Under the Regulator of Social Housing’s neighbourhood and community standard, social housing landlords are required to work in partnership with other agencies to prevent and tackle ASB. Landlords are specifically expected to take appropriate action to deal with ASB before it escalates, and tailor preventative measures towards the needs of tenants.
The landlord’s anti social behaviour policy says the landlord takes ASB (including noise nuisance), seriously and aims to balance enforcement action with prevention. It uses the definition of ASB provided by Section 2(1) of the Anti-social Behaviour, Crime and Policing Act 2014. This includes considering conduct capable of causing nuisance or annoyance to a person in relation to their occupation of their home as ASB. The policy sets out examples of behaviour which would not be considered as ASB including do-it-yourself work during reasonable hours. However, it recognises that behaviour not considered to be ASB may still have a harmful impact if it is deliberate and persistent and says it will investigate such cases as ASB. The policy says the landlord will respond sensitively to victims and provide them with help and support.
The ASB policy includes thresholds for the frequency of incidents which will normally trigger it to investigate “fully”, though it also says these do not apply if the landlord considers the resident is “particularly” vulnerable. The policy says that it will investigate reports within five working days, will encourage residents to resolve issues themselves where appropriate, and may advise residents to report noise nuisance to their local authority to deal with under their statutory powers.
The landlord has a separate tenancy management policy which sets out its approach to tenancy breaches which are not ASB related including failure to get permission before doing alterations. It says it will investigate and give residents the opportunity to put things right “where appropriate”, and that it will take firm action where there are breaches which create an unacceptable risk to the wellbeing of other residents. However, it also says that where permission has not been obtained it will “take action to enforce the tenancy condition”.
The landlord has a permissions policy which aims to ensure that it deals fairly with permission requests, including requests to build garden structures. It says that the landlord will ensure that a resident’s activities do not “unduly” cause nuisance to other residents, and that it will consider the impact on neighbouring homes when deciding whether to grant permission.
The landlord has a two stage complaint process and its policy at the time of this complaint did not include response timescales. It gave examples of matters that were excluded from its complaints process including complaints about a neighbour and issues regarding antisocial behaviour unless it was about the handling of an ASB case. The landlord has a separate compensation policy which provides for compensation payments to be made where there has been a service failure.
The Ombudsman recently investigated the landlord under paragraph 49 of the Housing Ombudsman Scheme. The report was published in October 2022 and, although the investigation focussed on the landlord’s handling of specific repair issues, it identified common points of failure in the landlord’s handling of complaints. These included delayed responses, inadequate analysis of what had gone wrong and insufficient redress. The report is available at Housing Ombudsman Special Report on Clarion Oct 2022 (housing-ombudsman.org.uk).
On 23 March 2020 the UK government announced a national lockdown due to covid-19. This was eased from June 2020 when schools and non-essential retail outlets re-opened. The government introduced new restrictions from 22 September 2020 and a second full national lockdown was announced on 31 October 2020 that came into effect from 5 November 2020. While restrictions were lifted slightly over Christmas, there was a third national lockdown from 6 January 2021. While schools re-opened on 8 March 2021, the “stay at home” order remained in place until 29 March 2021. On 19 July 2021 most legal limits on social contact were removed in England and the final closed sectors of the economy reopened. During lockdowns the landlord’s ability to visit or meet face to face with residents was limited by the relevant government guidance at the time.

Scope of investigation

The resident provided the Ombudsman with evidence that they had reported noise nuisance to the local authority’s environmental health team in December 2019. It confirms that the council intended to install noise monitoring equipment but this was prevented due to covid-19 restrictions during 2020. The resident has told us that they did not report the noise nuisance to the landlord at that time.
Similarly, the resident referred to an incident some years previously where the neighbour’s dogs attacked her which left her with PTSD. The resident says that they reported it to the landlord which resulted in fencing being replaced to prevent the dogs getting access into their garden.
More recently, the resident has advised that they have made further reports regarding noise nuisance and have raised a new complaint with the landlord about its response.
These matters have not been included in this investigation and are provided for context only.

Summary of events

Sometime in August 2020, the resident reported to the landlord that a neighbour was building a garden structure. The landlord opened a tenancy breach case which was closed because no photographs of the structure had been included. The resident was not informed that the case had been opened or closed and was not asked to provide photographs.
The resident emailed the landlord on 12 April 2021 saying that he had reported the building work in the neighbour’s garden several times and been promised that someone would call him back but no one had. He said he had asked for a meeting to discuss his concerns but no one had responded. The resident said that the noise of the building work was excessive and went on all day, and that he did not feel that his concerns were being taken seriously. He asked for a meeting to discuss his concerns.
The landlord asked the resident to provide photographs, which he did, and opened another tenancy breach case. The resident was not informed that the landlord was considering granting permission. The case was subsequently closed when the landlord granted the neighbour retrospective permission for building the garden structure.
On 17 May 2021 the landlord telephoned the resident and its call notes record that:
1. The resident thought this was in response to their reports about the neighbour’s building work.
2. The landlord advised that the neighbour had made an ASB report about the resident.
3. The resident denied the allegations made by the neighbour and told the landlord that they were upset that it had failed to act on their numerous reports about the neighbour over many years yet had acted on the neighbour’s report against them.
4. The resident told the landlord that she suffered from PTSD and asked the landlord to visit to listen to recordings they had of the noise nuisance.
5. The landlord advised it was not able to visit and the officer noted that the resident seemed “anxious”.
The landlord confirmed the outcome of the call in a letter dated 19 May 2021 saying that the resident’s reports about the garden structure were being investigated as a tenancy breach, giving general advice on the landlord’s approach to ASB and enclosing diary sheets.
The resident made a formal complaint on 27 May 2021 saying that they had reported their neighbour multiple times over many years and the landlord had not done anything. He said that he had cancer and that the other resident was also sick and asked the landlord to call.
The landlord wrote to the resident on 1 June 2021 advising that the ASB case was being closed as no further incidents had been reported. It said it had offered mediation but this had been declined. The resident telephoned the landlord on 8 June 2021 saying he was unhappy that the ASB case had been closed and felt that the landlord had not listened to his concerns. He asked for the landlord to call him.
The landlord provided its stage one response to the resident’s complaint on 11 June 2021, referring to a telephone call with them the previous day. It said that:
1. It had no records of previous ASB reports made by the resident and no incidents had been reported which met its threshold for ASB.
2. It noted the resident wanted an ASB case to be opened and had proof of incidents that had taken place. It advised him to provide further details to enable it to open a case and said it would consider his request for a home visit when it received his further information.
3. It suggested that he also report ASB or noise concerns to the local authority, and any criminal activity to the police.
4. It confirmed it was aware of the structure in the neighbour’s garden and had no concerns but could not advise the resident further due to data protection.
5. It acknowledged that its communication could have been better and apologised for this. It offered £250 compensation in recognition of its service failures in the resident having to chase responses and being passed around various teams.
On 22 June 2021 the resident escalated his complaint by telephone and confirmed the reasons in a ten page letter a few days later. He said:
1. The noise from the neighbour’s building was having a serious impact on their health. Both residents had illnesses including PTSD and cancer, and one resident was also dyslexic.
2. They were concerned about the structure’s proximity to the fence and the safety of the electrics that had been installed.
3. There had been many issues with the neighbour over the years and they felt the neighbour had a vendetta against them. They gave examples of various incidents that had taken place, including an incident in April 2021 when the neighbour shouted at her causing her to fall on the pavement and break two teeth.
4. They were not satisfied with the landlord’s complaint response or that the landlord had closed the ASB case.
The evidence shows that the resident chased a response to his complaint escalation at least five times between 6 July 2021 and 22 July 2021. The landlord provided its stage two response on 12 August 2021 and said that:
1. It apologised for the delay in responding and offered £50 compensation.
2. It was sorry to hear of the various incidents that had taken place but did not have any record of the resident reporting them prior to his complaint. It noted that he had reported some issues to other agencies but they had not passed on the information.
3. It had opened an ASB case following the neighbour’s reports in April 2021 and had spoken to the resident and the neighbour. It had closed the case when no further incidents were reported and mediation had been declined.
4. It acknowledged that his reports about the garden structure had resulted in him being passed around its various teams dealing with permissions, tenancy breaches and ASB, and had awarded compensation for this at stage one.
5. It reiterated that it could not give further information regarding the neighbour’s permission request for the garden structure. However, it reassured him that it had procedures to ensure any such alterations were safe.
6. It did not feel there had been any service failures in its response to the ASB and he should report any further incidents.
The resident contacted the Ombudsman on 21 October 2021 saying that he remained dissatisfied with the landlord’s handling of his reports of ASB, noise nuisance and the neighbour’s garden structure. He said that he had been reporting issues over many years and the landlord had done nothing, that it had not communicated with them properly, and that they felt the landlord was treating them differently to their neighbours.
On 28 February 2023 the resident told us they had continued to experience noise nuisance from the same neighbour and had made further reports to the landlord since January 2023. They said that they had also made a further complaint to the landlord about its response to those reports.

Assessment and findings

In reaching a decision about the resident’s complaint we consider whether the landlord followed proper procedure and good practice and acted in a reasonable way. Our duty is to determine complaints by what is, in this Service’s opinion, fair in all circumstances of the case.

Handling of the resident’s reports about a neighbour’s garden structure

From the evidence seen, the landlord has separate teams that deal with ASB (including noise nuisance), other tenancy breaches and permission requests. This is a common approach but landlords must ensure that their specialist teams do not work in silos and that there is collaboration and co-ordination in managing cases that span across specialisms. It is also essential that there is awareness of responsibilities across the wider organisation to ensure that cases are routed to the correct teams.
As the landlord acknowledged in its complaint responses, the resident in this case was passed around various teams when he reported the noise nuisance and other concerns regarding the structure being built by his neighbour. The evidence shows that the noise nuisance element of his concerns was overlooked resulting in his report being considered initially as a tenancy breach regarding the neighbour not having the landlord’s permission to build the structure. Under the landlord’s ASB policy, the resident’s report should have been also considered as a report of noise nuisance.
The landlord told us that it would always consider granting retrospective permission for unauthorised alterations before considering action as a tenancy breach. This is a reasonable approach but is not clearly explained in its tenancy management policy which says it will give residents the “opportunity to put things right”, without explaining what that means, yet also says it will take “firm action” and will “enforce the tenancy conditions”. This lack of clarity is likely to lead to residents having inaccurate expectations of what the landlord will do when such a tenancy breach is reported. In this case, the resident expected the landlord to take some action in response to his report and when it did not, he understandably felt his concerns had been ignored.
Similarly, the landlord’s permissions policy statement that it will “ensure that a resident’s activities do not unduly cause nuisance to other residents” is not clear. The policy does not explain what the landlord would consider as undue nuisance or how it will consider the impact on neighbouring homes. The landlord should consider clarifying both policies to ensure that residents know what to expect when a tenancy breach has been reported and how it will consider permission requests. The landlord should also publish its permissions policy on its website.
The landlord should have asked the resident to provide photographs of the garden structure when he initially reported concerns in August 2020 and it was inappropriate that it did not investigate the alleged tenancy breach. Although it did ask for photographs on 12 April 2021, it still did not tell the resident how his report would be dealt with. That it did not do so was unreasonable and meant that the resident’s concerns were not addressed or responded to and gave him no opportunity to challenge the landlord’s approach.
No evidence has been seen that the landlord considered the impact on the resident when deciding to grant retrospective permission to the neighbour. It would have been reasonable for it to have done so, given the resident’s multiple reports of concerns about the building work and safety of the structure. That it did not do so was inappropriate and contrary to its permissions policy. The resident has told us that, in addition to the noise nuisance they experienced during the building work, the garden structure exacerbated relations with the neighbour and continues to limit their enjoyment of their garden.
For the reasons set out above there was maladministration in the landlord’s handling of the residents reports about their neighbour’s garden structure.
The landlord did not follow its policies, did not address the concerns raised by the resident or recognise the impact the building work and structure had on them, and did not consider the effect on neighbour relations. Although the landlord offered £250 compensation this was in respect of the resident being passed around various teams and not for its response to his concerns.
Orders have been made below for the landlord to apologise to the resident and pay an additional £450 compensation. This sum has been calculated in consideration of the landlord’s compensation policy and the distress and inconvenience caused by the exacerbation of the relationship with the neighbour. An order has been made for the landlord to review its tenancy management and permissions policies and publish its permissions policy on its website.

Handling of the residents reports of ASB and noise nuisance

The evidence suggests there is a history of ASB and nuisance experienced by the resident, though it is clear that not all incidents were reported to the landlord when they happened. However, it appears that some were, for example the resident says the landlord replaced fencing following the incident set out in paragraph 12. Furthermore, the landlord’s complaint records show that the landlord recognised that it should have dealt with his report of 12 April 2021 about the neighbour’s structure as ASB during its stage one investigation of his complaint. As such, it is not clear why the landlord said it had no previous records of reports prior to the resident’s formal complaint on 27 May 2021.
Although the landlord’s letter of 19 May 2021 gave a new ASB case reference, it did not explain that a case had been opened following the telephone discussion on 17 May 2021. Nor did it explain its understanding of the ASB reported or how the allegations would be investigated. This meant that the resident’s concern about the noise nuisance caused by the neighbour’s building work was overlooked again. Furthermore, the inclusion of the ASB thresholds and explanation of what is not considered ASB was unreasonable and could be perceived as discouraging the resident in pursuing his reports.
No evidence has been seen that the landlord considered the impact of the neighbour’s alleged behaviour on the resident or the resident’s vulnerabilities at any point during the events in this case. It would have been appropriate for it to have done so, given that its ASB policy says that it will and that the resident had disclosed their vulnerabilities during the telephone discussion on 17 May 2021, which were noted at the time, and on other occasions after this.
The landlord’s decision to close the resident’s ASB case on 1 June 2021 was not reasonable as this was only two weeks after his conversation with the neighbourhood officer on 17 May 2021. Furthermore, the landlord had declined the resident’s request for it to visit to listen to evidence of his allegations and had not offered any alternative options to enable him to provide it. Also, the landlord’s letter of 19 May 2021 had not given the resident a timescale for returning the diary sheets that it had sent or explained what would happen if no further incidents were reported.
Some of the incidents set out in resident’s complaint escalation of 29 June 2021 were serious and should have prompted the landlord to consider intervention. The landlord should have taken appropriate steps under its ASB policy when it became aware of those allegations. Given the number and severity of incidents alleged, it was inappropriate that the landlord did not open an ASB case and said it had identified no failings in its handling of the ASB reported.
The evidence seen suggests the landlord’s policy regarding behaviour not considered as ASB and its ASB thresholds resulted in the landlord not intervening in this case. This meant the landlord did not take any steps to prevent the ASB escalating and did not tailor any preventative measures towards the needs of this resident. The landlord should consider whether its ASB policy undermines its ability to demonstrate that it is meeting the specific expectations within the neighbourhood and community standard and whether it reflects good practice in respect of prioritising and managing ASB cases using an impact and risk assessment approach.
The failings set out above resulted in the resident’s reports not being appropriately addressed and they say that they are continuing to experience ASB from their neighbour, which affects their quiet enjoyment of their home. As such, there was maladministration in the landlord’s handling of the resident’s reports of ASB and noise nuisance. Orders have been made below for the landlord to apologise for the failings identified, meet with the resident to discuss their ongoing concerns, and pay compensation of £300. This has been calculated in consideration of the landlord’s compensation policy and the distress and inconvenience caused to the resident for the period their allegations of ASB have been overlooked. An order has been made for the landlord to review its ASB policy and approach.

Handling of the resident’s complaint

The resident’s contact of 12 April 2021 was a clear expression of dissatisfaction that the landlord had not responded to previous reports made about his neighbour’s building work. Under its complaints policy the landlord should have dealt with this through its complaints process. That it did not recognise the complaint resulted in delay in the resident’s dissatisfaction being considered through the landlord’s process and delayed him accessing alternative resolution through this Service.
The landlord’s stage one response acknowledged that the resolutions that the resident wanted included support with the ongoing ASB and reassurance on the structure built by the neighbour. However, the response did not provide those resolutions or give reasonable explanations of why it could not provide them.
The landlord’s records of its complaint investigation at stage one suggest that the landlord had recognised the resident’s dissatisfaction and felt that it should have responded to his contact on 12 April 2021 as ASB. The complaint officer noted that the contact had not been actioned appropriately so it is not clear why the landlord’s response did not address the failings that it had identified or why the landlord did not consider the contact as a formal complaint. Furthermore, the landlord’s response did not put things right for the resident as it still did not arrange to consider his concerns under its ASB policy.
The reference to the ASB case opened in April 2021 in the landlord’s stage two response of 12 August 2021 was misleading as that case related to the neighbour’s reports and not the resident’s. The landlord should have referred to the case opened following the call of 17 May 2021, by not doing so it missed the opportunity to question why that case had been closed after only two weeks.
The stage two response was provided 38 working days after the resident’s escalation which was not reasonable, despite the landlord’s complaints policy at the time not specifying timescales. It is noted that the landlord gave £50 compensation in recognition of the delayed response but it did not give any explanation of the reason for it. Furthermore, the response again did not put things right for the resident as the landlord did not make any arrangements to deal with the issues that he had raised in his complaint or acknowledge any service failings in respect of his ASB reports.
The landlord’s position in refusing to give the resident information on the outcome of his reports of the neighbour’s garden structure was inappropriate. Whilst data protection legislation does mean that the landlord should not disclose personal or sensitive information without the person’s consent, the landlord could have confirmed it had given permission for the structure without breaching the guidelines. It could also have sent the resident a copy of its permissions policy, which is not available on its website, to show how permission requests are considered. The landlord’s refusal to give what information it could resulted in distress and inconvenience to the resident.
For the reasons set out above, there was maladministration in the landlord’s handling of the resident’s complaint. Orders have been made below to apologise to the resident and pay additional compensation of £100. This has been calculated in consideration of the landlord’s compensation policy and the distress and inconvenience caused to the resident for the period his complaints remained unresolved.

Communication with the resident

The evidence shows that the resident made repeated calls and sent at least six emails over the period of a year about the issues with their neighbour and their complaint. The resident asked multiple times for the relevant staff members to call him and several times for someone to visit him. As was acknowledged by the landlord, some of the resident’s reports were mishandled resulting in the wrong person calling him back or no one calling back at all, and the landlord declined the resident’s requests for visits.
The landlord’s records suggest that, in some instances, the mishandling of contacts from the resident was due to them being logged incorrectly. For example, the resident’s request for a call back on 8 June 2021 regarding the closure of the ASB case was logged on the closed case meaning that the tenancy specialist team was not made aware of it.
The landlord’s standard acknowledgement of the resident’s contacts gave timescales when the various teams would respond. The resident was understandably disappointed when no one contacted him within the timescale he had been given and felt he was being ignored. The landlord should consider what steps it needs to take to ensure that it meets contact commitments given to residents.
Although it was reasonable that the landlord declined to visit the resident in their home during covid-19 restrictions, it should have considered alternative options such as meeting outdoors or video calling, and it could have arranged a meeting once restrictions were lifted. However, no evidence has been seen that it did so.
The resident told us that he found the landlord’s contact centre staff to be understanding and helpful but felt there was an issue with other teams who did not respond to his requests and reports. The evidence seen does suggest a reluctance of staff to contact the resident on some occasions. For example, on 10 June 2021 the landlord’s complaint officer told a colleague in the tenancy specialist team that the resident wanted to speak to someone about the ASB he was experiencing. The colleague declined to speak to the resident and said that the resident should report any incidents via the contact centre. Not only was this a missed opportunity to gain understanding of the ASB situation, but it also suggests a lack of responsiveness to resident requests and a lack of empathy in the impact that ASB may be having.
This is also suggested by the landlord’s stage two response to the resident’s complaint where it appears that the complaint review was done without speaking to the resident. The response also advised the resident to report future ASB via the contact centre despite the incidents set out in his escalation letter.
The resident asked the landlord for a single point of contact on 12 July 2021 and no evidence has been seen that the landlord considered this request or responded to it. It would have been reasonable for it to have done so given the resident’s dissatisfaction about communication and that the landlord knew of their vulnerabilities.
The resident told us that they believe that the landlord is not interested in listening to their concerns and that they are being ignored. However, no evidence has been seen to suggest that the landlord is treating the resident differently from their neighbour or other residents as they perceive.
For the reasons set out above there was maladministration in the landlord’s communication with the resident. Orders have been made below for the landlord to apologise to the resident and pay compensation of £100. This has been calculated in consideration of the landlord’s compensation policy and the distress and inconvenience caused to the resident by having to make multiple reports of his concerns and chase responses. An order has been made that the landlord consider how it can gain assurance that call back requests are responded to.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in respect of the landlord’s:
1. Handling of the resident’s reports of a neighbour building a garden structure.
2. Handling of their reports of ASB and noise nuisance.
3. Handling of the resident’s complaint.
4. Communication with the resident.

Reasons

The landlord did not consider the noise nuisance aspect of the resident’s reports about the garden structure being built and did not follow its policies when deciding to grant retrospective permission. Furthermore, the landlord did not tell the resident how his reports would be dealt with or what the outcome was.
The landlord did not consider acting to prevent the reported ASB from escalating or tailoring support to meet the resident’s needs.
The landlord did not recognise the resident’s complaint of 12 April 2021 and did not address the issues raised in the resident’s subsequent complaints in its responses.
The landlord mishandled contacts from the resident resulting in him having to make multiple reports and chase up response. This was a significant factor in the landlord not responding to the concerns raised by the resident.

Orders

The landlord is ordered to take the following action within four weeks of the date of this report. The landlord must provide the Ombudsman with evidence that it has complied with these orders:
1. Meet with the resident in person to:
  1. Discuss their ongoing concerns about ASB and noise nuisance.
  2. Gather any evidence the resident wishes to provide.
  3. Give advice on options available to resolve the issues including any action which the landlord can take.
  4. Discuss what further support needs the resident has and advise whether the landlord can meet their needs.
  5. Agree an action plan with the resident for the management of their ASB and noise reports. This should include agreeing the frequency and method of future communication and considering the resident’s request for a single point of contact.
2. Write to the resident to apologise for the shortcomings identified in this report.
3. Pay the resident a total of £1250 compensation in recognition of the distress and inconvenience caused by its handling of the resident’s reports and complaints. It is to be paid directly to the resident and not offset against any arrears. The compensation comprises:
  1. £300 previously offered through its complaints process if it has not paid this already.
  2. £450 for the landlord’s handling of the resident’s reports of the neighbour’s garden structure.
  3. £300 for its handling of the resident’s reports of ASB and noise nuisance.
  4. £100 for its handling of the resident’s complaints.
  5. £100 for its inadequate communication with the resident.
4. Review this case to identify and implement service improvements to ensure:
  1. Its ASB policy and procedures enable the landlord to demonstrate that it intervenes to prevent ASB escalating and tailors preventative measures towards the needs of residents. The landlord should consider adopting an impact and risk assessment based approach to prioritising and managing ASB reports.
  2. Its tenancy management policy is clear about the approach the landlord will take when a tenancy breach is reported.
  3. Its permissions policy explains how it will consider nuisance caused by activities and asses the impact on other residents when making decisions. The landlord should also publish its permissions policy on its website.
  4. There is collaboration and co-ordination between relevant teams when dealing with cases that span across different specialisms.
  5. It has assurance that call back requests from residents are responded to appropriately and within timescale.