Southern Housing Group Limited (202110813)

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REPORT

COMPLAINT 202110813

Southern Housing Group Limited

27 September 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 management of the legal proceedings to gain possession of the property occupied by a neighbour due to anti-social behaviour (ASB) and the level of compensation offered to the resident in respect of the complaint.
The Ombudsman has also considered the landlord’s complaint handling as part of the assessment.

Background and summary of events

Background

The resident is the secure tenant of the property (the property) which the complaint concerns. The landlord owns the property which is a flat.
The resident has stated that, from December 2016, she has experienced and reported to the landlord ASB by the occupant (the neighbour) in the flat above the property, who was also one of its tenants. The ASB complained of included noise nuisance, aggressive behaviour, drug use and water leaks.
In December 2019 the Ombudsman determined a complaint from the resident regarding the landlord’s “response to [her] reports of ASB by a neighbour”. The ASB considered under the investigation covered the period 2016 to April 2019. The Ombudsman found that “there were significant shortcomings in the landlord’s response to the ASB. Although the landlord took a number of actions and liaised with other agencies, these were not effective in reducing the level of ASB and were not always carried out in a timely manner. It also failed to comply with all aspects of its ASB policy; in particular, it did not provide the complainant with an appropriate action plan. The landlord’s offer of £50 compensation for these failures was inadequate in the circumstances”.
In summer 2018 the landlord served the neighbour with a Notice of Seeking Possession (NOSP).
In February 2019 the landlord issued possession proceedings against the neighbour and a hearing date was set for 29 March 2019. The case was however adjourned on 28 March 2019 in order for the neighbour to file a defence.
In August 2019 the landlord was granted an injunction, with a power of arrest, requiring the neighbour to not engage in ASB.
In September 2019 the injunction was extended “until 28 days after the last day of the trial relating to the claim for a possession order”.
The landlord’s claim for possession of the neighbour’s property (the flat) was due to be heard on 10 February 2020 (the hearing) but did not go ahead due to non-payment of the trial fee by its solicitor, who was an external firm, by the required date.
In April 2020 the landlord was granted an injunction, with a power of arrest, requiring the neighbour to not engage in ASB.
In August 2020 the court ordered that the neighbour shall give up possession of the flat by 22 September 2020. The order included a “stay of execution until 20 October 2020 or until 14 days after the offer of alternative accommodation to [the neighbour], whichever is sooner”.
The landlord gained possession of the flat on 13 January 2021 when the resident signed a deed of surrender.
The evidence documents that there were a number of other hearings between June 2020 and December 2020, including for breaches of injunction by the neighbour.

Summary of events

On 19 January 2021 the landlord wrote to the resident to confirm that, following a court hearing on 13 January 2021, it had gained possession of the flat. Within its correspondence the landlord thanked the resident for her “time and assistance with this case” and enclosed a gift card “as a small token of [its] appreciation”. The Ombudsman understands that the gift card was to the sum of £25.
On 1 February 2021 the resident wrote to the landlord to raise a complaint regarding its management of the legal proceedings to gain possession of the flat from the neighbour due to ASB. In summary the resident said:
1. It was unacceptable that the landlord’s solicitor had failed to pay the hearing fee on time and as a result the hearing did not proceed.
2. As a result of the hearing being struck out, the injunction dated August 2019, against the neighbour was automatically discharged.
3. As she was listed as a witness for the hearing she turned down a two week employment placement which she had not been compensated for. She noted that her loss of earnings amounted to £1470.
4. Despite the landlord committing to update witnesses on its internal investigation into the non-payment of the hearing fee by its solicitor, it had not done so.
5. As the landlord had not informed witnesses in advance that the hearing would not proceed due to non-payment of the fee, all witness turned up at the court. She confirmed that as a result the witnesses’ identities were revealed to the neighbour, including her own.
6. The neighbour engaged in further ASB following the scheduled hearing date. She noted that, as the injunction was discharged, witnesses no longer had any protection against the neighbour’s behaviour.
7. During the Covid-19 lockdown the case was dormant. She confirmed that during this period she reported over 25 ASB incidents by the neighbour.
8. Following the hearing she was required to attend five committal hearings as a witness due to the neighbour breaching the terms of the injunction dated April 2020. She noted that the landlord did not offer her an allowance for her attendances. She also noted that the landlord’s management of the committal hearings was poor, including missed deadlines for serving evidence and poor communication regarding vacated hearings.
9. Following the neighbour’s eviction from the property, it must be relet “sensitively” and the floorboards must be insulated to avoid excessive noise transference.
10. The ASB and the landlord’s management of legal proceedings had severely impacted on her health and enjoyment of the property. She noted that she had provided medical letters to support the “anxiety and stress” she had experienced. She stated that it was unfair that the landlord had not taken this into account and it was especially disappointing as she had assisted it in gathering evidence to support its application for repossession of the flat.
11. It was unsatisfactory that the landlord had not considered a management move for the neighbour while legal proceedings were ongoing.
12. The landlord must consider a higher award of compensation in respect of its management of the legal proceedings. She stated that the £25 gift card offered by the landlord was “an insult”.
On 29 March 2021 the landlord provided its stage one complaint response. In summary the landlord said:
1. It acknowledged that the neighbour continued to engaged in ASB while the court case was ongoing.
2. In gaining possession of the property it had to follow a legal process which “was met with several delays due to Covid-19 restrictions and various other court issues which [sat] within a legal frame work [which it had] no control over”.
3. All residents were thanked for their time in assisting in the court case, with the resident being sent a bunch of flowers and a gift voucher.
4. It was aware of the need to sensitivity relet the flat. It confirmed that it was “exploring options” with its Letting Team to ensure that this was achieved.
5. It would not be considering “any further compensation over and above that already paid”. It explained that following its case review it “remained of the opinion that [it] had taken all reasonable action in this matter and although [it recognised] the overall time it [had] taken to get to the current position, [it felt] that many of the delays… [were] due to the complex legal process”.
6. In relation to the resident’s reports of stress she should seek independent legal advice “in terms of a claim against the group”.
7. It acknowledged that the experience had been “very disappointing” and it was sorry that she felt let down by it.
The landlord concluded by confirming that the resident may request to escalate the complaint if she was unhappy with its response.
On 1 April 2021 the resident replied to the landlord. In summary she said:
1. It was not clear what criteria the landlord had applied in determining that £25 and a bunch of flowers was “adequate compensation”. She suggested that a court would consider a “figure of £5000” to be proportionate compensation.
2. The landlord had not reimbursed her costs for attending all legal proceedings as a witness. She noted that she was “required to attend” at the request of the landlord. She reiterated that the landlord’s management of the legal proceedings was poor including missed deadlines and poor communication.
3. She was concerned that the landlord had not taken into account that she had turned down employment to attend the hearing, despite providing “documentary evidence” to support loss of earnings. She noted that she did not need to turn down the employment as the hearing was unable to proceed as scheduled due to non-payment of the fee by the deadline. She stated that the landlord’s solicitor was given notice by the court on 7 January 2020 that the hearing would not proceed.
4. As the hearing did not proceed in February 2020 she was “subjected to a further 10 months of ASB” by the neighbour. She noted that, had the hearing proceeded, it was likely that the landlord would have got a possession order for the neighbour’s property in February 2020.
5. The landlord had not provided an update on action against the solicitor for failing to pay the hearing fee on time.
On 24 May 2021 the resident wrote to the landlord in respect of the complaint. The resident stated that it was unsatisfactory that she had not yet received a proper response to the issues which she had raised.
On 17 June 2021 the landlord wrote to the resident’s MP (the MP) in relation to another matter. Within the response the landlord noted that the resident had recently been in touch following its stage one response dated 29 March 2021 raising concern regarding the compensation offered. The landlord confirmed that it would therefore review the matter “in line with [its] process”.
On 7 July 2021 the resident wrote to the landlord about the complaint following its reply to the MP. In summary the resident said:
1. The landlord had failed to respond to the complaint in line with its complaint policy as it had failed to adhere to its service standards in providing a stage two response.
2. While she had received costs to cover her attendance at court for the hearing, which did not go ahead, she was yet to receive reimbursement for costs incurred to attend the other court dates she was listed as a witness.
Within her correspondence the resident reiterated that she had declined work to attend the hearing and no update had been provided confirming action against the solicitor for failing to pay the court fee on time.
On 13 July 2021 the resident wrote to this Service to request assistance as the landlord had not provided a stage two response to the complaint.
On 8 September 2021, following intervention from this Service, the landlord provided its stage two, final, response. In summary the landlord said:
1. It had reviewed the compensation awarded, £25, and deemed that it was appropriate. It explained that this was because “there was no service failure on [its] part in relation to the legal proceedings”. It noted that while “there was a delay in finalising certain activities in relation to the injunction, these were primarily down to Covid-19 related conditions and challenging requirements set down by the court which were outside [its influence] or its solicitors”.
2. Its ASB and Hate Crime Policy states that it can reimburse witnesses for “out of pocket and travel expenses” however this did not include loss of earnings which was what the resident was requesting. It noted that “as far as [it] could see all travel expense claims [had] been settled and nothing [was] outstanding”.
The landlord concluded by confirming that the resident may refer her complaint to this Service if she was unhappy with its response.
In late 2021 the resident requested that this Service consider her complaint. Within her referral the resident explained that she believed that the landlord’s handling of the legal proceedings resulted in avoidable “anxiety/ distress” due to the “collapse of [the hearing]” and thus a “further 10 – 11 months of ASB” by the neighbour.

Assessment and findings

Within her complaint correspondence the resident reports that during the period after 10 February 2020, the date of the hearing, the neighbour continued to engage in ASB. While this Service understands the resident’s situation and recognises that the concerns she has reported have caused her significant distress and upset, the Ombudsman will not comment on the landlord’s handling of the reported ASB within this report. This is because as part of the legal proceedings to gain possession of the flat the court will have considered the ASB perpetrated by the neighbour and the landlord’s response. The Ombudsman notes that the landlord does not dispute that the neighbour did engage in ASB while a tenant of the property.

The landlord’s management of the legal proceedings to gain possession of the property occupied by a neighbour due to ASB and the level of compensation offered to the resident in respect of the complaint

The Ombudsman recognises that the complaint is set within the context of a much longer running ASB situation, which has included a previous determination by this Service which found failings in the landlord’s overall management of the case. Given the history and background of the complaint, it is understandable that the resident was frustrated and upset that the hearing did not go ahead in February 2020 due to an avoidable error by the landlord’s solicitor. The Ombudsman has therefore carefully considered what steps the landlord took to put matters right.
While the Ombudsman cannot definitely conclude that had the hearing gone ahead as scheduled that the court would have awarded the landlord possession of the flat in February 2020 and therefore the neighbour would have been required to vacate the property. However, based on the evidence available and on the balance of probabilities it would not be unreasonable to assume that the court would have award the landlord possession of the flat.
The landlord accepts and acknowledges that the hearing did not go ahead due to non-payment of the court fee. While it was not the landlord who failed to pay the court fee, the omission was a failure by the solicitor who was acting on its behalf. The landlord would have expected the solicitor to ensure that the relevant administration, including the court fee, was actioned. This would have been a reasonable expectation. While the Ombudsman understands that sometimes errors occur which are outside of a landlord’s control, the crucial consideration for this Service is then what the landlord does to put matters right for the resident in terms of minimising the impact and consequence of the error.
Immediately following the cancelled hearing and on 21 February 2020 the landlord wrote to the resident to apologise for the “stress and severe inconvenience” she would have experienced as a result of the cancellation. Within its correspondence the landlord also demonstrated that it was working with the solicitor to try and reinstate the hearing at the earliest opportunity as it had submitted an application to the court “for the relief of the claim being struck out”. These actions, at that time, were appropriate to acknowledge that the resident had been impacted by its solicitor’s error and to demonstrate that it was seeking to promptly progress matters. The actions were also appropriate as the landlord would have been unaware of the timeframes for concluding the case going forwards, and that the proceedings would take a further ten months to conclude.
The evidence shows that the landlord was granted possession of the property approximately 10 months following the cancelled hearing. While the Ombudsman notes that this is a protracted period of time, we also recognise that the timeframe was affected by a number of factors which were outside of the landlord’s control. This included the legal framework in which the landlord was required to operate, in addition to Covid-19 lockdown restrictions which impacted on the way the courts were able to run. The Ombudsman also notes that the timeframe was impacted by the requirement for a medical report to be produced on the neighbour at the direction of the court in summer 2020.
As part of her complaint, the resident reports that the landlord’s own actions delayed the court proceedings to gain possession of the property, most notably that the landlord failed to file and use her evidence. The Ombudsman considers that it is for the landlord and its solicitor to determine what evidence is needed and should be presented to the court for consideration. Notwithstanding this, the evidence shows that the landlord responded to the resident’s concerns to explain how her evidence was to be used and why it had not been used for a particular hearing. This included on 23 June 2020, 20 August 2020 and 17 September 2020. This was appropriate to provide reassurances to the resident that the information which she had collected, including at the request of the landlord, was not redundant.
Following a review of the evidence, the Ombudsman has not identified any evidence that the landlord mismanaged the legal proceedings following the hearing in February 2020 and therefore caused unnecessary delays. The evidence confirms that the landlord proceeded with the judgements made by the court.
The evidence shows that throughout the period under investigation the landlord engaged with the resident to provide regular updates, at least monthly, and to respond to her queries regarding the legal proceedings. The evidence shows that the landlord also sought to work with the neighbour and his support worker to find alternative accommodation while the legal proceedings were on-going. These actions were appropriate to keep the resident informed, to manage her expectations and seek to alleviate ASB coming from the flat.
Following the conclusion of the legal proceedings in January 2022 the landlord sent the resident a £25 gift card and bunch of flowers for the assistance she had provided in the legal proceedings. In the Ombudsman’s opinion the gift card and flowers were a reasonable gesture by the landlord to show its appreciation to the resident for the assistance she had provided during the legal proceedings, however the gesture was not proportionate to mitigate the overall impact she had experienced as a result of the cancelled hearing due to the actions of its solicitor. Following the conclusion of the proceedings it would have been appropriate for the landlord to have considered how the cancelled hearing had impacted on the resident and the additional time the situation was ongoing without a binding decision of the court. This will have included significant distress, inconvenience and uncertainty. The Ombudsman therefore considers that a sum of compensation is appropriate to address the failing. This is in line with the landlord’s compensation policy which sets out that compensation may be considered where its service falls below an acceptable standard
While the legal proceedings were ongoing the landlord committed to providing the resident with more information on action taken against the solicitor for non-payment of the court fee for the hearing, this included on 17 September 2020. Despite the landlord’s commitment, and the resident’s request for this information as part of the complaint procedure, the Ombudsman cannot see that the resident was provided with a comprehensive update. This is unsatisfactory as it was a commitment the landlord had made to the resident. In an update to this Service the landlord has confirmed that the solicitor did not charge it for the work undertaken in relation to the hearing or for the preparation of the subsequent new claim made.
The landlord’s decision to refuse the resident’s request for loss of earnings for declining employment in February 2020 was in line with its ASB policy which sets out that it will “reimburse witnesses for out of pocket and travel expenses”, which did not include loss of earnings. It was also reasonable as the evidence shows that the resident only made the request after the hearing was due to be heard, therefore not providing the landlord with the opportunity to see if it could make any adjustments to its witness list and her need to attend the hearing in person.
As part of her complaint the resident set out that the landlord had not reimbursed her costs for attending all legal proceedings as a witness. In responding to the complaint at stage two the landlord said that “as far as it could see” all travel claims had been settled and nothing was outstanding. In the Ombudsman’s opinion the landlord’s response was unsatisfactory. This is because the landlord’s response was not demonstrated to be given based on fact, rather just an understanding of the situation. In responding to the resident the landlord should have taken responsibility for showing that all money due had been paid. It is unsatisfactory that the landlord failed to do this. From the evidence available the Ombudsman has not been able to verify if all monies due to the resident have been paid.
As the landlord had not informed witnesses in advance that the hearing would not proceed due to non-payment of the fee, all witness turned up at the court and following the hearing the resident was required to attend five committal hearings as a witness due to the neighbour breaching the terms of the injunction dated April 2020.
In accordance with the Guide to Allowances under Part V of the Costs in Criminal Cases (General Regulations 1986), Regulation 18 provides that the allowance for financial loss for ordinary witnesses and other persons, where the period is up to 4 hours will be given an allowance of £33.50 and where the period exceeds 4 hours, will be given the maximum allowance of £67. This Guide was in effect from 1 June 2005 and reiterated in the Witness Expenses and Allowances Annex 1: Witness Expenses (Ordinary & Professional Allowances) document updated in January 2022. As such, orders will be made to reflect the above failings.
It was appropriate that the landlord responded to the resident’s concerns regarding future tenancies at the flat by confirming that it was seeking to relet the flat sensitively having regard to the events occurring during the neighbour’s tenancy and by working closely with its Letting Team. The Ombudsman notes that while the landlord may seek to relet the flat sensitively, it cannot guarantee that no future ASB will occur from the property.

The landlord’s complaint handling

The complaint chronology demonstrates that the landlord’s complaint handling was unsatisfactory. Both the landlord’s stage one and stage two responses were provided significantly outside of the 10 (stage one) and 20 (stage two) working days prescribed by the Ombudsman’s Complaint Handling Code; a delay of approximately 30 working days at stage one and approximately 4.5 months at stage two. The evidence further shows that the stage two response was only provided following intervention from the resident’s MP and this Service. This is unsatisfactory and will have resulted in uncertainty, inconvenience and distress to the resident in addition to feeling that her concerns were not being taken seriously. It was also unsatisfactory as the purpose of a formal complaint procedure is to address complaints at the earliest stage.
The landlord did not acknowledge, apologise or offer redress at either stage of the complaint procedure in recognition that its responses were delayed. This is unsatisfactory. The Ombudsman considers therefore that a sum of compensation is due.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
1. Maladministration by the landlord in respect of its management of the legal proceedings to gain possession of the property occupied by a neighbour due to ASB and the level of compensation offered to the resident in respect of the complaint.
2. Maladministration by the landlord in respect of its complaint handling.

Reasons

The landlord’s management of the legal proceedings to gain possession of the property occupied by a neighbour due ASB and the level of compensation offered to the resident in respect of the complaint

The landlord’s actions in relation to the following matters was reasonable and appropriate:
1. Its management of the legal proceedings to gain possession of the flat following the cancelled hearing. The evidence shows that the landlord acted in accordance with the framework set out by the court in addition to engaging with the resident on the matter providing updates and responses to her queries.
2. Its decision to not pay loss of earnings. The landlord’s decision was in line with its policy on ASB and Hate Crime Policy.
3. Its response to the resident’s request to relet the flat sensitively. The landlord provided reassurances that it was working to relet the property sensitivity taken into account the history of the previous tenancy.
However following the cancelled hearing, due to non-payment of the legal fee by its solicitor, the landlord failed to offer appropriate redress to the resident. The landlord’s apology alone was not proportionate to demonstrate the impact of the cancelled hearing on the resident which included distress, inconvenience, and uncertainty in addition to the missed opportunity in bringing the matter to an earlier close with a binding decision of the court.
Further it was unsatisfactory that the landlord failed to:
1. Demonstrate that it had paid the resident all out of pocket expenses she was entitled to for court attendances.
2. Provide an update to her on the action it had taken it with its solicitors for the non-payment of the court fee which resulted in the cancelled hearing, as it committed to doing so.

The landlord’s complaint handling

The landlord’s handling of the complaint was unsatisfactory as it significantly delayed in responding to the complaint at all stages of its complaint procedure. The landlord did not acknowledge its failings, and the therefore the impact on the resident, in responding to the complaint.

Orders

The landlord should, within four weeks of the date of this determination, provide a written apology to the resident from its Chief Executive to acknowledge that it failed to fully recognise the impact of the cancelled hearing on the resident, in addition to its poor complaint handling.
The landlord should pay the resident a total of £1,250 compensation, within four weeks of the date of this determination, comprising:
1. £1000 for the inconvenience, distress and uncertainty she would have felt as a result of the cancelled hearing.
2. £50 for not demonstrating that it had paid the resident all out of pocket expenses that she was due and therefore that it had acted fairly.
3. £200 for complaint handling.
The landlord should write to the resident, within four weeks of the date of this determination, setting out what action it has taken with the solicitor for failing to pay the court fee within time.
The landlord should pay the resident the ordinary witness allowance for court attendance and committal hearings at the following rate:
1. £67 for attendance of the cancelled court hearing as it cannot be known how long the hearing would last.
2. £67 for each committal hearing attended as a witness, if attendance was in excess of 4 hours. Should the landlord be able to evidence attendance did not exceed 4 hours, then £33.50 for those committal hearings should be paid.
The landlord should consider this payment structure for all ordinary witnesses it relied on at the hearings.
The landlord should undertake a review of this case to consider whether it needs to take further action to provide appropriate remedies to other tenants who were party to the legal proceedings. The landlord should provide an update of its review to the Ombudsman within four weeks of the date of this determination.