Clarion Housing Association Limited (202215486)

REPORT

COMPLAINT 202215486

Clarion Housing Association Limited

6 October 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

1. The complaint is about the landlord’s handling of the resident’s reports of anti social behaviour (ASB) and noise disturbance.

Background and summary of events

Background

2. The resident is an assured tenant of the landlord. She occupies a three bedroom property with her partner and their children. The resident has raised the complaint with this Service, however, many of the reports to the landlord referred to in this report were made by her partner, with whom she holds a joint tenancy. For clarity, throughout this report references to ‘the resident’ will include the resident and her partner.

3. The landlord has an anti–social behaviour (ASB) policy which describes ASB as taking many forms ranging from noise nuisance, criminal damage, and verbal. The policy says that the landlord will adopt a supportive approach and will be flexible in its approach to managing incidents, working in partnership with both internal and external partners. The policy also states that the landlord seeks to balance enforcement action and intervention with prevention.

4. The landlord’s anti-social behaviour policy says that reports around ball games, disputes over boundary issues, one-off parties, actions which amount to people being unpleasant (such as staring at people), parking and other neighbourhood issues are not generally considered to be ASB. However, the policy goes on to state that incidents such as those listed above, if deliberate, persistent and found to be having a harmful impact on a person, will be investigated as ASB.

5. The landlord operates a neighbourhood management policy which says that it will work with residents and external agencies to reduce irresponsible parking, parking–related disputes and resolve access problems for emergency and service vehicles.

6. The landlord also has a safeguarding policy which states that it will work in partnership with social services and the police to make vulnerable adults and children safe.

7. At the time of the complaint, the landlord operated a two stage complaints procedure. It aimed to respond to stage one complaints within 20 working days of the complaint being logged. Where complaints were escalated, it would acknowledge this within 10 working days and respond within 40 working days.

Summary of events

8. The resident had made reports to the landlord about anti-social behaviour in the neighbourhood from March 2019. The reports related to children in the area playing ball games and causing damage to vehicles and properties when the balls hit fences, doors, windows and cars. The resident told the landlord that when balls were kicked into his garden the children were climbing over his fence into the garden to retrieve the ball. By way of summary, between March 2019 and October 2021, the resident also reported a high number of incidents of nuisance behaviour from their neighbours which included:

Children riding bikes outside his window and up their garden path;
Neighbours having parties where loud music was played and where they reported that some of those in attendance were smoking cannabis;
Dogs barking during the day and at night;
Cars being parked across their drive;.
Litter being left on their property;
Individuals in cars playing loud music in the early hours of the morning.

9. In response to the resident’s reports, the landlord took the following action:

It undertook unannounced visits to the resident’s street to observe whether reports of anti-social behaviour could be witnessed.
It met with the resident at home to discuss their concerns.
It visited neighbours, who were alleged to have been involved in anti-social behaviour, to investigate the resident’s reports. It also visited other residents in the neighbourhood to see if they were able and willing to corroborate the resident’s reports.
It sent letters to all residents in the street reminding them that their children be mindful of the impact of nuisance on other residents. The landlord arranged follow up appointments to visit the resident at home thereafter.
It purchased soft balls, that were delivered to all properties on the street, for the children to use instead of leather footballs or basketballs.
It issued written warnings to neighbours, where there was sufficient evidence of their involvement in ASB. The warnings advised that should the behaviour complained of persist, the landlord would consider enforcement action.
It made enquiries of the Council about the resident having permission to install extra fencing around the property and advised the resident accordingly.
It explored with the Council whether it would be possible to put up ‘no ball games’ signs on the street.
It referred some of the reports to the police and the Environmental Health Team at the Council.
It referred the matter to an external consultancy organisation for advice as to any further action it could take.
It arranged for the resident and a neighbour to have mediation sessions with an independent professional following which a mediation agreement was drawn up.
It consulted with its legal advisers to determine whether the evidence of anti-social behaviour provided had met the threshold for legal proceedings such as an injunction order or possession proceedings.

10. The resident was also asked by the landlord to complete diary sheets detailing incidents of anti-social behaviour. Where the reports he had made related to criminal behaviour or behaviour that could constitute a statutory nuisance he was signposted to the police and the Council’s Environmental Health Team.

11. In October 2021, the resident reported to the landlord that a neighbour had shouted abuse at them and made a physical threat towards them. The resident confirmed that they had reported the incident to the police. The landlord advised that it would issue the neighbour with a warning. Unscheduled visits by the landlord to the street took place on 26 October and 1 November 2021 but no anti-social behaviour was observed. With no further incidents reported, the landlord agreed with the resident that the case would be closed.

12. The resident made some reports to the landlord in December 2021 of neighbours arriving home at 3am and making noise by sounding their car horn and slamming car doors. The landlord investigated but was unable to corroborate the reports so the case was closed in January 2022.

13. Between March and June 2022 the resident reported to the landlord that children were throwing things and making noise in the street in the early hours of the morning. The landlord advised the resident that it was making attempts to contact the neighbours involved to raise this with them.

14. On 27 May 2022, the resident reported to the landlord and the police that their shed had been broken into and their son’s bike had been stolen. The following day they reported that the neighbour’s children were playing football opposite their house and entering the garden. The resident said that the incidents were having a detrimental impact on their mental health. On 1 June 2022, the landlord confirmed with the resident that the police would need to investigate the theft but that it would ask for the resident to keep an incident diary and it would speak to other neighbours to see if they had witnessed the behaviour reported.

15. On 5 June 2022, the resident reported that their wire fence and garden had been trampled and plants damaged by children coming on to their property. They asked whether they could be considered for a move out of the area if no further action was forthcoming. On 7 June 2022, the landlord responded and confirmed that it had undertaken enquiries the outcome of which was that it was not able to prohibit ball games on the street. However, the Council would be contacted for any further advice about how to address the issue. The resident was provided with information about how to look for alternative properties.

16. On 8 June 2022, the resident made further reports of children kicking balls against their fence. They were asked to identify the children involved so that the families could be contacted. The landlord agreed to write to residents on the street to remind them that children should be supervised and that balls should not be kicked against fencing. On 9 June 2022, a community trigger meeting was held involving the resident, the landlord, the police and the local authority and an action plan was agreed with the parties in attendance.

17. Between 13 and 17 June 2022, the resident sent a number of emails to the landlord to report that children were kicking balls at their fencing and sitting on their fence. On 15 June 2022, the landlord undertook a review of the case and determined that legal proceedings were not actionable at that time. This was because the evidence did not support possession proceedings or an injunction as a court would need to be satisfied it was reasonable and proportionate to make an order. The landlord advised the resident that the situation would be kept under review.

18. In June 2022, the landlord was subject to a cyber-attack which impacted its IT systems. As it had received no further reports from the resident during this time it was decided that the ASB case would be closed.

19. On 17 August 2022, the resident asked to make a formal complaint as they was not satisfied that the landlord had done enough to address the problem of anti-social behaviour from their neighbours.

20. On 26 August 2022, the landlord issued its stage one complaint response:

It apologised for the delay in responding as this was due to the cyber-security incident which had impacted its systems.
It outlined the actions it had taken to date to address the anti-social behaviour complained of which included:
1. Providing soft balls to all households in the immediate neighbourhood.
2. Issuing tenancy warnings to neighbouring households which had the effect of stopping much of the anti-social behaviour for up to two years.
3. Engaging in the ‘community trigger’ process with the local authority antisocial behaviour team and the local police.
It had decided to issue another tenancy warning to the neighbours involved and the resident had said they were happy for the landlord to proceed with this action.
The resident had been informed that it could not take immediate legal action against households involved as it would need to show to the court that its actions were reasonable and proportionate.
The resident had agreed to the following actions going forward:
1. To enter into a good neighbour agreement and mediation with neighbours if they were in agreement with this.
1. The landlord would provide soft balls again to residents in the locality and ask that their children use them when playing in the street instead of leather footballs or basketballs.
2. The landlord would continue to undertake joint patrols of the area with the Council’s anti-social behaviour team and the police.
3. The landlord would contact the police in relation to recent reports of drug offences and verbal abuse.
4. The landlord would meet with the local authority anti-social behaviour team and the police in September 2022 and the outcome would be reported to the resident.
5. The resident was encouraged to continue to record incidents using the diary sheets provided.
The landlord advised that it had not identified any service failures so the resident’s complaint was not upheld.

21. On 18 September 2022, the resident asked that their complaint be escalated to stage two as they were unhappy with the proposal of mediation as they felt that they had been ‘bullied’ into agreeing to it. The resident said that the landlord had told them that if they did not agree to mediation it would go against them and that since this had been put to the neighbour, the problems had escalated.

22. On 14 October 2022 the landlord issued its stage two complaint response:

It considered that the actions it had taken in response to the residents reports of anti-social behaviour were proportionate and in line with its policy.
Following reports to the police and the Council, no criminal case had been pursued by the police and the Council had not been able to establish that the behaviour complained of constituted a statutory nuisance.
The landlord’s approach had initially been successful and had resulted in a reduction in the number of reported incidents for two years.
The community trigger process engaged a review of the case and it was determined that agencies were satisfied with the actions that had been taken to resolve the issues.
The landlord had spoken with the relevant officer who disputed the resident’s claim that they had been informed that it would go against them if they did not agree to mediation. Without a recording of the conversation it could not be established what was said, however the landlord did note that in any legal action it would need to establish to the court that all reasonable steps had been taken before issuing proceedings.
The landlord confirmed that the neighbour concerned had not been provided with photographic evidence that their child had engaged in the behaviour complained of as they had confirmed their involvement without the need for evidence.
The landlord had also sought further legal advice from its own solicitors who had stated that they did not consider the threshold for legal enforcement action either by injunction or possession proceedings had been met to date but that this could be kept under review. The landlord reiterated that it would be a decision of the courts as to whether to grant an order against a neighbour and therefore the evidence in support of the landlord’s application would need to be sufficiently robust.
The landlord confirmed that the following actions were being taken going forward:
1. Mediation had been arranged and the resident and their neighbour were engaging with it;
2. A sound test would be undertaken to evaluate the level of noise within the resident’s home when ball games were played, to determine if it could be concluded that it constituted a statutory nuisance such that it would warrant legal action;
3. It had agreed that the resident could install a fence in their property, but permission would be dependent on the landlord being satisfied that the proposed fencing complied with the landlord’s policies and procedures and with any other planning obligations, rules or regulations. This was not currently progressing as a result of the cyber-attack but this would be given due consideration once its IT systems were restored;
The landlord concluded that the resident’s complaint had not been upheld as it did not agree that further action should have been taken against the resident’s neighbours on the basis of evidence provided to date.

23. The resident subsequently referred their complaint to this Service for investigation.

Post complaint

24. On 14 October 2022, the landlord wrote to the resident to outline what it had done in response to their reports. It included the relevant section from its anti-social behaviour policy which stated that the resident’s reports would not usually constitute anti-social behaviour unless the actions were persistent and deliberate and were causing harm to the resident or his household. In addition to the actions summarised in the landlord’s stage two complaint response, the landlord confirmed that:

Officers had attended the resident’s home to carry out a sound test on 7 October 2022 but had concluded that the noise from ball games was not excessive.
It added that other residents had been consulted and they had said that they were not concerned by noise from children playing football.
The landlord confirmed that it would keep the matter under review but that the day-to-day noise of children playing would only be considered a nuisance if the activity was for prolonged periods of the day or evening or there was the constant deliberate kicking of a football at the resident’s fencing.
The resident was advised that there was insufficient evidence to take formal action regarding vehicles in the street playing loud music as incidents had been infrequent and noise levels could not be captured. The resident was signposted to the council to request the installation of noise equipment should there be further similar incidents.
In relation to the resident’s reports of cannabis use in the locality, they were informed that the landlord had carried out ad-hoc visits with the police to the street but had not noted that cannabis was being used. The resident was encouraged to contact the landlord if they were aware of cannabis being used and, where available, an urgent visit would be arranged by an officer.

25. In November 2022, the landlord recorded that enquiries were being made about improvement funding to plant hedging around the fencing in order to act as a natural barrier to prevent balls from hitting fences.

Scope of the investigation

26. It should be noted that all of the evidence provided by both parties has been considered. As such, whilst this report may reference some historical events for the purposes of context, the scope of this investigation will be limited to consideration of the landlord’s handling of the various ASB reports from October 2021 onwards up until the final complaint response on 14 October 2022.

27. The Ombudsman understands that the resident continued to report similar issues with their neighbours to the landlord after this complaint had been closed and the matter referred to this Service. In the interest of fairness, the scope of this investigation is limited to the issues raised during the resident’s formal complaint. This is because the landlord needs to be given a fair opportunity to investigate and respond to any reported dissatisfaction with its actions prior to the involvement of this Service. Any new issues that have not been subject to a formal complaint can be addressed directly with the landlord and progressed as a new complaint if required.    

Assessment and findings

28. It is evident that this situation has been distressing for the resident and their family. The resident has detailed how the ongoing issues they reported had impacted on their mental health and wellbeing and that of their household. It may assist to first explain that the Ombudsman’s role is not to decide if the actions complained of amounted to anti-social behaviour, but rather, whether the landlord dealt with the resident’s reports reasonably and with reference to its published policies and procedures.

29. It is noted that there has been a very significant amount of correspondence between the resident and the landlord. Whilst the resident’s dissatisfaction with the landlord is duly noted, the report will not be addressing each and every specific issue or incident. Rather, the Ombudsman has carefully considered all the available evidence and this report will take a view on the landlord’s overall handling of the matter.

30. Under the landlord’s anti-social behaviour policy, it has a responsibility to investigate reports of anti-social behaviour. Its policy outlines the steps it can take to collate and investigate incidents of anti-social behaviour. This includes logging all reports of ASB and monitoring outcomes and dealing sensitively with those reporting ASB. The policy also outlines the interventions the landlord can use to deter or prevent ASB including mediation, tenancy support, warning letters and where appropriate, legal action.

31. The landlord’s ASB policy shows that the incidents reported by the resident would fall short of what they would define as ASB and therefore would not meet the threshold for an ASB investigation. Nevertheless, the landlord took into account the impact the behaviour was having on the resident and their household and concluded that it should investigate their reports. This was an appropriate use of the landlord’s discretion and demonstrated that it was committed to reducing the impact of the reported behaviour on the resident.

32. The landlord responded in a timely way to the resident’s reports. It engaged with the resident in obtaining and reviewing evidence. It communicated clearly with the resident, providing details of the actions it sought to take and the timescales for doing so. It provided regular updates to the resident which would have provided reassurance to them that matters were in hand. This Service considers that the landlord communicated effectively with the resident.

33. The landlord arranged for staff to undertake unannounced visits to the street to observe whether neighbours were engaging in nuisance behaviour. Visits were also made to neighbours to discuss the resident’s allegations and to investigate whether other households were impacted by the alleged behaviour. The landlord’s steps to investigate the resident’s reports were in line with its policy.

34. The landlord correctly signposted the resident to other agencies such as the police and environmental health where the behaviour complained of fell outside of its remit for enforcement action. It worked collaboratively and in partnership with these agencies in taking the matter forward, both in undertaking visits to the resident and their neighbours but also in participating in the community trigger meeting.

35. The landlord was proactive in looking for solutions to resolve the issue such as liaising with the Council about permission for the resident to install fencing, obtaining advice about the viability of putting signs up prohibiting ball games in the area and providing residents with soft balls for their children to use rather than basketballs or leather footballs. It also looked into the possibility of obtaining funding to plant hedging to act as a natural barrier to prevent balls from hitting the resident’s fence. In order to satisfy itself that it had explored all options, it referred the matter to a specialist ASB consultancy for intervention. It also sought advice from its legal team about the prospect of success of legal proceedings based on the evidence it had collated. The landlord’s actions showed that it had taken a proactive, thorough, and solution-focused approach to the issues raised.

36. With the agreement of the resident, the landlord referred the matter to mediation. This was an attempt to resolve the issue between neighbours without the need for formal action and was in line with the landlord’s ASB policy. On two occasions, the resident and a neighbour positively engaged with the mediation process and consequently there was a reduction in the number of reports of anti-social behaviour from the resident. In the complaint escalation request, the resident had said that they felt bullied into engaging with mediation and that they had been given inaccurate information about evidence sharing. This Service cannot make a finding in relation to this aspect of the complaint as it concerns different accounts of a particular conversation between the resident and an officer that was not recorded. This was, however, addressed by the landlord in its stage two complaint response where the landlord acknowledged the resident’s concerns about this issue and it demonstrated that it had investigated those concerns appropriately.

37. This Service understands that the resident may have been frustrated with what they may perceive as the landlord’s reluctance to pursue enforcement action. Where legal action could result in the loss of a person’s home or liberty, a court will need to be satisfied on the evidence that it is reasonable, in all the circumstances of the case, for an order to be made. What is proportionate and reasonable will depend on the nature of the behaviour complained of. Where the behaviour relates to low level ASB, the court would require a very high threshold of evidence. It would look at, amongst other things, the steps a landlord had taken to remind a perpetrator of their tenancy obligations, the resident’s personal or family circumstances including any vulnerabilities they or other household members may have, the perpetrators personal or family circumstances, the significance of the behaviour complained of, its frequency and its impact.

38. A landlord must also satisfy a court that it had pursued and exhausted all other available actions and that proceedings are a last resort. The landlord was entitled to rely on the advice of its legal team who had determined that the evidence provided did not justify legal action. It would not be an appropriate use of the landlord’s resources to pursue legal action which its legal team had concluded had, on the evidence, a low prospect of success.

39. The resident may want further action to be taken against their neighbours but, looking at the nature of the reports, the Ombudsman is satisfied from the evidence it has seen that the landlord responded in a reasonable manner in the circumstances.

40. With regards to the allegations of the neighbour being abusive towards the resident, given the limited independent evidence that was available to verify the allegations, the landlord responded appropriately by speaking with both parties. But clearly, the lack of enforcement action against the neighbour was a cause of frustration to the resident.

41. The resident and their family have been disturbed by the actions of their neighbours and the Ombudsman acknowledges the impact the incidents reported by the resident have had on them and their family. However, the landlord’s response to the resident’s reports were reasonable and the landlord acted in accordance with its obligations, including its policies and procedures.

Determination (decision)

42. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration by the landlord in its handling of the resident’s reports of anti –social behaviour and noise disturbance.

Reasons

43. The landlord responded in a timely way to the resident’s reports of anti-social behaviour. It acted in accordance with its policies and procedures and was proactive in exploring other ways to address the issues. It was appropriate that the landlord looked to exhaust other options before considering enforcement. Ultimately there was a lack of conclusive evidence that the issues reported reached the threshold of anti-social behaviour for which the landlord could successfully pursue enforcement action.