Bromford Housing Association Limited (202001208)

REPORT

COMPLAINT 202001208

Bromford Housing Association Limited

7 April 2021

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:
   1. reports of anti-social behaviour (ASB) and harassment;
   2. associated formal complaint.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the 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.
3. The correspondence refers to the resident’s disagreement with the local authority’s decision not to take action on noise nuisance complaints. The actions of the local authority are included in this report in so far as they relate to the landlord’s investigation of ASB and the evaluation of noise monitoring evidence, but this Service is unable to comment on the merits of the local authority’s actions and decisions, as these matters fall within the jurisdiction of the Local Government and Social Care Ombudsman.
4. This is in accordance with paragraph 39(m) of the Scheme which states that the Ombudsman will not consider complaints which fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body. As a result, this report does not address the reasonableness of the local authority’s actions and, instead, focuses on the landlord’s investigation of, and response to, the resident’s reports of ASB and harassment.

Background and summary of events

5. The resident reported threats from her neighbour and damage to her fence. And indicated that she wished to move property due to the harassment. In May 2020, the police advised the landlord that there was insufficient evidence for it to take action on these allegations. The landlord wrote to the resident on 21 May 2020, confirming the police’ position and advising that it did not arrange management transfers for ASB issues but would instead seek to address the ASB. It explained that, if she wished to move, she would need to consider a Home swap, register with the local authority for housing under its schemes, or consider private renting. 
6. On 11 June 2020, the resident reported concerns about one neighbour’s CCTV and another neighbour harassing her. The landlord investigated the CCTV issue with the neighbour and advised that permission was not required for CCTV that was not affixed to the property as this did not amount to a structural change requiring authorisation. It also confirmed that CCTV that only recorded images from within a resident’s own property was permissible.
7. The resident contacted the landlord on 23 June 2020 to request noise recording equipment due to noise from her neighbour and she was advised that there was the possibility of a noise monitoring app that could be used on her phone. She confirmed to the landlord that this had already been used but the local authority had concluded the noise complained of was everyday noise. The resident was unhappy that the landlord did not supply anything further and raised a complaint with the local authority about the landlord’s response and lack of support with ASB and noise complaints.
8. The resident wrote to the landlord on 15 July 2020, reporting recent incidents with her neighbour and requesting its intervention. In the landlord’s response of 21 July 2020, it explained that it would not intervene in everyday low-level interactions between neighbours but would consider and investigate ASB. It advised her to complete incident log sheets to provide evidence for it to consider and asked if she would like some sent to her.
9. Following further contact from the resident the landlord wrote to her on 24 July 2020, repeating its advice that she keep a log of incidents. It also confirmed that past monitoring had only confirmed daily living noise which did not amount to ASB upon which it could act. Finally, it offered a referral for support in relation to matters that fell outside its remit, which might assist in her relationship with her neighbour. 
10. The resident contacted the landlord on 13 and 14 August 2020, complaining about the lack of action on her ASB complaints and making further noise reports. In the landlord’s response of 17 August 2020, it confirmed the details of its ASB Policy, reiterated that it would only become involved in a neighbour dispute if it amounted to ASB, concluded that the resident’s recent complaints had been fully investigated and did not reach the threshold of ASB, and assured her that if she continued to provide evidence of noise nuisance her reports would be investigated.
11. Following further contact the landlord wrote to the resident on 29 September 2020, providing a copy of its complaints policy and informing her that all of her complaints had either been dealt with or were still under investigation. It identified that the correct process for investigating ASB complaints had been followed. The resident asked for confirmation of whether this was the landlord’s final response so that she could consider her options and the landlord confirmed that it was. 
12. On 8 October 2020 the landlord wrote to the resident and invited her to a meeting at which she would be asked to sign an Acceptable Behaviour Contract. It explained that this was due to concerns about the resident’s ASB and reporting of others.
13. The landlord reviewed the results of noise monitoring in conjunction with the local authority in October 2020. The local authority had concluded that the noise captured did not amount to ASB and informed the landlord that it would not be taking any further action.
14. The landlord and the police visited the resident to discuss her complaints. The landlord advised that it would not be taking action in respect of everyday noise which did not meet the threshold of ASB. The resident’s desire to move property was also discussed and she was advised to register with the home swapper service.
15. The resident wrote to the landlord and local authority on 12 November 2020 providing details of legal advice that she had received from the local law centre. This advised her of her options to pursue judicial review of the local authority’s decision not to take action against her neighbour and of her right to pursue a private nuisance/harassment claim against her neighbour. She was advised to seek independent legal advice should she wish to pursue these options.
16. The local authority discussed her noise nuisance complaints with the resident on 12 November 2020 and wrote to her to confirm that it had made arrangements for her to access the noise recording app for a two-week period. The landlord wrote to the resident the following day to confirm that, upon receipt of this further noise monitoring evidence for the period ending 26 November 2020, it would review the complaint. It reaffirmed its view that all of the resident’s complaints to date had been fully investigated and that the evidence that she had previously provided did not amount to ASB.
17. The landlord advised the Ombudsman that the resident’s complaints were dealt with by its Localities Department rather than the complaints team. It explained that the reason for this was due to the depth of the ASB procedure and the ongoing nature of liaison with the police.

Policies and procedures

18. The landlord’s complaints process states that:
    1. The target time for responding to a Stage 1 complaint is 7 working days. The response will include any actions the landlord plans to take to put the matter right and clear timescales as to when the actions will be completed.
    2. If the resident is not satisfied with the outcome at Stage 1 they have a right to request their complaint is reviewed at Stage 2. This consists of review by a senior manager along with a customer member of the Locality Influence Network. They may arrange to meet the resident who can bring along a friend or advocate for support. The target time for Stage 2 response is 14 days. The outcome of the review will be communicated in writing.
19. The landlord’s ASB policy states that:
    1. ASB is defined in line with the definition in the Anti-Social Behaviour, Crime and Policing Act 2014. This relates to conduct that has caused or is likely to cause harassment, alarm or distress and conduct capable of causing nuisance or annoyance to a person. 
    2. The landlord will not carry out investigations into actions which are not a breach of tenancy or which amount to people not being pleasant to each other, but which are not sufficiently serious to warrant its involvement.
    3. The landlord’s approach is preventative with the aim of stopping behaviour before it escalates.
    4. The landlord works with other agencies such as the police and local authority to tackle ASB. Action taken for ASB can include the use of Community Protection Orders, warnings and Acceptable Behaviour Contracts or Agreements.

Assessment and findings

ASB

20. In accordance with the terms of the tenancy agreement and the landlord’s ASB policy, the landlord is required to take action on reports of ASB. It was therefore necessary for the landlord to investigate the resident’s reports of ASB and to take action to resolve any issues it identified. The correspondence shows that the landlord considered the resident’s complaints and invited her to provide evidence of ASB by the use of incident logs and diary sheets. This evidence was considered by the landlord.
21. The landlord took various steps to investigate the resident’s reports of ASB including: raising concerns with the alleged perpetrator (and liaising with both the neighbours and the resident); liaising with the police; liaising with the local authority; providing guidance on acceptable behaviours; and advising the resident on her housing options should she wish to move.
22. These actions demonstrate that the landlord properly considered the resident’s complaints and was mindful of the terms of its ASB Policy (see paragraph 19 above).  It liaised with the local authority over noise monitoring in addition to considering the resident’s own noise monitoring evidence. The assessments by both the landlord and the local authority concluded that the noise recordings did not provide evidence of ASB but instead amounted to daily living noise that did not reach the threshold of ASB for which the landlord would take action. 
23. The landlord reached the view that there was insufficient evidence for it to take enforcement action against the neighbours. It was appropriate for the landlord to consider the professional viewpoint of its staff and the advice of the local authority and police in reaching this decision. Whilst it is understandable that the resident may be frustrated by this decision, this was a view that the landlord was entitled to take in the circumstances. Further, action to tackle ASB and/or threaten a resident’s tenancy should only be taken where it is considered appropriate and proportionate, and the evidence in this case does not support such robust action.  
24. It is clear from the correspondence that there is evidence of a dispute between neighbours with allegations and counter-allegations having been made. The evidence shows that the landlord has investigated these and has provided both the resident and her neighbour with advice on the limits and nature of its ASB powers and the nature of its investigations. At several points, the landlord took steps to keep the resident informed of the outcome of its investigations and to advise where no further action would be taken. This does not prevent the resident from making further reports of ASB and the landlord has confirmed that these would be investigated.

Complaints handling

25. The landlord has confirmed that the resident’s complaint was not formally progressed through its complaints procedure. Instead, her concerns about the landlord’s handling of her reports were dealt with as part of the investigation of ASB complaints by its local team. The nature and level of the communications between the resident and landlord were not always clear in distinguishing between reports of ASB and complaints about the landlord’s handling of those reports. However, the Ombudsman is satisfied that the resident did raise concerns about the landlord’s handling of the reports of ASB (as distinct from the reports themselves) and this should have been considered through the landlord’s complaints procedure separate from the ASB investigation. Without this separate consideration the resident was caused anxiety and uncertainty over whether the landlord’s actions were being appropriately reviewed by staff who were independent of involvement in the ASB complaint investigation.
26. The Ombudsman’s Dispute Resolution principles indicate that landlords’ complaints handling procedures should be user focused and demonstrate that their purpose is to resolve disputes and restore the residents’ position in the event of anything going wrong. The Ombudsman’s Complaint Handling Code makes it clear that complaint responses should explain what a resident may do if they remain dissatisfied with a response. That is to say, ask for escalation or refer the complaint to this Service.
27. The landlord’s response of 29 September 2020 was identified as its final response to the complaint. However, it does not appear that the resident was informed of her options to pursue the matter separately through the complaints process or to have a review of the landlord’s actions in accordance with its complaints policy. This caused the resident anxiety and uncertainty over what action she might take to further pursue her complaints other than by way of complaint to the Ombudsman.
28. While the evidence indicates that the ASB reports were properly investigated and outcomes communicated, the failure to progress the resident’s complaints through the formal complaints process was an error. This has caused the resident uncertainty and distress over whether and how her complaints about the landlord’s actions were being progressed.

Determination (decision)

29. In accordance with paragraph 54 of the Scheme there was:
    1. no maladministration by the landlord in respect of its consideration of the reports of ASB.
    2. service failure by the landlord in its handling of the formal complaint.

Reasons

30. The landlord acted on the resident’s reports of ASB and followed its policy by providing the resident with opportunities to provide evidence of the ASB complained of. This evidence was considered by the landlord and the correspondence shows appropriate investigation and liaison with other agencies and evidence of communication between the landlord and resident to keep her updated on the progress and outcome of its investigations. 
31. However, there was a failure to consider the resident’s formal complaint through the landlord’s complaints procedure and to provide her with an opportunity for her complaint to be reviewed.

Orders

32. The Ombudsman orders the landlord to pay the resident £50 for the failure to consider the complaint in accordance with its complaints policy. 

Recommendations

33. The Ombudsman recommends that the landlord should, if it has not already done so, set out timescales for any further review of the ASB case and the resident’s options for review through its complaints procedure.