Catalyst Housing Limited (202107564)

REPORT

COMPLAINT 202107564

Catalyst Housing Limited

27 November 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 concerns how the landlord handled the resident’s reports of antisocial behaviour (ASB).

Background and summary of events

Background

2. The resident was an assured tenant of the landlord, which is a housing association, from May 2019 until August 2021. The resident’s former property is a house.
3. The landlord’s ASB policy defines antisocial behaviour as:
   1. Conduct that has caused, or is likely to cause harassment, alarm or distress to any person.
   2. Conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.
   3. Conduct capable of causing housing-related nuisance or annoyance to any person
4. The policy states that the landlord will aim to respond to ASB reports within one working day and will prioritise reports it considers high risk (hate crime, domestic abuse, violence, risk of harm).
5. On receipt of a report, the landlord will undertake a risk assessment and agree an action plan with the complainant. While the case is open, the landlord commits to keeping the complainant update on the progress of the case and that it will work in partnership with outside agencies and statutory services such as the police, local authorities and registered providers.
6. When ASB has been proven, the policy describes the tools and powers available to the landlord. These range from early intervention, good neighbour agreements and mediation in order to reach an acceptable resolution; up to absolute ground for possession when serious ASB has been found.
7. The ASB policy states that the landlord will close an ASB if the case has been successfully resolved or if no further action can be taken. The circumstances where the landlord will take no further action are described by the policy as:
   1. “We will not take action where following investigation there is insufficient evidence to take the case further. Where the main responsibility and power to deal with ASB lies with another service such as the Police or Local Authority we will support and work with them and our actions will be guided by their findings and outcomes.
   2. We will promote the view that everyone has the right to their own chosen lifestyle providing this does not impact on the quality of life of others. We will not usually take action where a complaint concerns the behaviour that results from different lifestyles, or which would not generally be considered to be unreasonable.
   3. We will only investigate noise nuisance where the noise is frequently excessive in volume and durations or occurs at unreasonable hours, typically but not always between 11pm and 7am.
   4. We will encourage residents to take responsibility for solving minor personal disputes between themselves where appropriate and to involve us only where a resolution has not been possible.”
8. The policy goes on to state that it will contact the complainant before it closes the case, that a letter will then be sent out explaining its reasons why it closed the case and that it will then contact the complainant after three months to confirm that there have been no further issues.
9. The landlord operates a two-stage complaints process. When a complaint is received, the landlord aims to provide an immediate resolution to the complainant. If that is not possible, a complaint response will then be sent. If the complainant is dissatisfied with the response, they can request an escalation of the complaint to the next stage. The landlord will then undertake a review of the complaint and provide a stage two response within ten working days. This will be the landlord’s final response to the complaint.
10. The complaint policy does not provide a specific deadline for when the landlord will provide the stage one response but does state that it will write to the complainant to inform them of what the timescale will be and when the response will be sent. 

Summary of events

11. The landlord’s ASB case notes state that on 14 and 15 September 2020 the resident reported incidents of noise nuisance, drug use and the lighting of bonfires from her neighbour’s property. The landlord opened an ASB case and it called the resident on 16 September 2020 to discuss the matter. The resident informed the landlord that she had also informed the local authority’s environmental health department (EH) and the police. The landlord provided diary sheets for the resident to use to record any further incidents of ASB.
12. The resident wrote to the landlord on 21 September 2020. She acknowledged the receipt of diary sheets and provided photographs of the bonfire. She also informed the landlord that the noise nuisance had reduced.
13. On 10 and 11 October 2020 the resident reported incidents of intimidating behaviour, drug use, the spraying of cleaning chemicals out of windows and the lighting of bonfires from members of the neighbour’s household. The landlord informed the resident that it would require evidence of drug use before either it or the police would be able take further action. It suggested mediation as a method for resolving the issues between her and her neighbour.
14. The landlord wrote a letter to the neighbour on 21 October 2020 regarding the lighting of bonfires, noise nuisance and the smell of cannabis from the property. It provided its guidelines on tenants lighting bonfires, informed them that the landlord would be monitoring the issues raised and visiting the area. The landlord also informed the neighbour that if evidence of drug use was found, it would take action against them with regards to their tenancy.
15. On 26 November 2021 the police wrote a letter to all residents regarding reports of the smell of cannabis around properties in the local area. They reminded the residents that possession of cannabis was an illegal offense and that police would be conducting regular patrols in the area.
16. The resident wrote to the landlord on 27 November 2020 to inform it that she did not believe that mediation would be suitable. She stated that she would continue to report drug use to the police, and noise nuisance and bonfires to EH. She noted that she felt the landlord was “washing its hands” of the case. The landlord replied and explained that without any evidence it was unable to take action and as the resident had declined mediation, it could not offer any further support. It stated that it would be closing the ASB case, but that it would reopen it if the resident agreed to mediation or corroborating evidence of the allegations were found.
17. The landlord wrote to the resident on 4 December 2020 to confirm that the ASB case had been closed.
18. An internal landlord note added on 4 December 2020 stated that the reason that the case was closed was that it had been informed by the police that they would not be taking any action against the neighbour for drug use due to lack of evidence, that it had been informed by the resident that the noise nuisance had lessened after the landlord spoke to the neighbour, and its offer of mediation had been declined. The notes also stated that the landlord had visited both parties and had advised them to have no contact with each other.
19. The resident called the landlord on 16 December 2020 and informed it that incidents of ASB from her neighbour had increased. She described an incident where a member of her family was sprayed with cleaning chemicals as they left the property. She informed the landlord that the police were visiting her that day to discuss the matter. The landlord re-opened the ASB case and suggested that the resident consider a community trigger.
20. On 17 December 2020 the resident passed on information she had found on the internet relating to the neighbour’s household.
21. The landlord wrote to the resident on 18 December 2020. It described an action plan it had agreed with the resident during their telephone conversation. It also informed the resident that it would be raising her case at a multi-agency meeting.
22. The landlord added an internal note on the result of the multi-agency meeting on 13 January 2021. This stated that it was informed by the police and EH that they would not be taking further action due to the lack of evidence and that the fire service informed it that they would look into what action they had taken previously relating to bonfires and report back to the landlord.
23. On 22 January 2021, the resident contacted the local authority to request a community trigger review.
24. On 5 February 2021 the resident wrote to the police and the landlord to report that the resident had sprayed chemicals, and that this was witnessed by a mechanic who was working on her car at the time. The mechanic then complained of a scratchy throat which may have been related to the chemicals.
25. The community trigger review took place on 10 February 2020. At the meeting, the police stated that they had spoken to the mechanic who had informed them that they did not witness any spraying but could smell the chemicals when they were at the property.
26. The local authority wrote to the resident and informed her that the case did not meet the threshold for a community trigger to be implemented. The letter also informed the resident what action the police would take, stating that they would.
    1. Speak to the mechanic who had been sprayed with chemical with the resident.
    2. Review dashcam footage from the resident’s car.

c. Make enquiries with the previous tenant of the resident’s property to enquire if they had experienced issues with the neighbour.

27. The police informed the landlord what the mechanic had said about the incident on 10 February 2021.
28. The resident wrote to the landlord on 15 February 2021 to report the latest incident of chemical spraying and provided a video. The resident also requested adjustments made to the rear gate of the property to allow her to enter and exit the property via the back door.
29. The landlord replied on 16 February 2021 and informed her that it would not normally make improvements to a gate and only undertake necessary repairs. It noted that it would not withhold permission for the resident to make changes or add a lock to the gate.
30. On 16 February 2021, the resident wrote to the landlord and requested to raise a formal complaint. She described the elements of her complaint as:
    1. She did not believe that the landlord had properly investigated her reports of ASB and had passed on the responsibility to the police and EH.
    2. Aside from an offer mediation, she had received no support from the landlord.
    3. She had installed a video doorbell, increased the height of the fence and would be making changes to the rear gate. She had done this at her own expense in order to keep her family safe when this should be the landlord’s job.
31. The landlord acknowledged the complaint on 17 February 2021. A stage one complaint response was then sent to the resident on 10 March 2021. The landlord apologised for the delay in providing the response.
    1. It had spoken to her neighbour on numerous occasions and warned them that if a tenancy breach was found that it would take further action.
    2. It relied heavily on the police to provide evidence of the allegations made by the resident. It would also consider any evidence provided by the resident and advised her to pass this on to its ASB team to review.
    3. It would not carry out work to the gate and front door that would be considered an improvement. However, if the resident thought that the work would reduce incidents of ASB, then she could contact its repairs team and a surveyor would consider her request.
32. The resident wrote to the landlord on 10 March 2021 and requested an escalation of the complaint on the grounds that:
    1. A mechanic had witnessed the spraying of chemicals and they had spoken to the police to confirm this.
    2. Various other witnesses had also spoken to the police.
    3. She had provided the landlord with a video of a member of the neighbour’s household spraying chemicals out of a bathroom window.
    4. She did not believe that she or her reports had been taken seriously by the landlord and it had failed in its duty of care to her and her household.
33. The landlord replied on 10 March 2021. It confirmed that the complaint had been escalated and that it aimed to send a response within ten working days.
34. During a multi-agency meeting held on 10 March 2021, the police informed the landlord that they had spoken to the previous tenants who had informed them that they had also experienced issues with the neighbour, but they had not reported this to the landlord or any other agency. It is not clear from the evidence provided to this Service that the dashcam footage was provided to the police during the time period considered in the complaint
35. The resident wrote to the landlord on 28 March 2021 and requested an update on the status of the complaint. The landlord replied on 30 March 2021 and stated that the response should be provided by 2 April 2021.
36. The landlord called the resident on 7 April 2021 to discuss the complaint and the stage two complaint response was sent to the resident on 19 April 2021. The landlord informed the resident that it stood by its position as set out in its stage one response. It explained that had spoken to her neighbour and worked with outside agencies, but it had not been able to gather the necessary evidence to take further action.
37. The landlord advised the resident to report any further incidents and that it would continue to monitor the situation. It also confirmed that following further discussions about the rear gate, that it would now install a lock to the gate.

Assessment and findings

38. It is outside the Ombudsman’s role to establish whether the ASB reported was occurring or not; rather the Ombudsman’s role is to establish whether the landlord’s response to the resident’s reports was in line with its legal and policy obligations and whether its response was fair in all the circumstances of the case.
39. The landlord’s ASB case notes show that it followed its ASB policy in conducting the case. It acknowledged the resident’s reports within one working day, it made follow-up contact via email and telephone and visited both the resident and her neighbour to discuss the issues raised.
40. In order to gather evidence, the landlord provided the resident with diary sheets to fill out. It also raised the case with the multi-agency risk reduction group where the police responded to the elements of the case relating to drug use and the spraying of chemicals, EH responded to noise nuisance, and the fire service responded to the lighting of bonfires. The resident also independently contacted the police and EH about the ASB.
41. The reports of ASB made against the neighbour included serious allegations of criminal acts, including drug use and the deliberate spraying of chemicals at the resident and her family.
42. Landlords are able to pursue a range of measures against tenants for ASB. Landlords can ultimately take legal action against tenants for ASB which may result in the tenant being issued with an injunction to cease their behaviour or risk eviction. In the most severe cases, the landlord may ask the court for permission to evict a tenant for ASB without first seeking an injunction. Eviction should be considered as a last resort and when pursuing an eviction or injunction, the landlord would be expected to show the court extensive evidence that the behaviour was severe and persistent. The landlord would also usually be expected to demonstrate that informal attempts to resolve the ASB such as mediation and tenancy warnings had been attempted previously but had not been successful.
43. It was reasonable for the police, EH and fire brigade to take the lead on investigations into the resident’s allegations of ASB. This is because the police have the powers and expertise to investigate and respond to criminal activity, EH have powers and expertise to take action against perpetrators of noise nuisance and the fire brigade are experts in investigating fires, including bonfires.
44. The outcome of any police, fire service and EH investigations may provide significant evidence to support the landlord’s request for an injunction or eviction, increasing the chances of success in court.  Therefore, it was reasonable for the landlord to decide to wait until the investigations by these other agencies were concluded before pursuing formal action against the neighbour. In this case, the decision was made by the police, EH and fire brigade not to take any action due to a lack of evidence. It would be unfair for the landlord to take action against its tenants such as issuing a tenancy warning or acceptable behaviour contract without sufficient supporting evidence. Therefore the landlord was limited in what it could do to resolve the ASB due to a lack of evidence. As the resident declined to participate in mediation, the landlord made the decision to close the case in line with its ASB policy
45. Mediation is voluntary and the resident and her neighbour were both entitled to decline to participate. However, it was reasonable for the landlord to offer mediation as it can be helpful in resolving ASB in some cases. It was also reasonable for the landlord to close the ASB case after the resident declined mediation, in line with its ASB policy as it could not take further action against the neighbour without evidence to support the ASB allegations.
46. When further incidents were reported by the resident, the case was reopened, and the landlord suggested a community trigger review. A community trigger can be requested by a tenant to have their ASB case and the performance of the agencies involved reviewed by either the local authority or the police. The local authority was responsible for community trigger reviews in the area where the resident lived. The local authority found the community trigger threshold had not been met and broadly supported how the case had been handled by the landlord and other agencies. It also agreed to an action plan with the police to gather further evidence, which was undertaken.
47. The Ombudsman cannot investigate the local authority’s decision not to arrange a community trigger. This is because we can only investigate the actions of the resident’s landlord when looking at her complaint and the local authority is a separate organisation from her landlord. Also, the community trigger is separate from the landlord’s complaint process and involves multiple agencies, not just the landlord’s handling of ASB.
48. Therefore, there is no evidence of service failure in how the landlord handled the resident’s reports of ASB. It followed its ASB policy in responding and recording the reports. It then looked to work with both the resident and outside agencies to gather evidence to allow it to take action against the alleged perpetrators. It also wrote, then visited, the neighbour to inform them of the allegations and the consequences if the allegations were proven. When the resident sent in further reports of ASB and stated her dissatisfaction with how the case has been handled. The landlord reopened that case and suggested the resident explore the option of a community trigger to conduct an independent review of how the case had been handled. The community trigger did not identify any errors in the landlord’s handling of the ASB case and therefore the landlord was not expected to take any further action. Although, it should continue to investigate and respond appropriately to any further reports of ASB, in line with its ASB policy.

Determination (decision)

49. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of how it handled the resident’s reports of ASB.

Reasons

50. The landlord followed its ASB policy and procedures correctly in opening and investigating the ASB case. It was reasonable for the landlord not to have taken action against the alleged perpetrators as there was insufficient corroborating evidence to support the allegations.