Chelmer Housing Partnership Limited (202001978)

REPORT

COMPLAINT 202001978

Chelmer Housing Partnership Limited

29 September 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

This complaint is about the landlord’s response to the resident’s concerns about:
1. Noise nuisance from the upstairs neighbours (Tenant A).
2. Anti-social behaviour by other neighbours (Tenant B) relating to parking inappropriately and causing a nuisance and being abusive and/or threatening.
The resident has also complained about the landlord’s handling of his request for a priority management transfer to another property.

Background and summary of events

The resident has an assured tenancy with the landlord.

Scope of investigation

It is noted that the issues raised in the above complaints have been ongoing since 2018 but the formal complaint was not lodged until 17 June 2020. The complaints were the subject of a final complaint response from the landlord on 23 September 2020. Since that response, further incidents have occurred and it is understood that the resident has been in discussions with the landlord about this and he is pursuing additional complaint(s) with the landlord.
The Housing Ombudsman Scheme states that the Ombudsman will not investigate events which were not brought to the attention of the landlord as a formal complaint within a reasonable period, which would normally be within six months of the matters arising. This investigation will consider events from June 2019 onwards on the basis of what the Ombudsman considers to be a reasonable period in light of the provisions of the Scheme and considering the available evidence. It should be noted however that all of the evidence provided by both parties has been considered.
As such, whilst this report may include some historical events for the purposes of context, the scope of this investigation will be limited to consideration of the reports from June 2019 onwards up until 23 September 2020.

Policies, procedures, and agreements

Tenancy Agreement:

This sets out the general responsibilities and expectations on residents and standards of behaviour e.g. in relation to nuisance and ASB, and it includes specific clauses on drug dealing, noise, harassment, and similar issues.
It also includes clauses preventing parking of unroadworthy or untaxed vehicles on any land owned by the landlord. Tenants are also not permitted to carry out any ‘major vehicle repairs’ or any vehicle repairs which cause a nuisance to others.

ASB policy:

This sets out how the landlord deals with reports of ASB. In general, it will respond to ASB reports within 5 working days (or 1 working day if it is a hate crime).
Certain types of behaviour will not be dealt with as ASB and will be deemed to be nuisance e.g. moving furniture, babies crying, doors slamming, cooking smells, children playing or dogs barking. The landlord recommends mediation in such situations.
The policy states that the landlord will agree an action plan with the victim, which will include agreed timescales for regular review and contact.
The landlord will aim to intervene early on and ‘ensure that prompt, appropriate and decisive action is taken to deal with ASB’. It will work with other agencies (Police etc) to share information and take co-ordinated action. But it will not investigate criminal activity itself.
With regards to nuisance parking and abandoned vehicles – the policy states that this should be reported to the local authority in the first instance.

Compensation policy:

This allows for the landlord to pay compensation for ‘Failure to meet expected level of service’. The policy distinguishes between ‘minor’ and ‘major’ failure with no set limits on the compensation level.

Allocations policy:

This sets out when the landlord can consider a management transfer. It states that where a family is experiencing problems of a nature which it is unable, as part of its role as a landlord, to resolve, but which could be resolved by a move to other accommodation, provision will be made for a ‘management move’ to a similar type and size of property.
Tenants wishing to transfer are put in allocation bands:
1. Band 1 – includes life threatening medical conditions; and tenants facing domestic violence or are subject to hate crimes; and ‘victims of severe ASB’.
2. Band 2 – includes where the current housing conditions are having a major adverse effect on the tenant’s, or a member of their household’s, medical condition.
3. Band 3 – includes where the current housing conditions are having a moderate or variable adverse effect on the tenant’s, or a member of their household’s, medical condition.

Summary of events

The available records show that the resident made reports about noise nuisance from Tenant A in the flat above him, and also Tenant B’s inappropriate use of the communal car park in March 2019.
The landlord has said that it spoke to Tenant A about the noise, and after speaking to Tenant B, the offending vehicle was moved by Tenant B’s son to another parking space away from the resident’s space.
Following further reports of noise from Tenant A in April 2019, the landlord agreed to install sound recording equipment, but this was not available until June 2019.
On 27 May 2019 the resident reported that Tenant B’s son was continuing to use the car park to carry out major work on his vehicles, smoke cannabis, obstruct the resident’s allocated space and cause a nuisance and harassment.
On 04 June 2019 the landlord installed sound recording equipment at the resident’s flat. The equipment was in place for a week and was removed on 11 June 2019.
The subsequent correspondence shows that the landlord had concluded that the noise did not require any formal action against Tenant A as it was deemed to be everyday living noise and not excessive.
In September and October 2019 the resident made further reports about Tenant B’s son’s use of the car park and the resident said that he felt he was being harassed and his use of his allocated parking space was being hindered. The resident also made a request at this time for a management transfer.
The landlord responded on 21 October 2019 declining the request for a priority transfer on the grounds that the resident did not meet the required criteria (e.g. fleeing domestic violence or a life-threatening issue). The landlord noted the ongoing ASB issues and said it would continue to work with the resident to see what other options were available, such as mutual exchange. It said it would also continue to investigate any further ASB reports.
The resident was unhappy with this response and he was also unhappy that the landlord had insinuated that he was abusive towards his wife. The landlord wrote to the resident on 29 October 2019 explaining its position. It apologised if its enquiry about the resident’s wife’s wellbeing had offended the resident. It said that based upon a conversation picked up by the sound recording equipment between the resident and his wife, the landlord had a duty to check that she was ok. Having done so, it was satisfied that there were no concerns and no action was needed in respect of this conversation.
The resident then sought assistance from his local MP. The landlord responded to the MP on 1 November 2019 explaining what actions it had taken about the ASB reports.
The resident was still unhappy and felt that the landlord had not done enough to tackle either the noise or the car park ASB. The landlord responded on 13 November 2019 and explained that it needed evidence to be able to take any formal action. It advised that if the resident had concerns about Tenant B’s son drug-dealing, he would need to report this to the Police. As for noise issue, it offered to install the sound recording equipment again. The landlord agreed to arrange a meeting with the resident to discuss further.
The meeting took place in mid-December 2019 (the records are not clear on the exact date) and the landlord confirmed that it had issued a warning to Tenant B, but it could not do anything more without further evidence.
On 24 January 2020 the resident reported further incidents of Tenant B’s son’s behaviour and inappropriate parking.
On 13 February 2020 the resident emailed the landlord asking it to take further action against Tenant B given that the previous warning had no effect and the car park issues still remained. The resident also reported that the noise from Tenant A above was continuing.
The landlord responded on 18 February 2020:
1. It said that it had viewed CCTV footage of the recent incident where the resident’s wife had said that she felt intimidated by the neighbour’s actions, and it was satisfied that this did not constitute a tenancy breach.
2. It agreed to send out a letter to all residents about parking considerately. It said that it could not force everyone to park more considerately and Tenant B was not blocking the resident’s parking space.
3. With regards to the noise from Tenant A, it said that it had not received any further noise reports from the resident since the December meeting, but if this was still an issue then the resident could use the Noise App to record the noise as evidence.
The resident was then provided with access to the Noise App to collate evidence.
In April 2020 the resident contacted the landlord to notify it that his wife was pregnant. The landlord confirmed that it would review the resident’s priority banding once she was 6 months pregnant.
On 1 May 2020 the resident emailed the landlord to say that he had been sending in the Noise App recordings and although Tenant A had been ‘spoken to’ a few times by the landlord the noise was still continuing. He also said that Tenant B’s son was still causing nuisance in car park by parking inappropriately, and smoking cannabis in his car.
The landlord responded on 7 May 2020:
1. It said that the sound recordings would be classed as normal everyday noise, with the exception of the occasional loud bumps and thuds. It explained that it would consider the recordings in the context of the fact that everyone was now working from home more. It was of the view that it was a difficult time for everyone and it acknowledged that keeping children quiet all the time, given that they have nowhere else to go and play was hard on everyone.
2. It had spoken to Tenant A about some of the louder recordings of bumps and thuds and asked them to try to consider the noise that may be heard coming from their property.
3. With regarding the car park issues, it said that the photos provided by the resident did not show the neighbour’s car obstructing the resident’s car or blocking his space.
4. It said it would consider other options to restrict who uses the car park e.g. installing an entrance barrier.
The resident continued to be dissatisfied with the lack of any formal action being taken against Tenant A and Tenant B. The landlord responded on 21 May 2020 saying that it had taken proportionate action against Tenant A for the noise. It had warned her and told her that if there was further evidence of excessive noise it would take formal action against her. As for the car park it said that it could not police the use of the car park but it would speak to Tenant B again about the issues raised by the resident.
In early June 2020 the resident again requested a priority management transfer based upon medical grounds and overcrowding. This request was taken to an internal Allocations Panel to discuss whether the banding needed to be amended, but given the medical evidence available to it, the decision was made not to give any additional priority.
The landlord wrote to the resident’s MP again on 9 June 2020 setting out its position and what it had done so far:
1. It had spoken to Tenant A about the noise and issued a warning.
2. It had advised the resident to continue to use the sound recording app to collate evidence of any excessive noise.
3. It has looked into the resident’s concerns about Tenant B’s son’s use of the car park and it is satisfied that there is no tenancy breach. It had witnessed a number of people using the car park, some of whom were not tenants of the landlord. As such, it proposed installing a car park barrier to help limit those that come and use the car park that do not live on the estate.
4. It was unable to take any formal action against Tenant B specifically as the evidence it had seen so far did not show any breach of the tenancy.
5. It reminded the resident to report any concerns about drug misuse or dealing to the Police in the first instance.
6. With regards to the transfer it explained that it can move the resident to Band 3 priority once it had confirmation of 6 months pregnancy.
The landlord also wrote to the resident on 9 June 2020 to confirm that the sound recordings would not justify any formal action against Tenant A. It said it considered it to be normal everyday noise – especially taking into account the current restrictions on movement and the fact that Tenant A had two children in the property.
The resident contacted this Service on 16 June 2020 and he was advised to complete the landlord’s internal complaints process first.
The resident raised a formal complaint with the landlord on 17 June 2020. This complaint was about the noise issues and the ASB issues in the car park.
The landlord issued a Stage 1 complaint response on 25 June 2020:
1. With regards to the general issue of alleged drug-dealing on the block, it said that it had sent out a letter to all residents in December 2019 reminding them of their tenancy conditions in relation to ASB. Since then the landlord had not received any further complaints about this issue. It also said that it could not take action against any individual unless there was clear evidence, and so far it had no clear evidence from the Police or the local authority.
2. With regards to the noise issue, it had installed sound recording equipment in June 2019, which did not show any significant excessive noise. It had also warned Tenant A about the noise levels and it said it would take further action depending upon the evidence. But as it stood, the landlord did not have enough evidence to justify any formal enforcement action against Tenant A for a breach of tenancy.
3. With regards to the car park issues, it had spoken to Tenant B about this but it did not have enough evidence at this stage to take any further formal action for any tenancy breach.
The resident was unhappy with this response and requested that the complaint be escalated on 9 July 2020. He disputed the landlord’s assertion that it did not have enough evidence to take formal action against either Tenant A or Tenant B. Within this response the resident also detailed his dissatisfaction with the lack of help provided by the landlord in respect of his transfer request and he also explained how the present situation was impacting on his health.
On 10 July 2020 the resident lodged a separate formal complaint about his transfer request.
There was further correspondence between the resident and the landlord about the car park issues and Tenant B. The landlord reviewed further photo evidence provided by the resident but it remained of the view that this did not show any tenancy breach. It had spoken to Tenant B and the Police and it was not able to take any further action at this time, but it said it would continue to liaise with the Police and decide if any further action was needed. It also made reference to counter-allegations made against the resident by Tenant B.
The landlord issued its Stage 1 complaint response on 22 July 2020 about the transfer request. It set out the assistance it had provided so far and it confirmed that his priority banding had been amended to Band 3 to reflect the pregnancy. It said that it had done this in an effort to help the resident as its policy states that the banding is only changed once the baby is born, but on this occasion it had agreed to change the banding early to allow the resident more time to find a more suitable property. Based upon the available evidence, it said that this was the highest banding it could give.
The resident submitted further details of his health issues and the landlord sent this medical information to an external medical assessment team for review.
On 3 August 2020 the resident provided the Police with details of Tenant B’s parking issues and video evidence of intimidation and harassment. The landlord wrote to the resident on 7 August 2020 and said that had liaised with the Police and they (the Police) were not going to take any further action based upon the evidence presently available and they had closed their case. The landlord agreed to speak to Tenant B again but it reiterated that it could not take the formal enforcement action the resident was seeking.
The Police also wrote to the resident on 15 August 2020 to confirm that it was not going to pursue any action against Tenant B with regards to the car park issues.
Given that the two complaints lodged by the resident were intertwined, the landlord agreed to issue a joint final response dealing with both complaints together in one final response. It arranged an Appeal Panel Meeting on 25 August 2020 to review both the complaints.
The landlord issued a preliminary final response on 2 September 2020 for the combined complaint:
1. It concluded that its actions and responses prior to the complaints in relation to noise nuisance and the transfer request were reasonable.
2. However, given that there had been further developments after the complaints were opened in June and July 2020, it decided that it would need to investigate the issues further and obtain further medical evidence before giving a final response to the complaints. It said it would arrange for medical evidence to be reviewed and it would issue a final combined response by 23 September 2020.
3. With regards to the noise complaint, it said that it had reviewed the noise recordings and it agreed with the previous conclusions that this was a neighbour dispute issue rather than ASB. Tenant A had been spoken to and given a warning about isolated incidents of excessive noise, and the landlord was satisfied that this had addressed the problem.
4. It had reviewed the issues surrounding the car park and Tenant B and before issuing its final response it wanted to carry out a last case review ‘to ensure that every aspect is given the time and attention it deserves and full consideration for how these matters have impacted on your mental health’.
5. Based on the present evidence it was satisfied that the awarded banding was appropriate and in line with its policy. However, a full medical assessment and review will now take place to ensure that everything has been reviewed and considered in full.
On 11 September 2020 the landlord wrote to the resident to confirm that it had reviewed the latest medical evidence following the assessment carried out by the external team. It maintained that based upon the latest evident it could not provide any higher priority banding than Band 3, which would remain unchanged.
The resident disagreed with this decision and questioned the validity of the external medical team and its assessment. He also questioned why the ongoing ASB issues did not warrant a higher priority banding.
The landlord issued its final combined complaint response on 23 September 2020:
1. It accepted that there were ‘learning points’ to be taken from the handling of the ASB issues. For example, its risk assessment could have been updated more regularly.
2. It accepted that there were at times failures in communication, and that this could have been better. This would have potentially allowed it to offer more support and enable better partnership working.
3. It said that these points had been noted and it would embed them in its ASB work going forward.
4. Despite these learning points, it maintained that, overall, the outcome of the case had not been materially impacted by these shortcomings.
5. With regards to the transfer request, it accepted that the new medical evidence showed that the present housing situation was having an adverse impact. However, the external medical team did not find anything to indicate that the conditions were life threatening, nor did they consider the adversity of the current accommodation to have a major impact. Therefore, the thresholds for higher priority had not been met, and the current Band 3 status was reflective of the medical evidence.
6. The landlord confirmed that the ASB issues to date were not considered to be serious enough to warrant an out-of-policy move. As such, it could not agree to a management move or any additional priority banding.
7. In conclusion, it had identified potential service improvements it would implement in terms of its ASB handling. In acknowledgement of instances in which communication could have been improved, it offered a compensation payment of £300, under its provision for ‘Failure to meet expected level of service’ outlined in its Compensation Scheme Policy.

Assessment and findings

Landlord’s response to the noise issue

The Ombudsman’s role includes an assessment of whether the landlord has followed its policies and procedures and acted appropriately. It is important to note that it is not the purpose of this report to investigate the actual reports of noise and/or ASB or to assess the credibility of the reports made by the resident. Our role is to consider the landlord’s response to the reports it received, and to the formal complaint, and consider whether its response was reasonable in all the circumstances of the case, in accordance with its policies and its obligations under the tenancy agreement and any relevant legislation.
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.
Looking firstly at the issue of the noise reports made by the resident against Tenant A who lives in the flat above. The landlord has evidenced that it responded reasonably and that the steps it had taken were proportionate to the severity of the reports, and whilst the amount of reports made by the resident were considerable, the subject matter of those reports were essentially the same in terms of the noise caused by the children.
The landlord met with both parties and reviewed the noise recordings collated by the resident. It spoke with the neighbour to understand the situation, and it took into account that the neighbour had small children who, due to the lockdown situation, were unable to play elsewhere. As such, it acknowledged that it would be difficult for the neighbour to minimise the noise caused by the children in those circumstances. The landlord’s response was appropriate and it showed that it had taken into account the unusual circumstances which had contributed to the noise situation.
The landlord took into account the concerns raised by the resident and it attempted to mediate a resolution informally by liaising with the neighbour, which was appropriate in the circumstances. It took into account that there was evidence of isolated excessively loud noise on occasion and it warned the neighbour that if there were further such incidents of excessive noise, it would consider taking further action. The resident is unhappy that only a warning was issued to the neighbour but given the context and circumstances of the isolated incidents, the warning was appropriate.
It is acknowledged that there were numerous reports made by the resident to the landlord about the noise disturbance, but the number of reports, in itself, is not an indication that the landlord was required to take any further action. The landlord was satisfied following its investigation that the reports did not amount to ASB that required any formal action for a tenancy breach. The reported incidents were considered by the landlord to be matters related to general household living noise. The recordings compiled by the resident were reviewed by the landlord, and it was reasonable of the landlord to conclude that the noise did not amount to ASB that would warrant any tenancy enforcement action against the neighbour.

Landlord’s response to the car park ASB issues

It is not disputed that the resident has said that he and his family felt harassed and threatened by the conduct of Tenant B (and her son) with regards to the ASB issues related to the car park. The landlord’s records show that various similar reports were made by the resident to the landlord about this. The Ombudsman understands that these incidents have caused distress and upset to the resident. The Ombudsman’s role in such cases is to consider how the landlord has addressed a resident’s reports and concerns and to determine whether its approach was appropriate and proportionate to the issues being reported and the evidence available to it at the time.
The landlord’s records show that, on the whole, it responded to the reports of ASB within a reasonable time and consistently explained what it had done, and why it could not take further action. Where there are issues of potential criminal activity, such as the alleged drug-dealing, it was appropriate for the landlord to advise the resident that he needed to report this to the Police.
The landlord considered the evidence provided by the resident and it liaised with the Police to try and establish if there had been any tenancy breaches. Given the lack of clear evidence, and the advice from the Police, it was not unreasonable for the landlord to say that it did not have enough evidence of a tenancy breach, and as such, it could not take formal action against Tenant B.
The resident is clearly unhappy with the lack of formal action, but it must be borne in mind that the landlord is guided by the evidence available to it, and in this case, whilst the resident has provided photos and video recordings, this has been considered by the landlord and the Police as being insufficient for further action to be taken. In such circumstances, it is not unreasonable for the landlord to be guided by the Police.
Whilst the evidence did not justify formal action, the landlord’s records show that it spoke with Tenant B on many occasions about the incidents and it also sent out a letter to all the residents reminding them of the appropriate use of the car park. It also acted appropriately by considering what other measures could be taken to minimise any inappropriate use of the car park, such as installing a barrier.
In its final complaint response the landlord acknowledged that, whilst the evidence did not presently support or justify any formal action against the neighbour, it did highlight that it could have done better in terms of its communication with the resident. In recognition of this, it offered the resident £300 compensation.
In considering whether or not the landlord’s offer of compensation is reasonable, the Ombudsman has taken into account the landlord’s compensation policy, and this services’ own Dispute Resolution Principles (be fair, put things right and learn from outcomes) and our published Remedies Guidance.
In particular, the ‘Remedies Guidance’ explains that where there have been service failures by the landlord, if the landlord has recognised the failures itself and has taken appropriate action to put this right, including offering reasonable compensation, then the Ombudsman will not necessarily require that the landlord do anything more. One of the factors that the Ombudsman considers is whether the redress is proportionate to the severity of the service failure by the landlord.
Looking at the severity of the service failure, the landlord has acknowledged that it could have done better in terms of its communication. The Ombudsman has not seen any evidence of significant service failures. There have been instances where there have been delays in responding to the resident and whilst, strictly speaking, this may breach its ASB policy timeframes, the Ombudsman is satisfied that the landlord’s overall handing of the matter was reasonable and it maintained a consistent approach in explaining why it could not take further action.
Taking an overall view on the matter, the Ombudsman has noted the landlord’s acceptance that its service provision could have been better with regards to its communication with the resident. The landlord has acted appropriately by not only recognising its shortcomings, but it has learnt lessons from the complaint and has said it would be implementing changes going forward. It has also offered the resident an apology and compensation. In the Ombudsman’s view, the offer of compensation recognises the service failure in communication and the offer represents proportionate and reasonable redress for this.

Landlord’s handling of the transfer request

The landlord’s Allocations policy states that it can consider a management move to another property if certain qualifying criteria are established. The qualifying criteria required for Band 1 priority requires evidence that the resident’s family is facing ‘life threatening medical conditions’ or is being subject to domestic violence or hate crimes; and the family are ‘victims of severe ASB’. The qualifying criteria for Band 2 requires evidence that the resident’s housing conditions are having a ‘major adverse effect’ on the resident or his family’s medical condition.
The requisite criterion and threshold for the banding priorities are clear and unambiguous. In this case, the available evidence demonstrates that the resident’s request for a management move, and an increase in his banding, was handled empathetically, and appropriately and the landlord acted in accordance with its Allocations policy when determining the request.
It is noted that the resident’s circumstances, and his (and his family’s) medical history has been reviewed on two separate occasions by different external medical teams. The conclusion of each medical assessment was that there were no life-threatening conditions and the impact of the ASB was not deemed to have had a ‘major’ adverse effect on the family.
It is not disputed in any way that the resident feels threatened and harassed by the actions of his neighbours. However, as explained above, it is not for the Ombudsman to determine the severity of the ASB and/or the validity of the allegations. Furthermore, nor can we medically assess the impact of the alleged ASB on the resident’s health and mental wellbeing – this is rightly better suited for medical professionals to determine.
The landlord has shown that it has acted appropriately by acknowledging the resident’s concerns about the impact of the ASB and it has arranged for this to be properly assessed by external medical experts. It is noted that the resident has questioned the expertise of these experts but the Ombudsman has seen no evidence to question the medical reports or cast doubt on the validity of the conclusions reached by the medical experts.
It was appropriate for the landlord to refer such matters to qualified experts and it is not unreasonable for the landlord to be guided by the advice from the medical experts.

Determination (decision)

In accordance with paragraph 55(b) of the Housing Ombudsman Scheme the landlord has made a reasonable offer of redress in respect of its response to the resident’s concerns about the noise nuisance and the car park ASB.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its handling of the resident’s request for a priority management transfer to another property.

Reasons

The landlord has acknowledged the resident’s concerns and has accepted that there were minor failings in its level of communication with the resident. It has apologised for this and has offered compensation which the Ombudsman considers to be reasonable and proportionate redress for the service failure.
The landlord’s handling of the transfer request was appropriate and in accordance with its allocations policy.

Orders and recommendations

Recommendation

If it has not already done so, the landlord to pay the resident the £300 compensation it offered him in its final complaint response of 23 September 2020.