Clarion Housing Association Limited (201908255)

REPORT

COMPLAINT 201908255

Clarion Housing Association Limited

Amended 18 August 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

The complaint is about the landlord’s handling of the resident’s:
1. reports of anti-social behaviour (ASB);
2. associated formal complaint.

Jurisdiction

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.
The resident has stated that she has been the victim of ASB for almost the entirety of her tenancy; in excess of twenty years, the ASB predominantly consisting of verbal abuse and intimidation. The resident has stated that despite reporting incidents to the landlord, it has not taken sufficient action to address the ASB perpetrated by her neighbours.
Evidence has been provided to this Service in support of the fact that the reports of ASB have been made over a lengthy period of time, with documentation dating back to 2010. There is evidence too, of the landlord issuing a warning letter to the neighbours early on. And incident reports that show what actions have been taken independently and in collaboration with the police in response to the residents reports of ASB.,
Paragraph 39(e) of the Scheme states that “The Ombudsman will not investigate complaints which, in its opinion, were not brought to the attention of the member as a formal complaint within a reasonable period, which would normally be within six months of the matters arising”.
When making a formal complaint contemporaneously, it makes it possible for a thorough investigation of the issues and increases the changes of matters being resolved satisfactorily and at the earliest opportunity. Making a formal complaint at the time, means that any staff concerned are available to comment, evidence is more likely to be available and that alleged perpetrators have a chance to respond to the allegation/s and where appropriate, to change their behaviour to put things right.
The Ombudsman does not investigate the landlord’s handling of historic matters for these reasons. After carefully considering all of the evidence, in accordance with paragraph 39(e) of the Scheme, the Ombudsman determines that much of the historic issues raised in this case are outside of the jurisdiction of this Service.
The Ombudsman is entitled to use its discretion, however, to determine from which point issues will be considered. The resident notified the landlord of a number of issues from May 2019 and in December 2019 expressed her dissatisfaction at the landlord’s handling of the issues. The Ombudsman determines that it is consequently fair and reasonable for matters from May 2019 to be considered; just over six months prior to the resident expressing her dissatisfaction at the landlord’s handling of her reports of ASB, albeit this was not considered a formal complaint at this time.
In not considering the previous reports, this does not mean that the Ombudsman does not believe that the resident has reported ASB for a significant period of time, or that the situation has not had a profound impact on her. However, for the reasons described and as supported by paragraph 39(e) of the Scheme, this investigation will focus on events from May 2019 only.

Background and summary of events

On 2 May 2019, the resident reported to the landlord that she was concerned that her neighbours (the alleged historic and current perpetrators) were speaking with her husband; she was worried about potential financial abuse as her credit card went missing and was found in her neighbour’s house.
Because the allegation was of a criminal nature the Landlord’s policy required the resident to report the incident to the police before it could take further action. The resident failed to do this despite being reminded of the necessary steps. As such, the Landlord was unable to investigate this incident further.
Shortly thereafter, on 10 and 21 May 2019, the resident reported verbal abuse towards her by her neighbours. The landlord has said that it was unable to investigate because there was no evidence of the alleged incident.
On 11 June 2019, the resident reported her neighbours having made a false allegation about her, which had led to her arrest on suspicion of domestic abuse. The Landlord has provided an incident report from June 2019 that suggest it investigated the allegations made about the resident. But based on the evidence available it was unable conclude whether the allegations were true or false. There is no information as to whether the Landlord shared details of its investigation or subsequent findings with the resident.
The following month, on 28 July 2019, the resident reported verbal abuse again from her neighbours and a counter-allegation was also made. The landlord has stated that it investigated this and visited with the police but was unable to take any action as there was a counter argument. After completing its investigation, the Landlord wrote to both parties giving words of advice.
On 2 August 2019, the resident reported youths knocking on the door of the property, then running away. On 5 August 2019, the landlord wrote to the resident, inviting her to discuss the issues in a joint discussion with the police. The Landlord met with the resident on 7 August and discussed the resident’s report however due to there being no independent corroborating evidence the complaint was eventually closed on 21 August 2019.
On 6 December 2019 the resident made a formal complaint to the landlord about its handling of reports of ASB.
On 18 December 2019, the landlord contacted the resident, regarding “harassment” she had reported. During this call it was agreed that the landlord would contact the resident again on 8 January 2020 to discuss and review the situation and to see whether there was sufficient evidence to commence legal proceedings.
The resident wrote to the landlord on the same date. She said that she had experienced ASB at the hands of her neighbours for 21 years and the landlord had not taken action to address it, nor did it appreciate the impact the situation had had on her. She found the landlord’s attitude in the telephone conversation unhelpful and “traumatising”. She referred to actions the landlord had clarified earlier that day; that an ASB case had been opened and that it would send her diary incident sheets to document any ASB.
On 2 January 2020, the resident reported more verbal abuse from neighbours. In response, the landlord asked all neighbouring residents to report any ASB they had witnessed. The landlord has stated that the report the resident made could not be corroborated by anyone else and so the case was closed four months later on 4 April 2020.
On 8 January 2020 the landlord attempted to contact the resident as was agreed with her but was unable to make contact. Instead, it left a voicemail message advising that it would try again the following day. The landlord also spoke with the police about the issues that were being raised by the resident.
Having spoken to the resident, the landlord determined that two further incidents reported between December 2019 and January 2020 concerning parcel deliveries, were “low level”. The landlord agreed with the resident, however, that it would liaise with the police about how best to support her with the situation going forward and agreed a further telephone call for 20 January 2020.
During that call on 20 January 2020 the landlord advised that during its next call on 10 February 2020, it would be able to advise of the outcome of the investigation into the ASB reported. There is no information pertaining to whether the call on 10 February 2020 went ahead or if so, what was discussed.
On 8 February 2020 the resident wrote to the landlord regarding verbal abuse from her neighbours.
On 11 February 2020 the landlord issued its stage one response to the complaint. The complaint was not upheld. The landlord advised that many of the issues raised were historic and were investigated at the time and would not be investigated now. It explained its response to more recent events, from December 2019 and explained that more recent issues were logged but not progressed due to them lacking evidence and not meeting the landlord’s ASB criteria. The landlord explained that the recent reports regarding the post would remain open and will be progressed if there was independent evidence to corroborate them.
In terms of threatening behaviour, the resident had said she had experienced at the hands of her neighbour, which had been witnessed by the police, who did not take any action, the landlord reiterated an earlier request for her to provide further details regarding this and said it could contact the police to discuss the matter if she was unable to provide these.
Regarding a member of staff commenting on the resident’s mental health, the landlord explained that this is sometimes a factor it needs to consider in order for it to ascertain whether this could be contributing to ASB and also to ensure support or referral is in place. The landlord advised that it had fed back the resident’s comments to the member of staff’s manager, however, it could not provide her with any outcome in respect of this, due to General Data Protection Regulations (GDPR).
On 17 February 2020 the resident wrote to the landlord describing her experiences of ASB over 20 years, including “harassment”, “physical and verbal abuse”, “criminal damage”, “hate”, “theft”, “defamation of character” and “vandalism”. The resident stated she did not have diary incident sheets to log events as the landlord had not sent any, despite stating it would and that despite her believing these to be a waste of time, she was willing to complete them, yet they hadn’t been sent.
On 13 May 2020 the resident wrote to the landlord about ongoing ASB, including damage to her son’s car, the house being “egged” and shouting and swearing by her neighbours at her and her son. The resident referred to documentation disclosed to her as part of a Subject Access Request (SAR), which stated that no investigation had ever been carried out by the landlord into the incidents reported.
On 17 July 2020 the resident wrote to the landlord, notifying it of an incident that occurred that day, whereby her neighbours had shouted at her to “f**k off” and made hand gestures at her as she drove away from the property. In her letter, the resident referred to a further incident she had recently reported regarding her neighbours being verbally abusive to her son, which she had also reported and received no reply from the landlord. The resident has said that she has made a number of reports to the landlord about ASB, over time, to which she received no response.
The Landlord has stated to try and gather more information two calls were made on the 28 July 2020 and 21 August 2020, voicemails were left, however it did not receive a response from the resident. But it informed the police of the incident and because of the nature of the report was happy for it to investigate as the lead agency. The Ombudsman has not seen any information in relation to the outcome of this investigation.
On 22 September 2020 the landlord logged the resident’s formal escalation request, in respect of her complaint and advised that it would provide an outcome within 20 working days.
On 16 October 2020 the landlord issued its stage two response to the complaint. The complaint was not upheld, with the landlord finding that it had investigated and responded appropriately to all of the reports made over a lengthy period of time. The landlord explained some of the actions it had taken, including speaking to those concerned, issuing warnings, and explaining how tenancies may be impacted by behaviour.
The landlord did acknowledge that its response “at the time” was delayed and for this it offered £25 compensation.

Policies and procedures

The landlord’s ASB policy states that upon receipt of a report of ASB, it will categorise it depending on the severity and act in accordance with that thereafter. One-off events may not be fully investigated, however, in cases of reports of criminal activity, the landlord will work with the police to seek to resolve them and with other reports of ASB (besides noise), the landlord will respond within five working days, when its threshold is met.
The same policy explains the ASB threshold as:
1. Three separate incidents reported in the last 7 days by the same person or a member of the same household;
2. Five separate incidents reported in the past 28 days by the same person or member of the same household, or;
3. Two separate incidents reported in the past 28 days by two or more people from different households.
Actions the landlord may take in tackling ASB include interviewing the reporter of ASB and alleged perpetrator, issuing warning letters, drawing up Acceptable Behaviour Agreements (ABCs), offer mediation and tenancy support and in the most serious of cases, pursue eviction proceedings.
The landlord has a two-stage complaints procedure whereby it aims to investigate and respond within 10 working days at stage one and within 20 working days at stage two; stage two being reached following a complainant’s request for escalation of the matter. An escalation request must specify reasons for dissatisfaction and desired outcome.

Assessment and findings

In cases of ASB, it is not the role of the Ombudsman to determine whether the ASB occurred, but instead, to assess how the landlord responded to the reports of ASB and whether its responses were in accordance with its policies and procedures and appropriate and reasonable in the circumstances.
The Landlord has provided incident reports that show what actions have been taken independently and in collaboration with the police between June 2019 and April 2020, in responses to ASB reports. It has also provided copies of dairy sheets sent to the residents and states these were never returned.
In some cases, the Landlord could not take any further action because there was lack of evidence or counter claims being made. And in others where there was evidence the Landlord did write to all parties involved giving words of advice. But by its own admittance it some cases, it failed to undertake any investigation due to a lack of evidence.
It was inappropriate that the landlord did not follow its ASB policy and did not investigate all matters accordingly. Based on the incident reports provided it does not appear that landlord’s threshold for ASB was met in terms of frequency of reports. But because the landlord failed to investigate all reports, it is difficult to be totally satisfied that this would not have been the case.
It is clear, that there has been ongoing neighbour disputes and reports of ASB for a substantial period of time with no improvement of the situation. In circumstances such as this, the landlord is required to take steps to respond to and address the ASB.
It is clear that there is animosity between the resident and her neighbours. Neighbours sometimes do not get on and living in close proximity to other people, it is inevitable that not everybody will like everybody else, and it is not realistic to expect everyone to get on well. Where people do not get on, often, keeping distance and maintaining space and privacy is paramount to diffusing the situation and allowing both and/or additional parties to live in peace despite living alongside individuals they ultimately would rather not.
In this situation the animosity has been allowed to escalate and continue to an extent that the resident reports feeling threatened and intimidated both inside and outside of her home, with some of her reports being of a criminal nature, hence police involvement.
Where ASB is reported, two things are crucial; that the matter is addressed quickly to prevent it from escalating and that evidence is obtained. Evidence is not required for the first of these to happen; the landlord is entitled to approach the alleged perpetrator of ASB to put an allegation to them to enable them to respond and where appropriate, to take steps to change their behaviour and to put things right. In speaking with an alleged perpetrator about a matter reported, the landlord is not making a finding of fact but facilitating an open dialogue and a reminder of tenancy responsibilities, where relevant. There is no indication of the landlord having done this.
The Landlord has stated dairy sheets were sent in response to the resident reports over the years, but the resident has explained she never received them. Because of this it is impossible to attribute the failed usage of dairy sheets to either party. But given diary sheets are not the only method of gathering evidence, there would have been an expectation for the Landlord to use other methods to do so. But this does not seem to have happened.
Gathering evidence is a crucial part of the investigation into ASB and supports not only serious and last resort measures such as pursuing eviction proceedings but also non-legal measures, such as the agreement of ‘ABCs’, the mediation process and warning letters. Whilst there is evidence of the landlord having taken some of these measures in the past, it failed to establish a plan to tackle the sustained ASB reports. On most occasions the landlord has only spoken with the resident about the incidents, but this course of action is unlikely to help it gather the required evidence.
Whilst the landlord had investigated some of the resident concerns, there is no information as to how it agreed with the police to better support the resident, as it said it would do and no information as to the outcome following it advising the resident that it was assessing whether legal proceedings could be commenced in December 2019 – an extreme response given that there was no indication of it first taking lesser measures. The landlord failed to communicate effectively throughout – including not responding at all to some reports of ASB.
The landlord’s reasons for closing ASB reports and/or cases were misguided; just because a resident hasn’t reported an issue to the police, does not render the landlord helpless in its attempts to address reported ASB. Similarly, if a matter has been reported to the police, this does not negate the landlord’s responsibility to address ASB.
Without evidence it is difficult to take any action and where counterclaims are made the landlord must also consider this and treat the claims equally, particularly in instances where there is little supporting evidence. But counter-arguments do not mean that an ASB case should automatically be closed. The wider context of the situation should always be considered and attempts to gather evidence made, which was not done in this case.
Also the Landlord should not choose whether to investigate a report of ASB based on how likely it is to be proven. Just because it has not been able to gather evidence in a previous case, does not mean it should assume the same for subsequent reports. The Landlords failure to investigate all reports is counterintuitive and unacceptable.
Turning to the landlord’s complaint handling, it was appropriate that it explained that it could not look into historic matters, for the reasons set out earlier in this report. However, it then appears to have found that it sufficiently “investigated” the more recent matters. Whilst there is evidence of it investigating some matters it failed to respond to others. The landlord should have investigated all reports, regardless of whether it felt they would be upheld. Not investigating all reports was unfair to the resident and would have likely negatively affected any future action plan proposals.
It is not clear what the landlord’s offer of £25 was for; “delay at the time” does not specify whether it is referring to delay in its complaints handling (which was significant) or delay in responding to reports of ASB. Although the resident had not initially specifically stated that she wished her complaint to be escalated, she continued to state her dissatisfaction with the landlord’s response to her reports and complaint outcome for some time. Based on the continued contact from the resident It would have been reasonable for the landlord to be proactive and reach out to resident to clarify whether she wanted her complaint escalated.
The landlord is required to facilitate the complaints procedure and reasonably provide guidance where needed. This might include reminding a resident that if she remains dissatisfied with the outcome of her complaint, the option is open to her to request escalation of the matter to stage two of its complaints procedure and explain what is required of her in order to do this. In not doing this, despite the resident’s clear disagreement there was a lengthy delay in progressing the complaint to conclusion, which could have been avoided.
The landlord’s response to the complaint did not demonstrate empathy with the situation and the distress felt by the resident over a protracted period of time; irrespective of findings, responding to a complaint is an opportunity for a landlord to demonstrate that it has heard and understood what is being expressed and a chance to seek to move forward and repair any damage to the landlord-resident relationship.
The landlord did not attempt to investigate or resolve all the issues, nor demonstrate understanding and empathy. It offered £25 for the delay in issuing is stage one response but failed to acknowledge how its inaction attributed to the significant delay in issuing its stage 2 response. The Landlord missed opportunities to provide a way forward as to resolving the issues, nor drew a satisfactory line under some or all of them, as appropriate.

Determination (decision)

In accordance with paragraph 54 of the Scheme, there was Maladministration by the landlord in respect of its handling of the resident’s reports of anti-social behaviour (ASB);
In accordance with paragraph 54 of the Scheme, there was maladministration by the landlord in respect of its handling of the resident’s associated formal complaint.

Reasons

The landlord failed to investigate all the matters reported. Or communicate effectively and manage expectations. It did not make attempts to set out an action plan, take steps to gather evidence or to facilitate any way forward.
The Landlord failed to inform the resident of the outcomes of its investigations into ASB, causing unnecessary distress.
The landlord did not help to facilitate the complaints procedure, responded to the complaint inappropriately late and found that it investigated the reports of ASB when it had not.
Furthermore, it offered £25 compensation in recognition of delay although did not make clear what delay this was in relation to. It failed to demonstrate that it had heard and understood the complaint or identify any next steps to resolve matters.

Orders

The Ombudsman orders the landlord to:
1. pay the resident £350 compensation (£200 for its handling of the ASB; £100 for its complaints handling; and £50 the distress and inconvenience caused);
2. offer to meet with the resident to discuss any current issues with ASB. Where a meeting does take place (this must be done within a reasonable period of time), the landlord to put together an action plan with the resident, making clear what it will do and by when.
The action plan is to include any steps for evidence gathering and/or mediation offers or other actions it will take to address the situation. The landlord is to effectively manage expectations in doing so; to reiterate, the landlord is not responsible for neighbour disputes, only ASB. The landlord to provide a copy of this action plan to this Service.