Clarion Housing Association Limited (202007620)

REPORT

COMPLAINT 202007620

Clarion Housing Association Limited

10 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:
1. The landlord’s response to the resident’s reports of anti-social behaviour (ASB) from their neighbour.
2. The type of tenancy the resident has.
3. The landlord’s handling of a mutual exchange.
4. The landlord’s complaint handling.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman 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.
Paragraph 39(e) of the Housing Ombudsman Scheme sets out that

The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising

The resident’s tenancy commenced in 2013. It was the resident’s responsibility at that time to ensure that they were satisfied with the type of tenancy offered by the landlord. The resident raised this issue alongside their complaint about the handling of their mutual exchange application in 2018. This was around five years after the tenancy was granted. Therefore, this Service cannot consider this part of the resident’s complaint.

Background and summary of events

ASB Policy

The ASB policy defines ASB: 1.1. ‘Anti-Social Behaviour’ (ASB) can take many forms, ranging from noise nuisance, criminal damage, verbal abuse and other types of criminality.
1.5. This policy applies to customers of all tenures living in a home owned or managed by Clarion, including: general needs, supported and sheltered housing, temporary accommodation, market and intermediate rent, service users and licensees. It also applies to customers in leasehold and shared ownership properties. If necessary we may take legal action under the terms of the tenancy agreement, lease, licence and other relevant legislation available to us.
1.8. Where ASB is the result of criminal activity we will expect residents to report criminal behaviour to the police and we will expect the police and other statutory agencies to take action where they have sufficient evidence to do so. 1.9. We recognise the importance of working collaboratively with the police and local authorities to support and encourage their role in enforcing the law. We will also use the evidence they provide (such as details of calls or a criminal conviction) together with evidence we may obtain to take enforcement action where appropriate. 1.10. We recognise the detrimental effect that ASB can have on the lives of our residents and communities but it is important that complainants and victims of ASB are clear about both the circumstances in which we can intervene and the sanctions available to us.
The ASB policy defines ASB as: 3. 1. Anti-social behaviour is defined by Section 2(1) of the Anti-social Behaviour, Crime and Policing Act 2014 as: a) conduct that has caused, or is likely to cause, harassment, alarm or distress to any person, b) conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises, or c) conduct capable of causing housing-related nuisance or annoyance to any person. This definition sets the legal threshold that must be met in injunction applications, and in possession proceedings the discretionary grounds for possession define ASB as: Where the tenant or a person residing or visiting the property (a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality.
Specific Standards 5.1. We will categorise ASB complaints as follows: Crime (category 1) – we will work with the police on a collaborative basis to tackle criminal activity in our neighbourhoods; we will take action to enforce tenancy conditions and refer victims to relevant support agencies, while the Police investigate the criminal behaviour and bring charges against the perpetrator. We will not generally lead on resolving such incidents, but in some serious cases if it is appropriate to do so, we will explore our options for taking our own legal action such as an ex parte injunction. Noise (category 2) – we will investigate cases within 5 working days when our threshold is met. We will initially encourage customers to try and resolve noise nuisance from neighbours between themselves and advise customer to report excessive noise to their local council’s environmental health team. We will try to work with the local environmental health service that have statutory powers to tackle noise nuisance and serve abatement notices on those responsible for the noise. Other forms of ASB (category 3) – we will investigate other cases of ASB within 5 working days when our threshold is met.
5.2.2. The thresholds for categories 2 (noise) and 3 (other ASB) are:  three separate incidents reported in the last 7 days by the same person or a member of the same household  five separate incidents reported in the past 28 days by the same person or member of the same household  Two separate incidents reported in the past 28 days by two or more people from different households

Complaints Policy

The landlord has 2 stages of complaints policy:

A. Complaint – If an initial attempt to resolve the query is not achieved, a formal complaint will be recorded and will be investigated. We will do all we can to resolve Customers issues and put things right. We aim to resolve complaints within 10 working days. If we’re unable to resolve your complaint within this time we will:  Aim to keep you informed.  Explain the reasons of why we are unable resolve your complaint.  Provide timescale of what’s involved to resolve your complaint and approximately how long your complaint will take.

B. Peer Review – At the conclusion of the complaint process, a customer may request a review or an escalation of their case. They will need to be clear on what they wish to be considered as their desired outcome and what specifically they are not accepting. We aim to resolve complaints within 20 working days. If we’re unable to resolve your complaint within this time we will:  Aim to keep you informed.  Explain the reasons of why we are unable resolve your complaint.  Provide timescale of what’s involved to resolve your complaint and approximately how long your complaint will take.

The tenancy the resident holds is a fixed term 5-year tenancy which started on 21 October 2013.
From information provided to this Service, the resident has been making periodic reports of ASB concerning their neighbour since the start of their tenancy.
On 4 September 2019, the resident formally requested that the landlord make alterations to their property and the surrounding area to help mitigate the ASB they were experiencing, which included neighbour’s gatherings, noise and drug use. They asked the landlord to increase the height of the boundary fence between their gardens. They also asked the landlord to make changes to the parking area, which they hoped would reduce the noise nuisance they experienced from mopeds.
The landlord did not address the request for alterations but asked the resident to consider providing witness statement in relation to the ASB reports to the landlord and the police, and particularly the neighbour’s gatherings, noise and drug use. The resident refused to do this, due to concerns that their identity could be revealed if their neighbour became aware of this through court action.
On 15 October 2019, the landlord wrote to the resident explaining that due to the resident’s refusal to make a witness statement its further action were restricted and closed the ASB case. The resident was advised to report any incidents to the landlord’s customer services if the neighbour’s behaviour continued.
Between November and December 2019, the resident submitted further ASB reports to the landlord. They explained that, alongside noise nuisance and drug use on the property, they now believed that their neighbour may be dealing drugs. The resident provided three crime reference numbers issued by the police in relation to the incidents they reported to the landlord.
The landlord logged those reports on 29 January 2020 and made attempts to contact the police for more information. On 19 and 27 February 2020, and 10 March 2020, it requested information from the police concerning its findings following reports of drug use. The landlord did not receive any information from the police and closed the case on 17 March 2020. There is no evidence that the resident was informed of this.
On 07 July 2020, the resident reported further incidents with parking and drug use. The landlord responded on 21 July 2020 stating that is would be contacting the police and would request a visit by the neighbourhood response officer. There is no evidence that the landlord followed up on this. The landlord wrote again to the resident on 10 August 2020, stating that it had been trying to contact them to discuss the ASB case on a few occasions and if the resident did not reply by 18 August 2020, it would close the ASB case.
The resident submitted a complaint to the landlord on 17 August 2020. The resident stated that they had only one missed call from the landlord and that it had made no further attempt to contact them. The resident was also dissatisfied with the timeframe provided for a response as they received the landlord’s correspondence on 12 August 2020. They raised concerns about the overall handling of the ASB cases, and particularly that they received letters of closure after they submitted reports of ASB instead of any investigation. They complained about lack of communication and that the landlord had not provided any names of the person dealing with the ASB case. The resident explained that the frequent change of staff dealing with their reports made it difficult to follow up on the correspondence.
The landlord closed the ASB case on 18 August 2020.
This service has not seen any evidence of correspondence between the landlord and the resident until the resident raised a further complaint on 18 October 2020. The resident requested for a specialist to deal with the ASB issues they experienced. The resident complained about:
1. The landlord’s response to their ASB reports over the last year including the landlord’s lack of response to their request raised in September 2019 for adjustments to be made to the front parking area so that the noise and the smell of fuel from the moped were reduced.
2. The resident also explained that the neighbours had installed raised decking in part of their garden which bordered with the resident’s garden, which they understood the landlord had approved. They explained that the neighbour and their guests now had a clear line of sight into their living room. The higher decking made the fence even lower and as described by the resident – quarter length. They requested the fence to be replaced with higher panels so that the neighbours and their visitors would not have a direct look into the resident’s garden and living room while sitting in the erected decking area.
3. The resident advised the landlord that the police had suggested they move. However, they had previously encountered difficulty when trying to exchange their property as they did not have a secure tenancy. The resident was also dissatisfied that the landlord provided information about their tenancy to a potential applicant when trying to exchange their property, which they believed deterred the applicant from completing the exchange.
The resident also provided police case reference numbers for the most recent incidents reported in September 2020. They asked the landlord to refrain from writing to the neighbours because following police’s and neighbourhood officer’s visits in the past, the resident and their family had experienced episodes of intimidation and accusation from the neighbour and the visitors. The resident explained that they had to change the schools of their children in order to avoid further incidents. However, the resident explained that they appreciated previous visits and the support provided by the neighbourhood officers.
The landlord responded on 20 October 2020 asking the resident for police reference numbers and further information.
The resident contacted this Service on 20 October 2020 requesting assistance with the complaint. This service forwarded the resident’s complaint to the landlord on 22 October 2020 and requested a response.
The landlord responded at stage one of its complaints process on 12 November 2020. The landlord explained that it had discussed the issues with its neighbourhood officers. It confirmed that in the past the resident had refused to provide witness statement and left the landlord reliant on working with the police.
The landlord stated that it had not received any recent evidence and contact from the police. Therefore, the resident should complete diary sheets for the landlord to evidence what was happening and when. The landlord explained that it would not raise an ASB case until it received contact from the police. It explained that it was aware of the police regular visits in the past, but as nothing had been proven, the evidence was insufficient to proceed with further action.
The landlord explained that without knowing the identity of the moped users it was not able to take action against them and advised the resident to continue reporting those issues to the police.
In its response, the landlord refused to replace the existing fence at the property. It suggested that the resident applied for permission to do this themselves.
The landlord acknowledged that the resident’s fixed term tenancy was less ‘secure’ than an assured one and this could affect the decision of a potential mutual exchange applicant. It stated that the resident’s tenancy was due for review, and depending on income, savings, household, conduct of Tenancy, if the resident was offered another five years, it would be a good time to apply for a Mutual Exchange as they would have five years remaining on the Tenancy.
The resident escalated their complaint on 15 November 2020. The resident explained that the reason for their dissatisfaction was:
1. The landlord’s handling of the ASB case:
  1. The landlord has not addressed the resident’s request for an actual tenancy specialist experienced with drugs use and sensitive issues to be assigned to the case.
  2. The resident explained that they had been reporting incidents of ASB and drug use to the police since 2018. They had provided the landlord with police reference numbers, however, it repeatedly re-requested these. They stated that they understood that the police had contacted the landlord, and therefore disputed its account that it received no information from the police.
  3. The resident reminded the landlord that it had not responded to the concerns raised on 17 August 2020 in relation to closing the ASB case, overall handling of their reports and communication issues.
2. The resident explained that the mopeds that were causing the nuisance belonged to the neighbour’s child and visitors. This has been previously reported to the police and the landlord. The resident also explained that a GP letter was provided in relation to the effect the moped fuel and noise has on the resident’s family members and the landlord did not address it. The resident was dissatisfied that the landlord refused its proposal for alterations of the parking area which they believed would resolve the issue.
3. In relation to the fence, the resident explained that they did not believe the fence was built high enough, that it compromised their privacy and provided little deterrent to someone who may wish to access their garden.
4. The resident was unhappy that the landlord had provided information about their tenancy type to a potential applicant wishing to mutually exchange properties with them. They understood that this had deterred the applicant from progressing with the exchange. The resident asked the landlord to change their tenancy type.
The landlord contacted the resident on 19 November 2020 and acknowledged it had opened another ASB case following their complaint.
Following this, there was regular correspondence between the landlord and the resident between 25 November 2020 and 26 January 2021. During this period, the resident provided details to the landlord of the incidents that occurred since September 2020, including use of drugs, dangerous driving, noise disturbances from revving mopeds and the neighbour parking across two parking spaces.
The resident explained that they had reported some of these incidents to the police on a few occasions, who had attended the property approximately five times for the period from September to November 2020 and committed to regularly patrol the area.
The landlord acknowledged this and explained it had contacted the police. It also requested that the resident completed and submitted incident diaries.
On 11 December 2020, the resident contacted this Service to explain that they had not yet received a response to their complaint of 15 November 2020.
This Service contacted the landlord on 22 December 2020 and asked it to respond to the resident’s complaint.
On 26 January 2021, the resident sent diaries about the ASB and videos of the neighbour’s son revving his moped to the landlord. On 28 January 2021, the resident made a further request that the landlord increased the height of the fence in their garden.
On 29 January 2021, the landlord issued its final response. The landlord apologised that it had not escalated the complaint following the resident’s request of 15 November 2020.
1. The landlord acknowledged that the resident had made several reports of ASB over the last year. However, their recent case was closed on 18 August 2020 as the resident had provided no further supporting evidence.
2. The landlord stated that as a result of the resident’s recent reports from September 2020 onwards, the Tenancy Specialist team had been involved and explained that it had been in regular communication with the resident and police. The landlord stated that it would assess the diary sheets recently provided by the resident.
3. The landlord explained that it had discussed the ongoing issues with the police and agreed to use a joint approach when dealing with reports of ASB in the future. The landlord was satisfied that it had dealt with all the resident’s reports of ASB in line with its policy.
4. The landlord restated its position in relation to the fence – it would not replace this, but would allow the resident to do so. The landlord committed to continue to work with the resident and their neighbours to resolve the issues about the decking and the neighbour’s behaviour towards the resident.
5. The landlord refused the resident’s request to alter the car park. It believed that the proposed alterations were not justifiable and would not provide a viable resolution because this would significantly change the layout and the frontage of other properties. Additionally, the landlord explained that due to the presence of another parking in the close, which could be used by the mopeds, these alterations would not make a significant change. The landlord agreed to continue to monitor new reports as part of the resident’s ongoing ASB case.
6. The landlord reviewed the resident’s tenancy and acknowledged that the type of the tenancy had prevented the resident from being able to move forward with a mutual exchange to an alternative property. The landlord agreed to change their fixed term tenancy to an assured tenancy.
The resident brought their complaint to this Service on 03 February 2021 via their local councillor. The resident explained that they remained dissatisfied with:
1. The landlord’s overall handing of their ASB reports and its consideration of the impact this had on the resident and their family.
2. The resident stated that the issues were still ongoing, and he did not feel supported by the landlord.
3. The resident was dissatisfied with the landlord’s refusal for any alterations to the garden fence and the parking area.
4. They were unhappy that they had been unable to exchange their property due to their tenancy type
Following the landlord’s final response there is evidence of regular correspondence between the resident and the landlord’s Tenancy Specialist team in February 2021. During this correspondence exchange, the resident reported additional incidents of gatherings, use of cannabis in the neighbouring property during lockdown and revving of a motor bike by the neighbour. The resident stated these had been reported to the police and they had requested that the landlord sent a neighbourhood officer to visit the area.
The landlord explained that due to the lockdown it was unable to send an officer, but it would contact the police and collaborate with them to resolve the issue. On 11 February 2021, the landlord stated that it had issued a formal warning to the alleged perpetrator and asked the resident whether they were willing to provide witness statement and attend court should the behaviour continue, and further enforcement action had to be taken. There is no evidence of the resident’s response.
On 01 March 2021, the resident agreed to provide diary sheets relating to noise nuisance from motorbikes.
The landlord informed this Service that on 01 March 2021, it had made attempts to contact the alleged perpetrator over the phone and then had exchanged emails with them to raise the ASB issues.
On 07 March 2021, the police informed the landlord that it would not take any further action. On 10 March 2021, the resident reported to the landlord that there was no smell of cannabis for the last several weeks. However, the motorbike issue was still ongoing, and they would provide the diary sheets regarding this to the landlord.
In June 2021, the landlord informed this service that it had closed the ASB case, because following a review of video footage provided by the resident, it had not evidenced any excessive behaviour in relation to the moped revving.

Assessment and findings

The landlord’s handling of the ASB case and its response to the alteration request to the fence and the parking area.

In cases concerning ASB or noise nuisance, it is not the Ombudsman’s role to ascertain whether the ASB occurred, but rather, to assess how the landlord responded to the reports of ASB and whether its response was in accordance with its policies and procedures, and whether it is appropriate and reasonable in all of the circumstances.
The resident began reporting reoccurring ASB to the landlord in November 2019. The landlord’s records show that it opened an ASB case and contacted the police for further information. It did not receive a response from the police and closed the ASB case in March 2020. There is no evidence to show that it provided an update to the resident.
The resident did not make another ASB report until July 2020. In response, the landlord agreed to contact the police for more information. There is no evidence that it did.
The landlord then wrote to the resident on 10 August 2020, informing them that it would close their ASB case if they did not contact it by 18 August 2020. This was the first information the resident received in response to their ASB report.
The resident responded on 17 August 2020, raising their concerns about the landlord’s handing of the ASB case and the short timeframes provided for a response. Despite this correspondence, the landlord closed the ASB case due to “no contact from the resident”. The resident submitted a complaint about the handling of ASB reports on the same day.
The landlord indeed opened ASB cases in response to the resident’s reports. However, there is no evidence to show that it provided the resident with information about how it handled these reports, or the outcome.
The resident contacted this Service for assistance with progressing their complaint with the landlord. Following this Service’s intervention, the landlord began to engage with the resident to try to resolve their ABS complaint. Prior to this, there is no evidence to show that the landlord took reasonable steps to investigate the ASB or inform the resident of any outcome.
As part of their ASB report, the resident explained that their neighbour had installed decking which was raised above ground level. They explained that this had increased the impact which noise and smoke from their neighbour’s property had. They also explained that this affected their privacy. To resolve this, they asked the landlord to increase the height of the fence between their properties.
The landlord refused this request, explaining that the current fence was fit for purpose and that this would be considered an improvement. The landlord had no obligation to provide a taller fence as the fence would usually be a tenant’s responsibility to maintain. The landlord did agree to allow the resident to carry out this work if they chose to do so, which was reasonable. The landlord also offered to continue to monitor any issues with ASB should this continue.
The landlord also considered the proposed alteration to the landscape of the front parking area and concluded that it was not reasonable to make any changes. It has provided a detailed response and this service finds the landlord’s decision to be fair. The landlord explained that it did not have evidence that the noise nuisance was perpetrated by its residents, nor was it satisfied that altering the car park would resolve this issue. The landlord was also concerned that it had an obligation to its other residents to maintain their access to parking on the estate. This was reasonable.

The landlord’s complaint handling

The resident brought complaints about the landlord’s handling of their ASB reports for the period from October 2019 until March 2021. The resident sought assistance from this Service pursuing the complaint because they encountered difficulties in raising and progressing the complaint with the landlord. When they first complained to the landlord in August 2020 it did not open a complaint. The resident found it necessary to seek the assistance of this Service to progress their complaint. It was not until this Service contacted the landlord that a complaint was logged. The resident waited from August until November 2020 to receive a reply. This was unreasonably delayed.
When the resident escalated their complaint, they asked the landlord to consider why it had not responded to their ASB reports of August 2020 and subsequent enquiries into this. The landlord did not address these issues.

The type of tenancy and the information provided during the Mutual Exchange

As set out above, this Service cannot look into whether the type of tenancy issued to the resident was correct, as this occurred in 2013 and should have been resolved at that time.
The resident complained that the landlord had provided information about their tenancy type to applicants wishing to exchange with their property, which they believed had deterred them from progressing with the exchange. The landlord explained that it was important to provide accurate information to applicants. It acknowledged that the type of tenancy the resident had may be a hinderance in completing an exchange, however, this Service cannot comment on this.
The exchange party is entitled to know the terms of the tenancy they will be assigned following a mutual exchange. The landlord has an obligation to provide this information to the resident. While the type of tenancy may have been an obstacle to successfully completing an exchange, the incoming resident should be provided with this information. This Service notes that, as part of its response to the complaint, the landlord agreed to issue the resident with a new tenancy agreement. There is no failure in the landlord’s handling of the mutual exchange in respect to the type of tenancy and the information provided.

Determination (decision)

In accordance with paragraph 54 of the Scheme there was maladministration by the landlord in respect of its handing of the resident’s ASB reports.
In accordance with paragraph 54 of the Scheme there was maladministration by the landlord in respect of its complaints handling.
In accordance with paragraph 39 (e) of the Housing Ombudsman Scheme the complaint about the type of tenancy is outside of the Ombudsman’s jurisdiction.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its handling of resident’s mutual exchange.

Reasons

The landlord did not take adequate action to investigate the resident’s reports of ASB from October 2019 until October 2020. It did not provide the resident with information following these reports and closed them without further contact. It required the intervention of this Service for the landlord to respond to the resident’s reports of ASB.
The landlord did not have any obligation to replace the fence or make alterations to the parking as part of its response to the reports of ASB, because there was insufficient evidence to identify the perpetrators of these specific issues or to suggest that such changes would mitigate the nuisance reported. Therefore, its response to the proposed parking alterations and fence replacement was reasonable.
The landlord failed to address the complaint in full and its responses were unreasonably delayed. It was necessary for the resident to seek the assistance of this Service in order to log and progress their complaint. As such the landlord failed respond to the resident’s complaint in a fair and reasonable manner and in line with its complaints policy.
In a mutual exchange, residents are assigned each other’s tenancy agreements. Therefore, the landlord has an obligation to provide applicants wishing to exchange properties with the resident with accurate information about the terms of the resident’s existing tenancy agreement. Ultimately, the landlord has considered the difficulties the resident experienced during mutual exchange and the effect the type of tenancy might have on any future attempts, and despite not having any obligation to do so, it has offered to change the tenancy. This is a fair and reasonable resolution to the resident’s concerns

Orders and recommendations

The Ombudsman orders that:
1. The landlord should pay a compensation to the Resident of £150 for failing to respond to the resident’s ASB reports in full.
2. The landlord should pay compensation to the Resident of £150 in recognition of its complaint handling.