Clarion Housing Association Limited (202124748)

REPORT

COMPLAINT 202124748

Clarion Housing Association Limited

22 December 2023

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 reports of anti-social behaviour (ASB), including racial harassment.

Background and summary of events

The resident has a shared ownership lease of the property. The property is located on the top floor of a purpose-built block. The resident has advised that he has a mental health condition.
Under the Regulator of Social Housing’s neighbourhood and community standard, social housing landlords are required to work in partnership with other agencies to prevent and tackle ASB. Landlords are specifically expected to take appropriate action to deal with ASB before it escalates, and tailor preventative measures towards the needs of tenants.
The landlord’s antisocial behaviour policy says the landlord takes ASB seriously and aims to balance enforcement action with prevention. It uses the definition of ASB provided by Section 2(1) of the Antisocial Behaviour, Crime and Policing Act 2014. This states that ASB is conduct capable of causing nuisance or annoyance to a person in relation to their occupation of their home. The landlord’s ASB policy further states that:
1. Where ASB is the result of criminal activity the landlord expects residents to report criminal behaviour to the police and it will expect the police and other statutory agencies to act where they have sufficient evidence to do so.
2. The police will usually lead on resolving such incidents, but in some serious cases if it is appropriate to do so, the landlord will explore options for taking its own legal action such as an ex parte injunction.
3. Where criminal behaviour has been reported, the landlord will contact the resident within 24 hours, and they will be asked to call back with a crime reference number. The case will then be transferred to the appropriate team who will interview the resident and complete an action plan.
The landlord’s ASB procedure details the steps staff will need to take when dealing with complaints of antisocial behaviour and crime. It includes guidance on thresholds for taking action. It also sets out the investigation procedure. This involves liaising with other agencies, interviewing the complainant and gathering evidence. The procedure states that “the source and nature of evidence may vary but may consist of statements or reports from witnesses, oral evidence from witnesses, sound recordings or hearsay.”
The landlord operates a 2 stage complaints policy. Stage 1 complaints should be responded to within 10 working days. If it is unable to resolve the complaint within that time, the landlord will provide an explanation and an amended timescale for response. If the resident remains dissatisfied, they can ask to escalate their complaint to stage 2. The landlord aims to resolve stage 2 complaints within 20 working days, although this can be extended on notice to the resident if this timescale cannot be adhered to.

Scope of the investigation

This Service notes that since the resident’s complaint was concluded, the landlord applied to the court for an injunction order against both the resident and his neighbour. As an alternative to the injunction order, the resident gave an undertaking to the court that he would not engage in anti-social behaviour.
As some of the incidents referred to in this complaint relate to legal proceedings against the resident, the Ombudsman has not investigated or referred to counter-allegations against the resident made by the neighbour. This is because complaints relating to legal proceedings taken by the landlord are outside of the Ombudsman’s jurisdiction to investigate.
The Ombudsman can investigate how the landlord had handled the resident’s reports of ASB up to the date when it issued its stage two complaint response. Events after that date, and information pertaining to the resident’s conduct, relate to the court proceedings and are therefore not included.
The Ombudsman has restricted this investigation to events between the 31 August 2021 and 7 April 2022.

Summary of events

The resident reported an incident involving his neighbour on 31 August 2021. He said that, in an argument over a parking space, the neighbour had racially abused him and then assaulted him. The resident agreed to report the incident to the police and provide the landlord with the crime reference number.
On 1 September 2021, the resident provided the crime reference number to the landlord. It had been logged as a hate crime. The landlord agreed an action plan with the resident, and this was confirmed in a letter.
The landlord sent an email to the police the following day requesting further information. The police responded on the 7 September 2021 confirming that the incident was being investigated.
The landlord logged that it would undertake further enquiries regarding the allocation of parking spaces and seek an update from the police. It noted that it had not interviewed any witnesses as the police were seeking an informal resolution. It was agreed that residents would be sent a letter on 24 September 2021 advising them to use their specific allocated parking space and requesting that they keep to the terms of their lease.
On 4 October 2021, the landlord spoke with the resident who confirmed that there had been no further incidents and that he had not heard any more from the police. It was agreed that the landlord would contact the resident again on 20 October 2021.
The landlord reviewed the case on 20 October 2021. It had not been able to contact the resident by phone that day. On the basis that no further complaints had been received, it concluded that the case would be closed. A letter to this effect was sent to the resident the following day.
On 31 October 2021, the police confirmed that they would be taking no further action as one of the parties would not agree to engage with the restorative justice process.
On 13 January 2022, the resident called the landlord to report an incident with his neighbour that was ongoing at the time of his call. The officer responding to the call overheard the neighbour being abusive towards the resident. The resident was advised to call the police and the landlord also telephoned the police.
The resident called the landlord on 14 January 2022. He wanted to speak to someone about an email he had received about the steps he would need to take to provide evidence in support of his reports. The landlord returned the resident’s call on the following working day. The resident reported that the neighbour had racially abused him. The landlord told him that the police would take the lead on an investigation. If there was sufficient evidence, it could take further action. The resident reiterated that he did not wish to keep incident diaries. The landlord replied that, without completed diary sheets, it may not have sufficient evidence to take further action. It agreed to call the resident on the 28 January 2022.
The landlord undertook a case review on 3 February 2022 and decided it would seek advice from an ASB consultant to decide on the next steps.
Calls were made to the resident on 8 February 2022 but there was no response.
On 9 February 2022, the resident raised a complaint about the landlord by telephone. He said that:
1. He had contacted the landlord two weeks ago, but no one had returned his call.
2. He had emailed three times for further information but while he had received one email in response, no-one had called him back on the Friday or the Monday as agreed.

He did not receive the landlord’s call on the 8 February 2022.

Following his call, the resident sent an email to the landlord complaining about poor communication. He said that he had called that day and was on the phone for an hour and a half, most of this time on hold. He said that he had asked on the 4 February 2022 for someone to return his call. He was assured someone would do so within 24 hours, but he had not had contact to date. He had said that he now wanted to move and to discuss selling the property back to the landlord. He had asked the sales team to call him back several times, but they had not done so.
The landlord called the resident in relation to his complaint on 10 February 2022. It informed him that they would look to respond within 10 working days.
An email was sent to the resident on 10 February 2022 in which the landlord advised that the police had allocated an officer to investigate the incident and that the landlord would visit the resident at home on 17 February 2022.
On 11 February 2022, the police informed the landlord that they did not have sufficient evidence against the neighbour and would be taking no further action.
The landlord telephoned the resident on 11 February 2022 to discuss his complaint. During the call, the resident said that his mental health had deteriorated because of his concerns about ASB. He raised that, some years ago, a former neighbour had seriously assaulted him. He was worried that issues with his current neighbour would escalate, given that the landlord had not taken action in response to his reports. The landlord made a safeguarding referral because of concerns about the resident’s mental wellbeing.
The resident sent an email to the landlord the same day, expressing concern that he had provided evidence to the landlord about the neighbour’s conduct, but no further action had been taken. He said that his calls had not been returned and he was unhappy with the landlord’s communication.
On 14 February 2022, the resident contacted the local authority to request a community trigger review.
The landlord’s internal correspondence, dated 15 February 2022, shows that it considered offering shuttle mediation to the resident and his neighbour. It also proposed that both parties sign up to a good behaviour agreement.
The landlord visited the resident on 17 February 2022. During the visit, the resident said that he would agree to engage in shuttle mediation and sign an acceptable behaviour agreement.
On 17 February 2022, the landlord provided an update to the resident’s complaint informing him that it was awaiting further information from the relevant officers. It signposted him to its sales team for information about the sale of his property.
On 22 February 2022, the landlord issued its stage one response:
1. It said that as the initial report by the resident on 31 August 2021 had been logged as a hate crime, the police had been contacted. This is because the police were required to lead investigations into reports of criminal behaviour. No further complaints were received, and the police confirmed that they were taking no further action. The case was then closed. The landlord said that it had acted in line with its policies and procedures. Going forward, however, it would make enquiries of the neighbours to see if reports could be corroborated, alongside the police investigation.
2. Regarding the second incident on 13 January 2022, the resident was advised to call the police. The landlord made a referral to the police the following day, interviewed the resident and completed an action plan. The resident was asked to record any further incidents on diary sheets and liaise with the police. The resident declined to record incidents on the diary sheets and the police confirmed that they were taking no further action.
3. The landlord advised that a safeguarding referral had been made when the resident had raised issues regarding his mental health. It also confirmed that the threshold for legal action to end his neighbour’s lease had not been reached so this action would not be possible.
4. The landlord upheld the resident’s complaint about call backs not being completed within the landlord’s Service Level Agreement but did not uphold his complaint about the handling of his reports of ASB. The landlord offered £50 compensation as redress for its failure to follow process.
The landlord called the resident on 22 February 2022 to discuss the contents of the stage one letter. It was recorded that the resident was dissatisfied with its response.
On 24 February 2022, the resident asked to escalate his complaint. The landlord acknowledged this request on 2 March 2022, however, a formal acknowledgement with a target response date was not provided until 21 March 2022. The later email advised that the response would be provided by 18 April 2022.
The landlord’s ASB consultants sent an email dated 25 February 2022, requesting further evidence, including statements from potential witnesses to the incidents and details of involvement with any other services.
On 16 March 2022, the landlord made enquiries of other agencies and third parties to obtain evidence regarding the incidents referred to by the resident.
On 1 April 2022, the landlord was advised by its ASB consultants that, based on the information provided, they considered that the landlord should apply for an injunction against both the resident and the neighbour to prevent them from engaging in conduct likely to cause distress or alarm.
The landlord provided its stage two response on 7 April 2022:
1. It said that it had followed its policy in relation to the resident’s reports. The threshold for enforcement action had not been reached at the time as there was insufficient evidence to support it.
2. It accepted that, while the police were the lead agency in investigating criminal behaviour, it should have been more proactive in obtaining witness evidence at an earlier stage.
3. An action plan which had been agreed on the 14 January 2022 had been followed. The neighbour had made counter allegations of ASB against the resident, which the landlord and the police had investigated. The landlord had since received independent reports of further incidents of ASB involving the resident and the neighbour and had determined that it was proportionate to seek injunctions against both.
4. It outlined the steps it would need to take, and the weight of evidence required to seek forfeiture of the neighbour’s lease. It said that it could not offer to purchase the resident’s home, nor did it consider that this action would be proportionate.
5. It concluded that the resident’s complaint had not been upheld.
The resident referred his complaint to this Service, and it was accepted for investigation on 2 August 2022.

Post complaint

The landlord wrote to the resident on 8 December 2022. In the letter, the landlord acknowledged that it had over relied on the police to resolve the initial incident that arose from the parking dispute and had assumed that the resolutions the police had suggested would be effective. This had delayed its investigation. It advised that there were some learning outcomes it had taken from his case. It had updated its internal case management audit procedures to ensure that evidence is sought at an early stage. It offered the resident £250 in compensation for the initial delay to its investigation.

Assessment and findings

The evidence suggests there is a history of the resident making reports of ASB involving his neighbour. It is acknowledged that the landlord responded to the resident’s ASB reports broadly in accordance with its ASB policy, in terms of procedure and response times. The matter was referred to the police on each occasion, given that the reports were of criminal behaviour. The landlord worked in partnership with the police in considering what further action to take. The options considered were mediation and acceptable behaviour agreements. These options were not pursued as one of the parties refused to engage with the landlord.
There were some limitations on the potential actions the landlord could take, given that both the resident and his neighbour were leaseholders. This would preclude the resident from being eligible for a housing transfer and, as the landlord’s ASB policy states “if a leaseholder breaches the terms of their lease, a court or First Tier property tribunal may grant forfeiture as the ultimate sanction. However, in practice they see this as a last resort option and are extremely reluctant to do so” The landlord required a high threshold of evidence for commencing proceedings for forfeiture and concluded that this threshold had not been met.
What is of concern to this Service, however, is the landlord’s decision not to undertake its own enquiries alongside the police investigation, following the incident in August 2021. The resident’s allegations against the neighbour were serious. They included racial harassment, actual and threatened violence. Further, there had been previous reports from the resident regarding his neighbour. It would have been open for the landlord to consider, once the police decided not to take further action, whether there was sufficient evidence to pursue civil proceedings against the perpetrator, where the evidential burden was lower. This would be in accordance with its policy which states that “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.”
As part of the investigation, the landlord should have taken steps to review the evidence provided and to establish whether the resident’s reports could be corroborated. It was premature for the landlord to close the resident’s ASB case once the police had decided to take no further action. The landlord’s investigation was therefore lacking which was a failing.
It is noted that the landlord did undertake further enquiries following the resident’s second report of ASB in January 2022, but this was following advice from its ASB consultants at the end of February 2022. It was only after this date that the landlord made enquiries of other agencies and potential witnesses to the incidents. There was an unreasonable delay between 13 January and 16 March 2022 when the landlord failed to progress the investigation appropriately. During this time, the resident had reported to the landlord that its failure to take action against his neighbour had impacted his mental health. In April, the landlord decided to apply to the court for an injunction against both the resident and his neighbour.
The landlord’s communication with the resident was also unsatisfactory. The resident was given conflicting information about what action would be taken. He was told that his telephone calls would be returned within 24 hours but was later informed that this was incorrect. The landlord also failed to manage the resident’s expectations and to give accurate information about timescales for response. Several of the resident’s calls were not returned. There is no evidence that the landlord contacted the resident on 28 January 2022 as agreed. This caused the resident distress and frustration. The landlord upheld this part of the resident’s complaint and, as a point of learning, it advised that it would keep him updated at regular intervals.
It is also noted that the resident had complained that his calls to the sales team were not being returned. The resident had expressed a wish to sell the property back to the landlord and wanted the landlord’s ASB team to support his request. In its stage 2 response, the landlord stated that “You have suggested that we purchase your home from you to enable you to move away from your neighbour. This is not something that we have a provision to offer, nor would I consider this proportionate in the circumstances” The landlord’s response was lacking. It may not have been within the role of the ASB team to support the resident’s request to sell his property. However, the resident’s complaint concerned the landlord’s service delivery as a whole. If problems in communication with the sales team were raised in his complaint, the landlord should have addressed this in its complaint response. It should have made enquiries of the sales team as part of the complaint investigation and provided a satisfactory response about contact and advice about its sales procedure.
Further, another neighbour had seriously assaulted the resident some years before. This incident had a detrimental impact on his mental health. The landlord was aware of this, and some incidents in preceding years where the resident had reported racial harassment. It is not clear to what extent this incident had been given weight by the landlord, if any, in assessing the resident’s vulnerability and his mental state in preparing an ASB action plan. While a safeguarding referral had been made when the landlord became aware of the resident’s declining mental health during a telephone call, it is not evident that the resident’s needs had been flagged at an earlier stage or that appropriate support had been offered to him.
In the landlord’s stage 1 and 2 complaint responses, it accepted that there were shortcomings in its investigation and that lessons had been learned. £50 compensation was awarded at stage 1. No further compensation was offered at stage two. After the resident had referred his complaint to this Service, the landlord undertook a review of his complaint and acknowledged that it had reviewed its processes to ensure that evidence is obtained at an earlier stage in its investigation. It also determined that the award of compensation should be increased to £250.
It was positive that the landlord reviewed and increased its compensation award in its complaints review of December 2022. It is not clear, however, why the landlord did not offer this amount when considering the complaint within its own complaint procedure. It appears to have been prompted to reconsider its position after the complaint was referred to the Ombudsman. This was a missed opportunity to potentially resolve the complaint at an earlier stage, and it is of concern that the landlord did not use its complaints procedure to address this matter.
Further, the landlord has not provided an adequate explanation of why the compensation award was increased in December 2022, some eight months after the conclusion of its internal complaints procedure. This leads this Service to conclude that, had the complaint not been referred to the Ombudsman, the revised offer of compensation may not have been awarded.
For this reason, the Ombudsman finds maladministration in the landlord’s handling of the resident’s reports of ASB. Further, the compensation of £250 offered was not sufficient to put right the impacts its failures had on the resident.
The landlord should pay compensation to the resident of £550. This includes an award for the distress and inconvenience caused to him by the delays in undertaking a full investigation of his reports. It also includes an amount to compensate him for his time and trouble in having to chase the landlord for updates. This award is in line with the Ombudsman’s remedies guidance where there has been a failure which adversely affected the resident. Further, the resident’s vulnerabilities have been considered as aggravating factors in assessing the detriment to him and consequently the level of redress awarded.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of the resident’s reports of ASB, including racial harassment.

Reasons

While the landlord broadly complied with its policies and procedures in its timescales for response to the resident’s reports of ASB, it delayed in undertaking a thorough investigation. Its communication was lacking, and it failed to record and consider the residents vulnerabilities in addressing his reports of ASB.

Orders and recommendations

Within 20 working days of the date of this report, the landlord is ordered to:
1. Pay the resident the amount of £550 which comprises of:
  1. £400 for his distress and inconvenience because of delays in investigating his reports.
  2. £150 for his time and trouble because of the landlord’s ineffective communication.
  3. This replaces the landlord’s previous compensation offer of £250.
2. Provide evidence to this Service that this amount has been paid.