Clarion Housing Association Limited (202209592)

REPORT

COMPLAINT 202209592

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

The complaint is about the landlord’s handling of:
1. The resident’s reports of Anti-Social Behaviour (ASB).
2. The resident’s concerns about the fencing at the property.
3. The Ombudsman has also investigated the landlord’s complaint handling.

Background

The resident has an assured tenancy with the landlord which started on 23 February 1998. The property is a 2-bedroom house. The resident’s son also resides at the property. The landlord said it has no recorded vulnerabilities for the resident. However, the resident said the landlord was aware she has anxiety (causing severe panic attacks), depression, and previous suicidal ideation.
On 11 March 2021, the resident reported that her fence had collapsed due to high winds. The resident said she felt vulnerable due to the lack of privacy in her garden and was concerned about the safety of her property. The resident sent emails to the landlord in April, May and July 2021 and asked it to repair the fence. During these months, the resident also raised concerns with the landlord about it missing or cancelling several appointments for the fence.
On 8 July 2021, an email was sent to the landlord on the resident’s behalf, in which the resident said she had been verbally threatened by a neighbour and there had been racial abuse towards her. The resident again raised issues with the collapsed fencing as she said she was worried the neighbour would come over the boundary into her garden.
On 9 July 2021, the landlord wrote to the resident and said it was investigating the reports of ASB. It also asked the resident to complete diary records of any further incidents, provided the resident with an ASB action plan and said it would contact the neighbour to discuss the incident. On 26 July 2021, the landlord wrote to the resident and said it had spoken to her neighbour and issued a warning letter. The landlord said it would not take any further action, but it asked the resident to contact the police should there be any further incidents and report any issues to the landlord.
On 3 August 2021, an email was sent to the landlord on the resident’s behalf. The email explained that the resident was unhappy with the landlord’s delays and response to outstanding repairs and “ongoing complaints”. The landlord said it repaired the fence on 29 September 2021.
On 2 November 2021, the resident emailed the landlord and reported that:
1. Her neighbour had damaged her fence and there were gaps in the fence.
2. Her neighbour had threatened to “bait” the resident’s dog through the fence. The resident also reported verbal abuse and racial abuse from 2 neighbouring properties, which she said happened whenever she was in the garden. The resident said this was impacting her mental health.
3. The resident asked the landlord to inspect and repair parts of her fence.
From 29 November 2021 to 10 January 2022, the resident raised approximately 9 reports of ASB from neighbouring properties including verbal and racial abuse, death threats, issues with parking, noise nuisance and a high-pitched/frequency sound coming through her walls. On or around 2 December 2021, the resident was admitted to hospital due to attempted suicide. She had previously made the landlord aware of her intentions to harm herself because of the reports of ASB.
On 13 January 2022, the landlord contacted the resident and discussed the reports of ASB that she had made throughout November and December 2021. The landlord also issued an ASB action plan to the resident. It asked the resident to keep diary logs of the incidents and provide police reference numbers and contact details for her support worker. The landlord said it would liaise with the police, contact the resident’s support worker, contact witnesses to corroborate the resident’s reports and interview the neighbouring properties. The landlord said it would complete these actions by 28 January 2022.
On 14 January 2022, the landlord provided the resident with its stage 1 response. In its response the landlord:
1. Apologised for the delay in responding to the resident’s complaint. The landlord said there was a delay in contacting the resident because she had said not to contact her due to her mental health in December 2021.
2. Said it raised a repair job in April 2021 as the boundary fence had fallen. It raised a further job in May 2021 which it attended to in June 2021. The landlord said it repaired the fence on 29 September 2021. It explained that the resident raised no jobs or reports about damage to the fence until the resident raised a complaint in November 2021. The landlord said it would need a crime reference number for the damage to the fence, but it would arrange for an operative to attend and inspect the fence.
3. Said the resident had not raised a complaint about the handling of ASB, however, she did raise a complaint for the handling of the fence repair. The landlord said it had completed an ASB action plan and had added it to the resident’s ASB case.
4. Offered the resident £150 compensation (£50 for the time taken to resolve the complaint, £50 for repeat visits to resolve the outstanding repairs, and £50 for the delay in responding to the complaint).
The resident responded to the landlord’s stage 1 response on 15 January 2022 and said:
1. She was not aware she could raise an ASB complaint.
2. She felt ignored by the landlord and said its offer of compensation was not sufficient.
3. She wanted the landlord to reinforce the back fence. She also asked the landlord to raise the front and back fence to a level that would make it difficult for her to be overlooked by her neighbours.
Between 18 January 2022 and 9 February 2022, the resident raised further reports of ASB from neighbouring properties including noise nuisance, verbal and racial abuse, death threats and issues with parking. The resident also explained that her neighbour had smashed the fence with a broom which is what had created a gap in the fence, and it had allowed her dog to run out into the road.
On 11 March 2022, the landlord provided its stage 2 response. In its response, the landlord:
1. Apologised for the delay in responding to the resident’s complaint.
2. Acknowledged it failed to contact the resident between November 2021 and 13 January 2022 to discuss her concerns about ASB. It acknowledged a further delay in providing the resident with updates. The landlord also said it had not contacted potential witnesses in the timescale it had given to the resident. The landlord said it had since tried to contact the resident to discuss the case but could not get hold of her.
3. Said a Tenancy Specialist Officer (TSO) visited the resident on 2 March 2022, and the TSO would be liaising with external agencies to see what support it could offer to the resident.
4. Said it attended the resident’s property on 4 March 2022 to inspect the fencing repairs. The landlord said no further works were required to the fence. The landlord said it would not change the height of the fencing as this was not within its “responsibility for repairs guidelines,” but the tenant could do this herself and could contact the landlord for permission.
5. Offered the resident £510 compensation in replacement of the £150 offered in its stage 1 response (£50.00 for the delay in responding to stage 1 complaint, £50 for delay in responding to peer review, £100 failure to complete fence repair promptly, £250 failure to progress ASB case, £60 for four missed appointments on 30 April, 7 May, 14 July and 27 September 2021).
Following the attendance at the resident’s property on 2 March 2022, there is evidence that the landlord:
1. Interviewed the neighbours.
2. Interviewed the resident’s son who was also residing at the resident’s property.
3. Made enquiries with the police.
4. Reviewed the resident’s diary records.
5. Made enquiries with the resident’s support worker and mental health services.
6. Spoke with the resident and explained the findings of the investigation.
On 17 March 2022, the landlord closed the resident’s ASB case as it said there was a lack of evidence that the issues raised by the resident had taken place. The landlord said there were no recordings of the noise nuisance, no witness statements that corroborated the resident’s reports and no further action taken by the police as they were unable to verify any death or racial threats. The landlord requested follow-up mental health support for the resident and advised her to contact it if there were any further ASB issues. It also said it had inspected the resident’s rear fence and there was no damage or a hole that the resident’s dog could get through.
In referring the complaint to the Ombudsman, the resident said the landlord had suggested that reinforcing and raising the fence would not be an issue. To resolve the complaint, the resident said she wants the landlord to provide fencing that is sturdy and of a consistent height. The resident said raising the fence would provide adequate privacy. She said the landlord has only considered the boundary fence and not the dividing fence. The resident said she wants the landlord to provide a fence that does not incorporate her neighbour’s wall, as she said this would prevent her from maintaining the upkeep of the fence. The resident has also asked for a review of the compensation offered by the landlord and an apology from the landlord for its handling of her reports of ASB.

Assessment and findings

Jurisdiction and scope of investigation

The landlord’s internal complaint procedure investigated and responded to several issues including installation of grab rails and steps in the resident’s garden. However, the resident subsequently confirmed to the landlord that she only considered the issues defined above to be outstanding and the other issues of the complaint have been resolved. Accordingly, this investigation has focussed on and assessed the circumstances of the issues that remain outstanding, being the landlord’s handling of the resident’s reports of issues with the fence and antisocial behaviour.
The resident has informed this service that she has reported further issues of ASB since bringing her complaint to the Ombudsman. The resident said she has also raised a new complaint to the landlord in August and October 2023. Paragraph 42(a) of the Housing Ombudsman Scheme states:

“42. The Ombudsman may not consider complaints which, in the Ombudsman’s opinion: a. are made before having exhausted a member’s complaints procedure unless there is evidence of a complaint-handling failure, and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale”.

In the interest of fairness, the scope of this investigation is limited to the issues raised during the resident’s formal complaint from August 2021. This is because the landlord needs to be given a fair opportunity to investigate and respond to any separate complaints raised following this.
Any new issues that have not been subject to a formal complaint can be addressed directly with the landlord and progressed as a new formal complaint if required. The resident may be able to refer the new complaint to the Ombudsman if she remains dissatisfied once the complaint has exhausted the landlord’s internal complaints procedure.
This investigation has therefore focussed on events concerning the antisocial behaviour and the fence from March 2021 (when the issues were raised) to March 2022, when this complaint exhausted the landlord’s complaint procedure.

The resident’s reports of Anti-Social Behaviour (ASB)

The Ombudsman acknowledges that the incidents reported by the resident have caused her significant distress and anxiety. However, it is important to note it is not the Ombudsman’s role to determine whether ASB occurred or, if it did, who was responsible. What the Ombudsman can assess is how a landlord has dealt with the reports it has received and whether it had followed proper procedure and followed good practice, taking account of the circumstances of the case.
It is a concern that the landlord has no recorded vulnerabilities for the resident, despite being aware of the resident’s mental health conditions. The landlord was also aware of the resident’s attempted suicide in December 2021 as this required the involvement of the landlord’s safeguarding team. This is a failure of the landlord to create and maintain adequate records. The landlord should update its systems to reflect the resident’s vulnerabilities in line with its vulnerable resident’s policy. Failure to correctly record vulnerabilities can result in delays in assisting vulnerable residents in accessing additional services they may need. Given the known vulnerability of the resident and in accordance with relevant legislation, regulations and current standards, the landlord should have demonstrated it had taken steps to ensure it understood the resident’s needs. It should have demonstrated it had responded to those needs in the way it provided its services and communicated with the resident. This was a significant failure by the landlord.
The landlord’s ASB policy says it will investigate noise and other forms of ASB within 5 working days once the relevant threshold is met. The policy has 3 categories of ASB complaints – crime (category 1), noise (category 2) and other forms of ASB (category 3).
The policy states there is no threshold to investigate reports of ASB if the complainant is vulnerable. The landlord’s policy does not give a timeframe for dealing specifically with verbal abuse or death threats but states it will work with the police to investigate criminal behaviour.
Following the resident’s reports of serious ASB in November and December 2021, there was a significant delay in the landlord contacting the resident to investigate her reports. The landlord did not contact the resident to discuss her reports of ASB until 13 January 2022. This is considerably over the landlord’s ASB policy which says it will investigate ASB within 5 working days once the “threshold is met”. There is no evidence that the landlord monitored the resident’s reports to establish when the reports met its threshold for it to investigate. However, given the severity of the ASB reported and the resident’s vulnerability, it appears the resident’s case should have been handled under the landlord’s ASB policy regarding vulnerable residents.
The resident felt the landlord ignored her communications which she said had a significant impact on her mental wellbeing. On several occasions, the resident explained to the landlord the impact of the ASB and said the high-pitched sound, which she believed was coming from her neighbour’s property, was causing severe distress to her and her dog. The resident also sent the landlord numerous diary records between November 2021 and January 2022 reporting serious ASB including reports of death threats and racial abuse. In addition, the resident provided the landlord with police crime references for the incidents that she had reported to the police.
The resident has informed the Ombudsman that she became so distressed about how the landlord was responding to her, that she had a mental health assessment for her own safety. While the Ombudsman is not able to determine that the landlord caused injury to the resident – we can say that the impact on the resident over this period was likely to have been severe.
The resident also contacted the landlord on 1 December 2021 and said she intended to harm herself because of the ongoing ASB. Having considered the evidence, the landlord should have contacted the resident much sooner about her reports of ASB. The landlord could have offered the resident additional support or referred her to any relevant services at a much earlier point and it missed multiple opportunities to do so. This represents a significant failure by the landlord which resulted in unnecessary upset to the resident and an understandable feeling that the landlord was not taking her concerns about ASB and her mental health and wellbeing seriously.
The landlord said the delays in contacting the resident in December 2021 were due to the resident being in hospital. The landlord said the resident had told it she did not want to be contacted due to her mental well-being at the time. However, the resident said the landlord never tried to contact her. While it is reasonable for landlords to manage the needs of their residents and respond sensitively to any specific communication requests, the resident made a further 3 serious reports of ASB in December 2021. The resident continued to provide the landlord with diary records, police crime references and various reports of noise nuisance. Given the resident had informed the landlord about the risk to her mental health as a result of the reported ASB, the landlord should have responded to the resident’s reports in December promptly and appropriately, identifying any immediate risks to the resident.
The landlord failed to meet the timescales provided to the resident in its action plan and failed to provide regular updates to her. The action plan provided to the resident on 13 January 2022 said the landlord would liaise with the police, contact the resident’s support worker, and interview the resident’s neighbours by 28 January 2022. There is no evidence the landlord carried out any of these actions in January 2022. The landlord issued a new action plan on 28 February 2022 but did so without communicating with the resident to inform her of any updates. When a TSO attended the property on 2 March 2022, the landlord sent a third action plan to the resident. While the landlord completed all the actions set out in this action plan, and within the timescale given to the resident, this was over 4 months since the resident first raised reports of serious ASB.
The landlord failed to consider several non-legal tools to investigate the resident’s reports of ASB. The landlord failed to consider whether a sound recording device, such as a noise app, was necessary to investigate the noise issues the resident had reported. There is no evidence the landlord liaised with the Environmental Health Department to determine if the noises reported by the resident were causing a statutory noise nuisance. The landlord also failed to consider whether mediation between the resident and the neighbours was an appropriate option to resolve the dispute. Mediation is not compulsory, and the resident would be entitled to refuse to participate. However, the landlord should have considered whether this was an option to resolve the ASB.
The landlord failed to undertake a risk assessment for all parties at the start of the reported ASB and at significant milestones. In completing risk assessments and focusing on the harm caused, landlords can ensure that they can put measures in place at the first opportunity and reduce the impact of the ASB. The landlord should have considered the impact on the resident given the resident’s vulnerabilities as well as regular communication with the resident using their preferred method and at an agreed frequency.
The resident has also raised issues with neighbours parking in front of her property. The landlord has said the parking issues complained about do not amount to ASB. The resident said the landlord has not been clear about what the parking issues would be classed as so she can make the appropriate complaint. This service has not been provided with a copy of the resident’s tenancy agreement to establish whether there is the provision of a parking permit or designated parking bays.
While the landlord said the parking issues complained about do not amount to ASB, it would have been appropriate for the landlord to have discussed the resident’s concerns with her. More so, given her vulnerabilities. The landlord should have then provided further information or advice to the resident such as details regarding parking in the area and if appropriate, any follow-on services or support available to her.
While the landlord has acknowledged its failings and offered £250 compensation in an attempt to put things right, it failed to address the significant detriment to the resident and the offer was not proportionate to the failings identified in this investigation. The Ombudsman has therefore found severe maladministration for the delays and failings identified.

The resident’s concerns about the fencing at the property

The terms and conditions of the landlord’s assured tenancy states:

“18(b): You [the tenant] are responsible for maintaining any fencing that borders the garden or yard of your home”.

In this case, the landlord did not dispute responsibility for the repair of the fence when the resident had reported it had fallen.
The landlord’s repairs policy states that it is responsible for boundary walls and fencing but the tenant is responsible for dividing fences and fence upgrades. However, the landlord’s website states residents can “request repairs to dividing fences if [they] meet the ‘vulnerability criteria’ or there’s an antisocial behaviour risk”.
There was an inappropriate delay in the landlord repairing the fence when the resident first reported it had fallen in March 2021. The landlord did not complete the repair until 29 September 2021. During this time, the resident informed the landlord that the fencing was harming her mental well-being, and she felt vulnerable without any fencing. This was exacerbated by the resident’s reports of ASB in July 2021 as the resident said she was concerned her neighbour would be able to cross the boundary and enter her property.
The resident had to chase the landlord several times for repairs and the landlord failed to attend appointments. While the landlord acknowledged the delays in its complaint response, it failed to consider the resident’s vulnerability and failed to appropriately acknowledge the resident’s concerns that her neighbour could access her garden/property. This would have likely caused the resident distress and inconvenience.
There was a further delay in the landlord inspecting the fence after the resident reported a hole in it in November 2021. The resident raised concerns about the stability of the fence. The landlord said it attended the property on 4 March 2022 but that no further works were required. However, the landlord has not provided repair logs or details of the inspection. The resident has informed this service that the landlord undertook a further repair to the fence in September 2022, but she said the fence was still unstable.
It would therefore be reasonable for the landlord to address the resident’s concerns about the structure and stability of the fence by arranging a further inspection. If the boundary fence requires repair, it would be reasonable for the landlord to carry out any repairs under its repair obligations.
The resident said she needs the height of the fence to be increased so that neighbours cannot see into her garden. The resident said this would alleviate the ASB issues she had reported. However, the landlord has said it would not change the height of the fence, but the tenant can do this herself with permission. The resident said the landlord led her to believe that raising the fence would not be an issue following her call with the landlord on 13 January 2022. However, the landlord has not provided details of the call to confirm what it discussed and agreed with the resident.
There was a failure in the landlord’s response to the resident about her concerns with the fencing. The Housing Ombudsman Complaints Handling Code states landlords should “comply with the Equality Act 2010 and may need to adapt normal policies, procedures, or processes to accommodate an individual’s needs. Landlords shall have a reasonable adjustments policy in place to address this.”
It would have been appropriate for the landlord to address the resident’s vulnerabilities and provide further detail or explanation of its reasons for not being able to raise the height of the fence. In summary, while the landlord correctly advised it was the resident’s responsibility for any fence upgrades at the property, it should have treated the complaint individually, not used a generic response, and visited to inspect the specifics of the individual case. It was required to consider making reasonable adjustments and sign-posting the resident for funding for a fence with the local authority.
The resident has said she cannot maintain the section of fencing that has incorporated a neighbouring wall due to access issues. However, the resident does not appear to have raised this issue or addressed it in the landlord’s internal complaints procedure. In the interest of fairness, the scope of this investigation is limited to the issues raised during the resident’s formal complaint. This is because the landlord needs to be given a fair opportunity to investigate and respond to any reported dissatisfaction with its actions before the involvement of this service as in line with paragraph 42(a) of the Scheme. Any new issues that have not been subject to a formal complaint can be addressed directly with the landlord and progressed as a new formal complaint if required. However, the landlord may wish to consider acknowledging these concerns as part of its inspections of the fencing and assessing other potential resolutions, given the previously mentioned vulnerabilities and access issues raised by the resident.
While the landlord has offered an apology and £100 compensation for the delay in repairing the fence, the resident had to chase for the repairs to be completed which caused her distress and inconvenience. The resident also said the delays affected her mental health and she felt vulnerable during the period of there being no fencing in her garden. The landlord failed to fully consider the impact the delays had on the resident and the distress and inconvenience it caused her in having to chase for repairs.

The landlord’s complaint handling

There were inappropriate delays in the landlord’s response to the resident’s complaints. On 3 August 2021, the resident complained about the landlord’s handling of repairs including delays in repairing the fence. The resident then raised an issue with ASB and further issues with her fencing on 2 November 2021. On 8 November 2021, the resident’s local MP contacted the landlord and asked for an update about the resident’s enquiry on 3 August 2021.
The Ombudsman’s Complaint Handling Code states that landlords should treat any expression of dissatisfaction as a complaint. It is not clear why the resident’s email on 3 August 2021 was not actioned as a complaint, given she had complained about the landlord’s handling of repairs and its communication with her. This is a failure in the landlord’s complaint handling.
The landlord did not respond to the resident’s escalation request of 15 January 2022 until 39 working days later. This was 19 working days over the landlord’s complaints policy which states it will respond to stage 2 requests within 20 working days. The landlord’s failure to respond to the resident’s complaint in line with its complaint’s procedure meant it missed an opportunity to address her concerns sooner and left the resident waiting for a resolution to her concerns. The landlord should have conducted a timely and appropriate investigation and response to the resident’s concerns.
Overall, there were failings in the landlord’s management of the resident’s complaint. It failed to effectively communicate with the resident at the earliest opportunity. There were delays in responding to the resident which contributed to her distress over a considerable amount of time. This service has found the landlord’s offer of compensation not appropriate to the identified failings.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was severe maladministration in the landlord’s handling of the resident’s reports of ASB.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s concerns about fencing at the property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s complaint handling.

Orders and recommendations

Orders

The landlord must, no later than 31 January 2024:
1. Provide a full written apology to the resident for the errors identified in this report. This letter must come from a member of the senior management team.
2. Pay compensation to the resident of £2,000 in replacement of the £510 offered by the landlord, broken down as follows:
  1. £1,500 for the distress and inconvenience caused to the resident by the delays in responding to her concerns of ASB.
  2. £300 for the distress and inconvenience caused to the resident by the landlord’s delays in responding and repairing the fencing.
  3. £200 for the failures in the landlord’s complaint handling.

The landlord should pay the compensation directly to the resident. The landlord can reduce the total compensation by any amount already paid to the resident.

Contact the resident to arrange a mutually convenient appointment for a full survey of the fencing to be carried out. The landlord should attempt to complete the inspection by 31 January 2024. The landlord should encourage its surveyor to provide their report within 10 working days of the date of the inspection. The landlord must then consider if it can make reasonable adjustments to the height of the fence as well as repair it. If it cannot, it must explain this to the resident and signpost her to the local authority for an assessment for reasonable adjustments and disability funding grant for the fence. The landlord must use all best endeavours to ensure this action is taken within a reasonable time, in any event, 56 days of the date of the inspection, or by the dates set out in any report provided by the surveyor. The schedule of work and action plan are to be shared with the resident and this service.
Update its systems to reflect the resident’s vulnerabilities as per its vulnerable resident’s policy.

The landlord must, no later than 31 January 2024, provide evidence of compliance with the orders specified in paragraph 56(a)-(d). It must set out its proposed completion date for any outstanding works.

Recommendations

The landlord should consider reviewing and amending its anti-social behaviour and harassment policy to give clear timescales when responding to reports of serious ASB.