Elim Housing Association Limited (202217527)

REPORT

COMPLAINT 202217527

Elim Housing Association Limited

15 March 2024

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 handling of reports of anti-social behaviour.

Background

The resident has an assured tenancy. The property is a 1-bedroom house at the end of a cul-de-sac. The resident has a diagnosis of autism.
There had been ongoing reports of anti-social behaviour (ASB) regarding the resident’s neighbour, and he had brought a previous complaint to this Service. In the previous determination (August 2022), the landlord was ordered to review its position regarding parking and complete a full ASB case review and to write to him with its full position. It complied with these orders.
The resident raised a complaint on 1 December 2022. This was following a series of communications in relation to ASB by a neighbour, including inappropriate parking, open meat and food packets being left on his driveway and front garden and the neighbour allegedly stealing recycling containers. In the complaint, he raised that:
1. The landlord was deliberately ignoring issues raised about the neighbour.
2. The neighbour was verbally aggressive and abusive and cannot be approached.
3. His health had worsened because of the ASB.
4. The neighbour had been stealing items.
5. The neighbour had, on two occasions, created noise nuisance by banging and hammering.
6. The landlord made excuses for the neighbour of why rules did not apply to them and why it could not take any action against them.
7. The tenancy agreement said to respect neighbours but the neighbour was allowed to “get away with breaking this”.
8. He had asked for an updated tenancy agreement to protect his rights about his parking space, but this had been refused.
The landlord acknowledged the complaint on 2 December 2022. It asked the resident to confirm its understanding of the complaint and offered to discuss this via a telephone call if preferred. It stated that the parameters of the complaint would be from the date of the ASB review letter, previously ordered by this Service, that it sent on 15 September 2022.
The stage 1 complaint response was made on 16 December 2022. It summarised the complaint as the landlord deliberately ignoring issues surrounding any complaints against his neighbour, complaints being repeatedly ignored with no response, its responses being inconsistent and that it had no regard for its tenants which was shown by deliberate protection of those causing problems. It did not uphold the complaint. It provided a log of communication and all responses of ASB complaints made between 15 September 2022 and 15 November 2022, which was the last report made prior to his formal complaint being made. It concluded that:
1. There was no evidence provided of the neighbour being aggressive or threatening so it could not investigate its response to something that it was not notified of.
2. It had offered a referral for support with his health due to the reports of ASB, but this was declined by the resident.
3. There was no evidence provided of the neighbour stealing from him so it could not investigate its response to this, and it advised him to report such concerns to the police.
4. The noise nuisance reported was on two occasions which were a few weeks apart and it was the first report of this kind – it said it was inevitable that noise could be heard from time to time but advised him to download the noise app or complete nuisance records and send these in for it to investigate.
5. There had been no evidence of it making any excuses and its responses had been appropriate.
6. It had provided him with a plan highlighting the designated car parking space and it did not need to provide an updated tenancy agreement.
7. It believed that the matters addressed in the complaint fell under the category of low-level neighbour disputes.
8. There had been one occasion where it had not provided a response to his report of ASB – it had investigated this and found it likely to be an administrative error and apologised for this.
The resident escalated his complaint to stage 2 on 20 December 2022. He said the response was not good enough and that the noise could not be normal noise if it was heard from a few properties away from his own. He also asked it to confirm how long did it need him to complain before it was counted as “deliberate targeted behaviour”.
The stage 2 complaint response was provided on 18 January 2023. The landlord did not uphold the complaint. It acknowledged that it had missed one communication via email from the resident on 17 October 2022, which had been identified at stage 1, and apologised again for this. It said there had not been any other instance of it not responding appropriately to complaints or issues raised. It clarified its position on the resident’s complaint:
1. With regards to the point of its responses being inconsistent, it referred to the letter it sent on 15 September 2022 as ordered by this Service previously – it confirmed its stance about who to report concerns with the parking to, as advised in the letter.
2. It asked for evidence of the noise nuisance to be provided through nuisance records or the noise app so that it could investigate this – it said the two occasions of banging were several weeks apart and could be considered as normal living noise if it was occasional, but he could provide the evidence for it to be investigated.
3. It clarified its actions on ASB were not based on the number of issues or complaints raised previously – it said it had taken appropriate action about ASB in relation to the neighbour and that matters identified in this Service’s previous determination had been addressed in full.
The resident escalated the complaint to this Service, and it became a complaint that we could investigate on 10 February 2023. The resident said he remained unhappy with the parking issues, food waste being left on his driveway and in his front garden and reported that the landlord had not done anything to stop this and advised that they could not do anything.

Assessment and findings

Scope of investigation

The matter of ASB from the resident’s neighbour has been ongoing for several years. The landlord’s internal complaints procedure focused only on events from 15 September 2022, when it issued its stance on the parking situation, as ordered in a previous Ombudsman determination. This report will therefore consider events and complaints from 15 September 2022 to the landlord’s final response letter on 18 January 2023.
The resident said that his health had been impacted by the ASB itself and its handling by the landlord. While this Service does not doubt the resident’s comments, we are unable to assess the impact on his health as this is beyond our expertise. In accordance with paragraph 42f of the Scheme, this would be more appropriately dealt with as a personal injury claim through the courts or liability insurance. This Service has considered the general distress and inconvenience which the situation may have caused the resident as well as the landlord’s response to the concerns he raised about his health.
The landlord advised the resident to report parking issues that did not occur on its own land to the local authority. The resident said that he was unhappy that the local authority then advised him to speak to his landlord instead. This Service cannot consider complaints which fall within the jurisdiction of the Local Government and Social Care Ombudsman (LGSCO). The resident can contact the LGSCO if he wishes to pursue this aspect of the complaint.

The landlord’s handling of ASB

It is relevant to note that the resident has reported a long history of ASB in relation to the neighbour and the landlord had previously offered mediation and appropriate action via an acceptable behaviour contract, but it seems these have been unsuccessful in resolving the ASB.
It was appropriate for the landlord to focus its internal complaints procedure on events and complaints from 15 September 2022 onwards. This is because ASB cases often have long and complex histories, and it needed to narrow its focus so it could investigate appropriately. This was the date that it sent the letter which was ordered by this Service in a previous determination. It would be reasonable for it to assess matters that arose after the letter was sent rather than similar incidents that may have occurred around the time of the previous investigation and determination by this Service. The resident did not dispute the timeframe focussed on in the landlord’s complaint procedure.
In the reports made by the resident to the landlord, the landlord did not refer to the matter as ASB and instead considered it to be a low-level neighbour dispute. Its ASB policy stated that “Certain behaviours may cause distress or irritation but not be treated as ASB. Low-level neighbour disputes or day to day living noise that is not excessive or unreasonable are unlikely to be treated as ASB.” It therefore did not complete an action plan or risk assessment with the resident because it was not considered to be an ASB case.
While it is the landlord’s responsibility to decide if an issue is classified as ASB or not, it must appropriately communicate its position to the resident and offer support. It is not the Ombudsman’s role to determine if behaviours complained about constitute ASB. However, we consider if, based on the evidence available, the landlord acted in line with its ASB policy and acted reasonably in the circumstances of the case when responding to such reports. This investigation found that the landlord mainly acted reasonably when responding to the resident’s ASB reports. By investigating his concerns and providing appropriate advice and support, the landlord followed its ASB policy and demonstrated it took the resident’s ASB reports seriously.
The landlord set out its position regarding the parking dispute in its letter on 15 September 2022. The letter detailed that if the resident’s driveway was being obstructed by a car parking on the street, he should report this to the local authority for it to investigate because it is outside of its own jurisdiction. It said if he had concerns with parking on its land, such as the driveway itself, he could contact the landlord and if it could identify the owner, it would make contact asking the owner to move the vehicle. It confirmed it does not have the authority to move the car.
The resident responded to this letter and asked the landlord to clarify what it meant by some of the points and referred to his diagnosis of autism in his understanding of the content. The landlord acted appropriately by rephrasing the content in plain language. Throughout the evidence provided, the landlord repeatedly asked if he needed any additional support and offered phone calls to explain any written communication which shows good practice in offering reasonable adjustments.
The tenancy agreement requires the resident to comply with ‘advice’ given by the landlord in respect of parking. This would in turn mean that all applicable residents should follow the advice in the letter sent on 15 September 2022. The resident asked for his tenancy agreement to be updated and reissued with the information from the letter. The landlord responded appropriately confirming that the letter was sufficient in showing its stance and his rights. It would have required legal advice and would likely have needed to review all tenancy agreements for the estate, and possibly wider estates, to change the tenancy agreement and so its position regarding this request was reasonable in the circumstances.
The resident submitted multiple pictures and reports of inappropriate parking. The landlord has provided evidence of its internal records in relation to prompt and appropriate responses to this. It showed that the landlord considered each report and reviewed all evidence in a timely manner. It gave correct advice that the resident needed to report obstructions of access to the driveway to the local authority because it was not on its own land and therefore could not assist. It also clarified its position in each report of inappropriate parking by stating that it could not evidence that there was a car parked on his driveway.
If the landlord had evidence of inappropriate parking on its land, it would need to address this as a breach of the tenancy agreement. It is understood that it had no evidence to support this action and therefore formal tenancy action was not proportionate and it was reasonable for it to not act against the neighbour.
This Service recognises that the parking issue has been an ongoing matter for the resident and whilst it cannot evidence this through the resident’s reports, it would have been appropriate for the landlord to complete unannounced or covert estate visits to view the parking situation at various times on a few separate dates. This would not have been an onerous action for it to take and even if it may not have resolved the issues, it would have at least reassured the resident that it was taking his concerns seriously and it was trying to find a resolution. This was a failing in the landlord’s service regarding the handling of the reports of ASB made by the resident, which the landlord considered via its complaints policy and not its ASB policy.
Overall, the landlord responded to the resident’s evidence appropriately. In the landlord’s stage 1 complaint response, it identified one instance of not responding to an email communication from the resident about parking issues. It apologised for this and said it had investigated this internally and found it to have likely been an administrative error. This was an isolated incident, and this Service acknowledges that mistakes can happen, especially when receiving multiple reports of similar issues.
Following a series of reports of parking related incidents, the landlord sought advice from the local authority and provided the response in an email to the resident on 15 November 2022. It confirmed that the vehicles shown in the pictures that he had provided were on a public highway and therefore it did not have any jurisdiction over the land. It was appropriate for it to seek external advice and once again clarify its position to the resident regarding the parking issues.
The resident responded to the landlord’s email on the same day and said that he was scared to leave the house because of the neighbour. It responded on 18 November 2022 and offered to refer him to support if he wished for it to do so. It was appropriate for it to offer this support, especially given its knowledge of the resident’s health needs, regardless of whether he wished to access this or not. He subsequently told the landlord he did not want any support or counselling in his stage 1 complaint which was made on 1 December 2022.
The resident said in his complaint, and subsequent complaint escalation, that the neighbour had caused noise nuisance on two occasions which were several weeks apart. The landlord’s response said that he should use either the noise app or noise nuisance diary sheets to record this for it to investigate. It is best practice to encourage evidence to be sent in when reports of ASB are made and the landlord acted appropriately by giving him different options to suit his needs best to record this.
The resident provided reports and pictures of food waste, such as open packets of ham and cat food, on his front garden and driveway. The landlord asked for evidence in response to the reports made on 31 October 2022 and 4 November 2022, but the resident was unable to provide evidence of this.
In response to the first report, the landlord said that he should not allow himself to get drawn in to “petty behaviour” which was an unhelpful comment by the landlord, given the history of reports of ASB from the neighbour. However, it was appropriate for the landlord to not take any formal action against the neighbour without evidence as this would not be proportionate, in line with its ASB policy and statutory guidance.
The landlord responded to the second report, stating that it had been very windy recently and that without evidence of the neighbour placing the waste there, it could have likely and easily blown from somewhere else. It asked if the resident had seen the neighbour place it there but it is understood that he did not respond.
It was appropriate for the landlord to not take any formal action without evidence but it would have been good practice for it to issue a letter to residents on the estate with advice about protecting loose waste items in windy conditions. This would have likely installed reassurance in the resident that his concerns were being addressed.
In the resident’s complaint, he said that he was experiencing issues of the neighbour stealing his items and recycling containers which had caused him to arrange for parcels to be sent to other properties and not using his washing line outside. There has been no evidence provided to this Service that the landlord had received evidence of this occurring and therefore it was appropriate for it to not address this matter in its complaint response, other than asking for evidence to be submitted so it could investigate this. Similarly, it is understood that the landlord was not provided with any information regarding verbal aggression or abusive behaviour displayed by the neighbour and so it had asked for evidence of this too. This was a reasonable response in the circumstances.

Determination

In accordance with paragraph 52 of the Scheme, there has been service failure in the landlord’s handling of reports of anti-social behaviour.

Orders and recommendations

Orders

Within 28 days of the date of this determination, the landlord is ordered to write to the resident to apologise for the service failures identified in this report.
Within 28 days of the date of this determination, the landlord is ordered to pay £125 compensation to the resident for the distress and inconvenience caused by its handling of reports of ASB.
The landlord should reply to this Service with evidence of compliance with the order within the timescale set out above.

Recommendations

It is recommended that the landlord produces a leaflet with advice about considerate parking which can be issued when there are repeated neighbour disputes about parking.
It is recommended that the landlord produces a leaflet with advice about how to best secure waste in adverse weather conditions which can be issued when there are repeated neighbour disputes about waste being found around the estate.
It is recommended that the landlord should consider sending both leaflets to the residents on this estate.