Gentoo Group Limited (201817178)

REPORT

COMPLAINT 201817178

Gentoo Group Limited

24 February 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

1. The complaint is about the landlord’s handling of the resident’s reports of anti-social behaviour (ASB) by her neighbours.

Jurisdiction

2. 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.
3. After carefully considering all the evidence, in accordance with paragraph 39(a) and (i) of the Housing Ombudsman Scheme (the Scheme), the following aspects of the complaint are outside of the Ombudsman’s jurisdiction.
4. While requesting an update on the case, in January 2021, the resident mentioned that she considered the property to be unsafe due to its proximity to a car park. She described the position of the property and also mentioned that there were issues with damp and condensation. This issue of damp and condensation had been mentioned by her as a footnote to her complaint email of 13 February 2019, but it did not form part of the formal complaint. 
5. These matters have not been considered in this report as we have not considered any issues which did not form part of the formal complaint. The escalation of an ongoing complaint is not the appropriate forum for raising issues which have either not been reported to the landlord previously or were not being dealt with within the same complaint.  Paragraph 39(a) of the Housing Ombudsman Scheme (the Scheme) provides that the Ombudsman will not consider complaints which are made prior to having exhausted a landlord’s internal complaints procedure.
6. The resident states that the issue was affecting her mental health, as well as her husband’s.  However, this Service is unable to establish a causal link between reports of the health issues experienced by complainants and the actions of landlords. The resident may wish to seek legal advice about this, as a personal injury claim may be a more appropriate way of dealing with this aspect of her complaint.
7. Our position here is in accordance with paragraph 39(i) of the Scheme which provides that: ‘The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure’.
8. Any mention of these issues in the sections below are for contextual purposes only.

Background and summary of events

9. The resident and her husband are assured tenants of the property. For the purpose of clarity, any actions by either or both of them would be attributed to ‘the resident’ in this report and no distinction would be made unless necessary. 
10. On 6 December 2018, the resident wrote to the landlord regarding neighbours living in an adjacent property. She stated that there had been five incidents of ‘excessive noise’ from the neighbours’ property in the last two weeks. The noise included the banging of doors and other items, a dog howling and people screaming. This had occurred from 5 to 9:30 pm and she had called the Police. The resident stated that she had heard negative reports about the neighbours with respect to their previous accommodation and now found them to be ‘uncivilized, disrespectful and anti-social.’
11. The resident wrote to the landlord again on 14 January 2019 to report more noise and that they had often seen the male neighbour drunk and falling down the walkway. The resident had a health condition and this situation was an additional problem. She sent another email to the landlord, on 12 February 2019 in which she stated that she was not prepared to hold discussions on the issue with the landlord as it had ignored her previous correspondence. She further wrote to inform it that the neighbours did not deserve sympathy for their drunkenness and were not suited to the neighbourhood which was for the elderly.
12. On 13 February 2019, the resident wrote to the landlord to report ASB by the same neighbours. She stated that the issues began since October 2018 which was when the neighbours moved into the nearby property. She stated that they had been dumping many bags of food and animal waste in her green bin. She had advised that the green bin for the neighbours’ property had been damaged when the previous occupant lived there. However, they continued to use her bin. Other neighbours were making the same complaints about the neighbours, but they refused to get their own bin. The resident had seen a rat in the bin area and reported to the landlord who then provided a bin for the neighbour’s use.
13. The resident also reported that the male neighbour had mentioned that he was the carer for the female neighbour, his partner. She had heard lots of noise from the neighbours’ property on five occasions. This included doors being slammed; furniture crashing to the ground; and people shouting. She had reported to the Police, and also informed the landlord in a letter of 6 December 2018 that she thought a person was being murdered, but she had received no response. Another letter of 14 January 2019 to the landlord had also not been responded to. In her letters she had explained that the issues were due to alcohol abuse.
14. The resident stated that she had never seen the neighbour’s partner, until two weeks previously when she was confronted by her whilst hanging out her washing. The partner accused the resident of attempting to kill her animals and was very abusive. She had previously decided to fill in the gaps in the dividing fence between the properties due to the male neighbour ‘standing in a provocative manner in the garden and just glaring on several occasions.’ She began to undertake the works to the fencing on 9 February 2019 when the partner came out verbally abusing and accusing her.
15. The resident wanted to write to the landlord about this incident but there were further events of slamming of doors and crashing furniture in the neighbours’ property. This carried on from approximately 3:30 to 7:30 pm and the resident called the Police. The Police visited the resident to take their complaint on the issues at 8:00am on 12 February 2019 and also spoke to the neighbours. On the same day, the resident received the landlord’s response with respect to her letters of December 2018 and January 2019. She had asked to meet with it in these letters but had been ignored by the landlord, thus, she was annoyed to receive this response.
16. The landlord was suggesting a meeting at this time, but the resident did not see how this would help as the issues were due to serious abuse of alcohol. She had lived in the neighbourhood for a significant period prior to this time and there had been no concerns. She was unhappy that she had left her previous accommodation for similar reasons but was encountering the same in the area. She had a health condition and they were elderly, thus the situation meant that it was not a suitable living environment for them. Furthermore, she felt that the neighbour’s partner was not being properly cared for and should be in a ‘care environment’.
17. The resident had expressed her concerns to the Police as she worried about the likely consequences of the neighbour’s partner coming out with a weapon to attack other residents. She stated the neighbour’s partner was ‘mentally unwell’. The resident expressed her unhappiness at the landlord stating that she should call it and not the Police when there were further incidents. The situation was dangerous, and she was concerned for her safety. Other residents were concerned, and she had asked them to make notes of events. She would be seeking legal redress and taking the matter to the press if it was not resolved.
18. In its complaint decision to the resident, of 28 February 2019, the landlord stated that it had received a complaint in December 2018 about the neighbour having no refuse bin. It contacted the neighbour and the local council which then supplied a bin. It also informed the resident via voicemail that the issue had been resolved. Following the receipt of the complaint of January 2019 its staff members visited the neighbours to discuss the issues. The landlord apologised that the resident was not contacted to update her about the outcome.
19. The landlord stated that several members of staff had spoken with the resident about her complaint and she had ended the call without providing a reason or advising it about the outcome she was seeking. This had been the experience of other members of staff who had called to speak with her. It stated that the resident had shown an unwillingness to work with its staff members to resolve issues. It also repeated derogatory terms used by the resident in describing her neighbours in her emails and stated that all tenants have the right to live independently in their homes with its support.
20. The landlord concluded that its investigations had shown no evidence of the level of nuisance described by the resident but stated that it would monitor the situation and conduct an assessment using noise monitoring equipment. It noted that the neighbour had refuted the resident’s claims and made counter–allegations of noise and verbal abuse by the resident which had also occurred in public, following her further complaints of February 2019.
21. The noise monitoring equipment would be installed in the resident’s home on 1 March 2019 and the landlord would advise her about its use. It also advised her to keep a diary log of further ASB incidents by her neighbours whilst clarifying that the neighbours had been advised to do the same due to their counter–allegations. It provided the resident with contact details for reporting incidents but also stated that she could contact the Police if there was a serious threat to her outside its working hours. It suggested that she consider mediation with her neighbours as they were willing to engage in the process. It concluded by advising her about the timescales for requesting escalation of the matter if she was dissatisfied.
22. The resident wrote to her MP on 2 March 2019, expressing her dissatisfaction with the landlord’s stage one decision and stating that it had no evidence of her making derogatory comments in public to the neighbour. She stated that she was going to contact the press about the issue and felt that the landlord had failed in its ‘duty of care’ to them.
23. In its final complaint decision, of 26 March 2019, the landlord referred to a conversation with the resident on 13 March 2019 in which she had stated that her neighbours had to move as they were not appropriate for the area. It stated that she had been offered monitoring equipment and declined this on the basis that the neighbour had been given prior notification of the previous installation and there had, therefore, been no noise detected. The landlord stated this outcome was the reason for the installation.
24. As the resident had reported that she felt the neighbour’s partner was often drunk and being abused by the neighbour, the landlord had notified the Police about her concerns. It however, also cautioned her about several derogatory terms which she had used in describing the partner in her correspondence with it and stated that it was unacceptable. The landlord advised her to send the statements which she had stated she was collating from other neighbours. It also stated that there was no evidence that the residents at the neighbours’ previous address had signed a petition for their removal from the area.
25. The landlord requested that the resident inform it about any way in which it could assist her. However, it maintained that there was no evidence of sustained unreasonable behaviour by her neighbour. It clarified that it was unable to relocate the neighbours unless they chose to move and requested that she reconsider mediation previously offered. It advised that the resident could escalate the matter externally.

Assessment and findings

26. The landlord should have written to the resident following the receipt of her initial report regarding the bins to ensure that she was aware of the actions it was taking, as it is not always certain that voice messages will be listened to. It is noted however that it was timely in dealing with the issue she raised as a bin was provided shortly after. This Service therefore concludes that the issue of the bins was appropriately dealt with by the landlord.
27. It is common practise for landlords to attempt to resolve reports of noise by contacting the alleged perpetrator to ensure that they are aware of the possibility that they are inconveniencing their neighbours. Thus, it was proportionate action in the circumstances that the landlord contacted the neighbour when it received the initial report.
28. Although for data protection purposes, the landlord is not required to provide details of its conversation with the neighbour, it should have informed the resident of its intended action in response to her email. In its complaint decision, the landlord acknowledged this shortcoming and apologised for failing to contact the resident to ensure that she was aware it had received her email of December 2018 and would be investigating her reports of noise by the neighbour.
29. The landlord installed noise monitoring equipment in the property on 1 March 2019 and removed it a week later. It assessed the recordings and found no evidence of significant noise by the neighbour. This Service notes that the resident declined the further installation of the noise monitoring equipment because the landlord had given the neighbour prior notice when this was done previously.
30. Landlords often decide to inform parties who are being investigated for noise nuisance that they will be installing recording equipment. This is often because any recordings made without prior information to the alleged perpetrator cannot be used in legal process. It would have been helpful for the landlord to advise the resident about its reasons for providing prior information to the neighbours. The parties could have subsequently agreed that the noise equipment could be left in the property for longer to ensure a more accurate assessment of the situation.
31. It is common practice for landlords to encourage residents reporting ASB to attempt to resolve the issue directly with the neighbour by contacting them and discussing their concerns. Where this fails, landlords would often advise the neighbours to consider mediation. Thus, it was appropriate in the circumstances of the case that the landlord advised the resident about engaging in mediation with the neighbours. The resident states that the neighbours had threatened her life on more than one occasion, but the landlord had not witnessed this. Furthermore, it offered mediation as a suggestion and it was for the resident to accept or decline; this was not mandatory.
32. The landlord’s internal notes indicate that it called the resident on 19 February 2019, with respect to the stage one investigation. It requested a home visit to discuss the issues, but she declined and stated that she did not wish to have a conversation with it. According to its notes, it also contacted her on 14 March 2019 and she again declined a home visit.
33. It is acknowledged that the landlord had failed to communicate with the resident following her earlier emails of December 2018 and January 2019 and it is understandable that she was unhappy about its actions. However, it is expected that landlords would meet with parties reporting ASB in order to gain a thorough understanding of the situation and proffer suggestions for investigating and dealing with the issue. It was, therefore, reasonable that the landlord offered to meet with the resident to discuss the issues. The previous failure to contact her could not be reversed but the landlord’s later efforts to meet with her were appropriate and required.
34. The landlord encouraged the resident to contact the Police if she felt threatened by the neighbour’s actions. This is appropriate advice as it is the role of the Police to protect lives and deal with criminal behaviour. There is no evidence that the landlord tried to prevent the resident from reporting matters to the Police where criminality or a threat to life had occurred. It was also appropriate that the landlord advised her about reporting ASB incidents by the neighbour to its officer as it is its duty to deal with ASB where the alleged victims and perpetrators are its residents.
35. Landlords are unable to take extensive action in response to reports of ASB by residents without sufficient evidence of the issues reported. Any actions taken must be proportionate to their findings on investigating the issues reported. The landlord has maintained that it found no evidence of events occurring at the magnitude reported by the resident. It encouraged her to provide it with the evidence which she states she had with respect to a petition against her neighbours, as well as statements by other neighbours. Thus, it has demonstrated its willingness to fully consider the issue. In the absence of independent corroborated evidence of the issues reported, this Service is unable to conclude that the landlord has not acted appropriately in this case.
36. It must be noted that evidence of ASB by the neighbour at their previous address would not necessarily create an obligation on the landlord to accept that the incidents reported by the resident where occurring at the level narrated. The landlord would still be required to conduct a thorough investigation and assessment of the situation and take proportionate action in accordance with its findings.
37. As stated by the landlord, the resident consistently employed derogatory language in describing the neighbour, and not merely their actions, but also in correspondence to the landlord on the issues. While no independent evidence has been provided to show that the resident verbally abused the neighbour in public, it was reasonable that the landlord advised her to use more respectful words in referring to her neighbour.
38. Overall, this Service finds that there were delays to the landlord contacting the resident to ensure that she was aware of the actions it was taking in response to her reports of ASB by her neighbour. However, it apologised for this and explained how it began to deal with the matter. Prior to the stage one decision the landlord had made efforts to discuss the situation with the resident and to inform her about the measures that could be undertaken in the circumstances.
39. The landlord’s records indicate that it retrospectively permitted the resident to install CCTV in the property. It also advised her in its stage one decision to keep a diary log of any incidents of noise, nuisance or disturbances from her neighbours. The resident has not provided any CCTV footage or diary logs to assist the landlord’s investigation of her reports.
40. No evidence has been provided to show that the Police, which had been contacted by the resident as well as the landlord, made any significant finding to support the landlord taking more extensive action at the time the reports were made. This Service has been informed that the neighbour’s partner has relocated, thus the resident can advise the landlord if she is continuing to experience ASB in the area despite the changed situation.
41. In light of the foregoing, this Service concludes that the landlord’s actions in this case were proportionate and appropriate to its findings. It apologised for its failure to communicate with the resident and ensured that she was aware that it was acting on her reports. It also provided reasonable advice and suggestions to the resident with the aim of conducting a thorough investigation as is required in ASB cases.

Determination (decision)

42. In accordance with paragraph 54 of the Scheme there was no maladministration by the landlord in respect of the complaint.

Reasons

43. The landlord apologised for its initial shortcomings in responding to the resident. It subsequently provided adequate advice on the measures to be undertaken to assess the situation and no evidence was provided to indicate that further action was required.