MHS Homes Ltd (201904750)

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REPORT

COMPLAINT 201904750

MHS Homes Ltd

18 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 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 regarding the landlord’s handling of:
1. The resident’s reports of Anti-Social Behaviour and harassment from a neighbour.

Background and summary of events

Background

The resident is a tenant of the landlord and has been since at least 2004, residing with his partner. During the period covered by the complaint, the resident moved to a new property within the landlord’s stock, a one bedroom bungalow.
The landlord has an ASB (Anti-Social Behaviour), Harassment and Hate Crime policy. The landlord notes that unless otherwise stated, it will use the term ASB to incorporate harassment and hate crime. Within the policy the landlord states that it will:
1. ‘take ASB seriously and aim to balance enforcement action and intervention, with prevention’.
2. ‘adopt a supportive approach when dealing with victims, witnesses and alleged perpetrators, and will be flexible in our approach to managing incidents’. (Section 1.3)
3. ‘If necessary, we may take legal action under the terms of the lease and other relevant legislation available to us’. (Section 2.1)
Section 6 of the policy covers how the landlord responds to reports of ASB.

– ‘6.10 Our focus will be to try and work with the perpetrators and complainants to resolve the situation before resorting to legal action. However, where necessary, we will use legal action options such as: Acceptable Behaviour Agreements; Injunctions; NOSPs (Notice of Seeking Possession); Evictions; Absolute ground for possession’.

‘6.11 We will work in partnership with the Police…(and) share information’.
‘6.13 Our aim is to resolve instances of ASB rather than remove a complainant from the situation. However, if appropriate we will advise and support a complainant in finding temporary accommodation if required and will also consider rehousing if this is felt necessary using our Social Priority process’.
‘6.15 We will take action to evict a perpetrator where it is reasonable and proportionate to do so and the evidence is sufficient and robust enough for a successful possession action’.

The landlord also has a complaints policy which is effectively a two step process. The policy states that they aim to resolve all complaints within 7 working days and will, if ‘something has gone wrong, offer a meaningful apology, an explanation…(and) an idea of what we’ve learned and what we want to improve’. If a resident is unhappy with the complaint response, they can request an appeal of the complaint and ‘an independent member of staff will be allocated to conduct the appeal’. The landlord aims to resolve all appeals within 15 working days. Following the appeal, residents can then escalate their complaint to this Service.
Within his complaint, this Service notes that resident has expressed a view that the landlord’s handling of the ASB case is evidence of its homophobia and discrimination against him and his partner. As it would be more effective for such questions to be determined by the courts, this Service will not consider that aspect of the complaint.

Summary of Events

On 18 July 2018, the resident made a report to the landlord of an act of homophobic abuse by their neighbour the previous day. Landlord records indicate it contacted Police the same day to attempt to verify the circumstances and also contacted the resident.
Landlord records indicate that it spoke with the resident on 30 and 31 July 2018 and the resident asked why notice had not been served on the neighbour.
On 7 August 2018, the landlord contacted the resident to provide an update on the actions taken so far and advised that they could serve and reserve notice on the neighbour pending his plea. The landlord subsequently served the neighbour with a NOSP under Grounds 12 (Breach of Tenancy) and 14 (Nuisance, annoyance, illegal or immoral use of property).
On 14 August 2018, the neighbour pleaded guilty to a charge of a Racial/Religiously aggravated Public Order offence.
Landlord records indicate that the resident contacted it several times in August and September 2018, via email, phone and in person at its offices, requesting that the neighbour be evicted or alternatively, that the resident and his partner be moved to a like for like property. On 12 September 2018, the landlord emailed the resident to advise that it did not, at that stage, feel it was ‘proportionate’ to take further enforcement action against the neighbour and did not believe that the matter should be progressed to Court.
On 20 November 2018, landlord records indicate that it conducted an internal review of the ongoing ASB case and noted that they had not received any further ASB reports since 22 October 2018. The landlord contacted the resident via email on 30 November 2018 and by phone on 7 December 2018 to obtain updates. Records show the resident advised they were experiencing ‘constant harassment’ from the neighbour but no specific incidents were reported. On 18 January 2019, the landlord closed the ASB case.
On 29 April 2019, the Police contacted the landlord and advised that the resident had made further allegations of harassment against the neighbour. Landlord records show that they responded to this on the same day and that a meeting had already been planned with the resident on 1 May 2019 following earlier contact from the resident.
On 9 May the landlord had further correspondence with the local Police and asked whether they would support the resident being awarded a move to a new property, within the landlord’s stock, in accordance with the landlord’s Social Priority policy. The landlord followed this up with the Police on 21 May 2019.
12 June 2019 the landlord sought external legal advice on how to progress the ASB case. This Service has seen the advice the landlord sought and the solicitor’s responses but these contain third party information so we will be unable to provide further details for reasons of confidentiality.
On 14 June 2019 the resident made his initial complaint to the landlord. This was against a specific member of staff and their handling of the ASB case. The complaint particularly asked why a new NOSP had not been served on the neighbour and why the landlord had, so far, not taken any further enforcement action against the neighbour.
On 24 June 2019, the landlord offered to provide the resident temporary accommodation in a hotel, but this was declined.
On 4 July 2019, the landlord served the neighbour a new NOSP under Ground 8.
On 8 July 2019, the landlord made a further offer of temporary hotel accommodation to the resident. The resident accepted the offer.
The landlord issued their complaint response on 10 July 2019. The complaint was not upheld and although the landlord noted that they would learn from the case, further details on this were not provided.
On 12 July 2019, the resident contacted this Service to complain about the way in which the landlord had handled the ASB case although at this stage, the landlord’s complaint process had not been exhausted.
On 18 July 2019, the resident made a further complaint to the landlord, this time against the staff member who issued the Stage 1 response. The landlord carried out a review of the case under its Appeal process.
The landlord arranged a meeting with the resident and his partner on 22 July 2019, attended by the landlord and the resident’s Local Councillor. The discussion included the landlord’s ongoing management of the ASB case and potential solutions, including a move via the landlord’s Social Priority policy. The landlord confirmed that enforcement action was now being taken against the neighbour and the case was being progressed via solicitors.
The landlord issued its complaint appeal response on 29 July 2019. The complaint was not upheld but the landlord issued an apology for an aspect of how the ASB complaint had been closed and for how the Stage 1 complaint had been addressed. Specific learning from a review of the case was also identified. The resident was also advised about how to escalate their complaint to this Service.
On 5 August 2019, this Service responded to the resident’s email of 12 July 2019 and advised that they needed to continue with the complaint process, although the complaint had been escalated, and a response issued, by this time.
On 8 August 2019, the landlord offered the resident a move to a nominated property under its Social Priority policy.
A court hearing was held on 25 September 2019, at which the neighbour was given a general undertaking to:
1. Not communicate in any way with the resident or the resident’s partner.
2. Not to stop or loiter in any of the public spaces around the resident’s address.
On 5 October 2019, the resident contacted the landlord, and this Service, providing videos which they stated showed the neighbour loitering outside their property and therefore allegedly breaching the terms of the general undertaking.
On 8 October 2019, the landlord instructed its solicitors to begin proceedings against the neighbour due to alleged breaches of the general undertaking.
On 11 December 2019, the landlord offered the resident an alternative property under its Social Priority policy. The resident accepted the property, which was on an adjoining street, and moved on 16 December 2019.
On 30 December 2019, the landlord obtained an injunction at Court, which was served on the neighbour on 19 February 2020. The injunction included orders that the neighbour should not:
1. Engage in, or threaten to engage in, conduct that causes, or is likely to cause, harassment to a named member of the landlord’s staff, the resident and the resident’s partner.
2. Use, or threaten to use, violence against a named member of the landlord’s staff, the resident and the resident’s partner.
3. Use abusive, threatening or intimidatory language or behaviour, including to shout at or swear at or use abusive language or make rude or insulting gestures or derogatory or homophobic remarks towards the resident and the resident’s partner.
4. Go within 100 metres of the resident’s (new) address.
Landlord records show that, following the injunction being granted at Court, the resident contacted them to advise the neighbour was immediately in breach of the injunction, since the neighbour’s property was within 100m of the resident’s home. Although the distance of 100m had been agreed between all parties at Court, the distance between the two properties was subsequently measured as being just 84m as the crow flies. The resident requested the landlord to take enforcement action based on this alleged breach. Records show the landlord took further legal advice on this. This Service has seen the advice sought and given but will not be outlining further details due to it containing third party information. However, on 19 February 2020, the landlord confirmed with the resident that they were seeking to return to Court to vary the injunction so that the reference to ‘100m’ was removed and the neighbour was instead excluded from a specifically marked area and therefore would remain able to reside at their address without being in breach of the injunction. Regarding the injunction, it is also noted that the order obtained did not include Power of Arrest for any breach.
On 1 July 2020 landlord records show that the local Police confirmed they would not support the resident regarding a further move under Social Priority.
On 15 July 2020, the landlord confirmed with the resident that the neighbour had now moved out of the area.
The resident made a new complaint on 17 July 2020. Although new points were raised, the crux of the complaint still related to the landlord’s handling of the ASB case.
On 24 July 2020, the landlord confirmed with the resident via email that they had now cancelled the Court hearing that sought to vary the terms of the injunction, which had been listed for 29 July 2020. The landlord advised that this was because the variation on the injunction order was no longer necessary as the neighbour had moved out of the area.
The landlord issued its final response to the resident’s most recent complaint on 29 July 2020. It advised that it now considered its complaint process exhausted and advised the resident to make further contact with this Service if he was dissatisfied with the response.

Assessment and Findings

In reaching a decision we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case. This Service has a very specific role in considering whether the landlord has met its obligations to a resident and taken reasonable steps to resolve the complaint.
It is not within the Ombudsman’s authority or expertise to decide on matters such as tenancy breaches in the same way as the courts. However, the Ombudsman can assess whether the landlord has followed proper procedure, good practice, and behaved reasonably, taking account of all the circumstances of the case. The landlord is required to take appropriate action in response to any reports of alleged ASB it receives and ensure that its procedures provide a range of actions that it can take to manage ASB cases.
The Scheme sets out that the Ombudsman will not investigate complaints which concern employment or personnel issues. It is noted that, within their wider complaint, the resident complains about individual staff members. In this case, this Service has considered how the landlord responded to the resident’s complaint overall rather than investigating the conduct of any individual.
The Ombudsman is limited in the extent to which it can rely on photographic evidence as it is not possible for this Service to determine the location/circumstances of videos and audio, or the validity of the videos themselves. The video and audio evidence submitted by the resident to the landlord and this Service is therefore noted but we are unable to place significant reliance on these files when reaching our decision.

Landlord’s response to the resident’s reports of Anti-Social Behaviour and harassment from a neighbour.

Following the resident’s initial report of an incident with their neighbour on 18 July 2018, the landlord responded the same day, contacting both the resident and the Police to obtain more information. It is noted that the resident subsequently contacted the landlord on 30 and 31 July 2018 and stated that he wanted them to take enforcement action against the neighbour. The landlord advised it would wait to obtain further information from the Police before deciding what, if any, action to take. This was a reasonable position for the landlord to hold as the exact facts of the case were yet to be confirmed. The landlord also responded promptly to the resident’s follow up queries and provided an update on actions taken so far when requested. Its actions were in line with its ASB policies. Subsequently, the landlord did serve notice on the neighbour on 7 August 2018.
After the landlord served a NOSP on the neighbour, information available indicates that it had regular contact with the resident via phone and email regarding the case and also arranged a meeting with them in October 2018. Additionally, the landlord conducted an internal review of the case in November 2018 and made two attempts to contact the resident to establish if there had been any further incidents of ASB or harassment. While it is noted in the landlord’s records that the resident referred to ‘constant harassment’, no specific incidents appear to have been reported to the landlord. The landlord’s actions in responding to the resident and providing updates on the case were appropriate. It was also not unreasonable that the landlord closed the ASB case against the neighbour in January 2019 due to an apparent lack of further specific reports.
Unfortunately, after the ASB case was closed, the resident reported further alleged instances of ASB and harassment carried out by the neighbour, which we will not list individually. However, the records available indicate that the landlord acknowledged and investigated the resident’s reports within a reasonable timeframe and, on several occasions, attempted to liaise with him and the Police regarding the reports and the case overall. Action taken by the landlord included:
1. Seeking external legal advice regarding how to progress the case.
2. Offering temporary hotel accommodation to the resident on two occasions, the latter offer being accepted.
3. Serving a second NOSP on the neighbour.
4. Holding a further meeting with the resident and his local Councillor.
5. Offering the resident a move to an alternative property under its Social Priority Policy. Two properties were offered, and the resident accepted the second offer, moving to his new address on 16 December 2019.
6. Following earlier legal advice, applying for an injunction against the neighbour via the Courts, first obtaining a General Undertaking and subsequently issuing proceedings against the neighbour when this was breached.
7. Obtaining an injunction against the neighbour on 30 December 2019.
It is not disputed that, despite the actions taken by the landlord, the resident reported that he experienced continued ASB and harassment from his neighbour. The landlord’s ASB policy states that it will ‘try and work with perpetrators and complainants to resolve the situation before resorting to legal action’ but that it will use legal action such as injunctions and NOSPs where necessary. The policy also states that it will work in partnership with the Police and, if appropriate, will support complainants ‘in finding temporary accommodation’ and ‘also consider rehousing…using our Social Priority process’. While the resident expressed a clear preference for the landlord to evict his neighbour, the information available indicates that the landlord sought to make use of several appropriate actions at its disposal to try and deal with the alleged ASB and it was entitled to do so. The landlord’s decisions to offer the resident temporary accommodation and alternative housing demonstrated a commitment to finding a resolution for the resident and his partner, given the detriment they experienced. This Service also notes that the landlord does not have the power to summarily evict a tenant and must adhere to the law and follow the relevant Court processes.
Information available to this investigation also indicates that on several occasions the Police took no further action regarding the resident’s reports of ASB or harassment. The Police also did not initially provide their support for the resident’s need to be moved under the landlord’s Social Priority policy and, after the resident had moved in December 2019, they did not support a further transfer in July 2020. Actions taken by the landlord were all in line with its policy.
The landlord’s ASB policy also states that it ‘will take action to evict a perpetrator where it is reasonable, proportionate to do so and the evidence is sufficient and robust enough for a successful possession action’. Based on the information available, some of which contains third party information which precludes this Service from outlining it in detail, it was not unreasonable for the landlord to make use of actions that fell short of applying to the Court to evict the neighbour. While the number of allegations and reports made by the resident was significant, as above it is noted that following the neighbour’s initial conviction for an offence in July 2018, no further incidents appear to have resulted in any further action from the Police. It was reasonable for the landlord to consider this, along with other evidence it obtained and independent legal advice, when deciding whether possession action against the neighbour was likely to be successful at Court.
The landlord, after re-opening the ASB case in May 2019, took prompt steps to seek legal advice regarding obtaining an injunction against the neighbour. Once a General Undertaking had been obtained at Court, the landlord took further legal steps against the neighbour when these were breached and ultimately obtained the injunction in December 2019. While the resident was unhappy with some of the terms of the injunction regarding the distance the neighbour should remain away from his property, these were agreed by all parties at the time. Nevertheless, the landlord then obtained further advice and sought to return to Court to vary those terms. The landlord’s actions were proportionate, in line with its ASB policy and the information available indicates that it communicated with the resident as to why it took certain actions. The landlord’s actions demonstrate it investigated the resident’s concerns and responded reasonably, in accordance with what the Ombudsman would expect to see.
While the resident also expressed dissatisfaction at the time taken by the landlord to progress the case through its ASB procedure, this Service appreciates that in cases such as these the process does take time, especially when compiling evidence and subsequently progressing cases via the Courts. In the circumstances, while the resident’s concerns were understandable, based on the information available to this investigation, the time that elapsed during the landlord’s progression of the ASB case was reasonable.
Within the resident’s complaint about an individual member of staff, and how the ASB case by the landlord, he indicated that the ASB case had initially been closed without him being notified in January 2019. The landlord acknowledged this in its appeal response issued on 29 July 2019 and advised that it had compiled a review of how the case had been handled. The Ombudsman’s Dispute Resolution Principles are:
1. Be fair – treat people fairly and follow fair processes.
2. Put things right.
3. Learn from outcomes.

Within its review of the case, the landlord noted that ‘it would have been appropriate for the team to have notified you that they had closed the (ASB) case on 18 January (2019)’. The landlord apologized for this and advised the resident that it had taken this as a learning point. Information seen by this Service indicates that this was fed back to the team to consider in future ASB case. This is in line with the Ombudsman’s expectations of a landlord’s complaints procedure; for the landlord to identify any issues, put them right where possible and to minimise the potential for issues to re-occur. An apology for not having notified the resident that the ASB case had been closed was appropriate redress.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its handling of the resident’s reports of ASB and harassment.

Reasons

The landlord’s responses to the resident’s reports of ASB and harassment were reasonable and proportionate. It took appropriate actions to try and address and resolve the ASB in line with its policies. While the landlord did not take the action that the resident ultimately wanted – namely, eviction of the neighbour – it did consider the resident’s reports, sought external legal advice on the case, liaised with the Police on several occasions, and took legal action against the neighbour in the form of serving NOSPs, obtaining a General Undertaking and ultimately an injunction. Records indicate that the landlord consulted with the resident throughout the process and attempted to explain and justify the actions it was taking where possible. This Service acknowledges that some of the reasons for the landlord’s actions could not be shared with the resident due to third party information and data protection concerns. However, this Service has seen those reasons and is satisfied that, having considered these, the landlord’s actions were reasonable and timely. As part of its response to the resident’s initial complaint about the handling of the case, the landlord also conducted an internal review and identified some learning for the handling of future cases.