Onward Homes Limited (202101999)

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REPORT

COMPLAINT 202101999

Onward Homes Limited

26 April 2023

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

This complaint is about the landlord’s handling of the resident’s reports about:
1. Anti-social behaviour (ASB).
2. The neighbour’s CCTV.
3. Issues with the gate.

Background and summary of events

The resident is an assured tenant of the landlord, a housing association. The tenancy commenced on 20 March 2017 and the property is a 1 bedroom bungalow.
There has been an ongoing history of reports concerning ASB made by the resident about his neighbours. There has also been counter allegations about the resident which resulted in a verbal warning during 2020.
During 2020 there were reports made by the resident about his neighbours concerning ASB. This led to the landlord arranging mediation in September 2020, however this failed. It was noted that the resident felt the neighbour, her son and the mediation service were prejudiced against him because of his background. Further reports of ASB were made in October 2020, however as the landlord found no evidence to support the resident’s claims, no further action was taken.
During early 2021, the resident made further reports of racial prejudice by his neighbour, he also made reports that the communal gate was deliberately being tampered with. Conversations took place between the alleged perpetrator, police, and landlord, however the accusations were denied. As there was no evidence to support the resident’s claims, no further action was taken.
The resident stated that, on 16 May 2021, the neighbour’s son was seen by another neighbour coming through the rear garden gate and was tinkering with the gate latch. The resident also stated that the landlord had not attended to the front gate which needed replacing. The resident complained about the neighbour’s CCTV being pointed at two neighbouring addresses which he felt was illegal and an intrusion of privacy. He also stated he felt he had been ‘let down’ by the landlord and ‘discriminated against’.
The resident raised a complaint with this service, however we forwarded it to the landlord as it had not yet gone through its internal complaints procedure. Subsequently on 18 May 2021, the landlord wrote to the resident acknowledging his complaint which it had received via our service and on 21 May the landlord explained that his complaint would be investigated by its safer neighbourhood team and it was aiming to provide a response by 28 May 2021.
On 21 May 2021, the resident wrote to the landlord explaining that he had sent it countless emails which were being ignored. He felt the landlord was taking the neighbour’s side due to her age and felt with the reported harassment the landlord should have done more to protect him. He said that the landlord was a ‘racist housing association’ and its lack of actions had left him severely stressed and suicidal. He further stated the neighbour’s son had been sabotaging the front and rear gate for over a year.
On 27 May 2021 the landlord provided the resident with a stage one complaint response. It explained that, following his complaint about his neighbour in 2020, it had opened a case and instructed an independent mediation service to help. Due to lack of evidence and the other party denying the allegations the case had been closed.
With regards to the resident’s claims about the gate being tampered with and him feeling that he was being discriminated against, it explained that at the time the resident was unable to provide evidence of this, so it was unable to take it further. However at the time he was advised to report this to the police.
The landlord explained that it had worked closely with the police due to the ongoing complaints. With regard to the neighbour’s CCTV cameras, after investigation and confirmation from the police, the landlord was satisfied these cameras were compliant with the law around surveillance.
To conclude the stage one response, the landlord explained it was unable to uphold the resident’s complaint concerning ASB. It explained ASB investigations are evidence led and, as none had been provided, it was unable to act further.
During May, June and July 2021 the resident contacted the landlord to chase repairs to the gate, and to inform it of the impact the ASB was having on him.
On 27 July 2021, the resident wrote to the landlord to explain he had been in touch with this service as it had failed to provide him with a stage two response. The landlord explained it had not received this request and asked the resident to resend this explaining why he was unhappy and what he was seeking as a resolution. Therefore on 30 July 2021 the resident wrote to the landlord stating he was unhappy with the lack of response and action, reiterated the issues which he had been experiencing with the neighbour and her son and further explained how this had impacted him.
During August 2021, the resident wrote to the landlord about the ongoing issues with the neighbour and her son. He expressed concern that he was told both gates would be installed with a spring, however this had not yet been completed. He also expressed concerns over his other neighbour stating that he had made threats and racial slurs towards him. The resident wrote to the landlord explaining that the situation with his neighbour was impacting his mental health and making his day to day living difficult. Following his report of his neighbour’s son shouting racist remarks at him, he contacted the police who attended, but he was unhappy with their response. He explained the police were unable to do anything without proof, however this was difficult to get. He further explained he wanted the ASB to be classed as a hate crime.
On 20 August 2021, the resident escalated his complaint to stage two of the landlord’s complaints procedure. Subsequently on 3 September 2021, the landlord issued its stage two response. It explained that, following a conversation with the resident on 23 August 2021, it understood the complaint to be about how it handled reports of ASB and its lack of action with the CCTV and the gate. It explained that it had asked its repairs team to look at the gate to see if it could fit a closing device which would prevent the need for residents to close it behind them. With regards to the ASB, it explained it had reviewed reports and police reports and found no evidence to take the case forward, it explained it would send letters to residents reminding them of their obligations in relation to the tenancy agreement and hate crime. In response to the CCTV, the landlord explained, the police had found no issue with the CCTV or how it was positioned. It found the CCTV footage was compliant with the law around surveillance.
On 3 September 2021, the landlord sent letters to all residents about ASB and its residents’ expected behaviour.
On 6 September 2021, the resident informed the landlord that he was unhappy with its response. He explained that the issues with the gate and putting on a closing device had not been attended to. He was also unhappy that it had not contacted his witness about the gates being sabotaged. The resident expressed concern over the landlord’s communication and stated he had to chase it and, at times, call backs were never received. He explained it was hard to get the evidence needed, and he was unhappy that the issue remained. He further explained that in order to get the evidence needed he would need cameras or video equipment but was unable to afford this.

Assessment and findings

Since this complaint was referred to this service, there have been further reports about the neighbour and resident throughout 2022. Whilst we acknowledge this, the new reports were made after this complaint exhausted the landlord’s internal complaints procedure. The scope of this investigation covers the period relevant to the resident’s complaint from 2020 until the end of the landlord’s internal complaints procedure. This is because the landlord needs to be given a fair opportunity to investigate and respond to any reported dissatisfaction with its response to events that have occurred after the original complaint exhausted the complaints procedure. Whilst we understand that in this case the newer issues are linked to the matters considered in this investigation, any concerns about the landlord’s later responses should be raised directly with it and progressed as a new formal complaint if required.

The landlord’s handling of the resident’s reports of ASB

ASB case management is a crucial aspect of a landlord’s service delivery. Effective use of an ASB procedure enables the landlord to identify appropriate steps to resolve potential areas of conflict, improve landlord/tenant relationships and improve the experience of tenants residing in their homes. ASB cases are also often the most challenging for a landlord as, in practice, options available to a landlord or chosen by a landlord to resolve a case may not include a resident’s preferred outcome, and it can become difficult to manage expectations, particularly where there is a long running history of allegations and counter-allegations.
It is not within the Ombudsman’s authority or expertise to decide on matters such as tenancy breach in the same way as the courts, nor do we decide on what correct courses of action were based on hindsight and later events. However, the Ombudsman can assess how a landlord has dealt with report
The landlord’s ASB policy sets out that it handles each ASB case depending on the specific circumstances of the complaint. It will investigate all reports of ASB and take appropriate action before this escalates. It will encourage and support residents by trying to resolve their problems through mediation.
The ASB and hate crime policy specifies that the landlord does not tolerate ASB or hate crimes directed towards its customers, their visitors or any other engaged in a lawful activity in the locality of its homes.
The landlord accepts the Macpherson report’s definition of a racist incident as ‘any incident which is perceived to be racist by the victim or any other person’. The policy states a hate crime is any crime that is targeted at a person because of hostility or prejudice towards that person’s:
1. Disability.
2. Age.
3. Gender identity.
4. Race of ethnicity.
5. Religion or belief.
6. Sexual orientation.
With regards to hate crime or threatening behaviour, the landlord’s policy suggests residents report this to the police immediately and then to it. It explains that it would then communicate with the resident and the police on the next steps.
The resident stated he had made reports of ASB to the landlord and the police, however nothing had been done. These reports were concerning ASB in communal areas and verbal racial harassment. The evidence shows that there has been an ongoing issue concerning ASB since 2019. Most recent to the complaint was during 2020, which resulted in the landlord arranging mediation in September 2020 for the resident and his neighbour. The mediation process was closed due to there being no evidence of harassment and the resident not being able to provide further evidence during the mediation process. Further reports were made to the police and the landlord in October 2020 and early 2021, however again there was no evidence to support the claims. Continuous reports have been made since from the resident, and there have also been counter-allegations about the resident’s behaviour.
We have reviewed the available evidence and can see the landlord has attempted to resolve matters by means of a mediation service, it sent letters to residents of the estate, it spoke to the parties involved, and has been in constant communication with the police regarding the reports. Arrangements had also been made for the police to patrol and observe the area.
We understand the resident’s frustration with the landlord not being able to act on his reports of racial harassment and understand how distressing this must be for him. When considering such allegations, a landlord needs to carefully consider any supporting information or evidence as well as the reports themselves, before deciding what, if any action it should take. In this case, as the landlord did not have any evidence to support the claims by the resident, it was reasonable for the landlord not to have taken action against the resident’s neighbour at the time of the reports. In the Ombudsman’s view the landlord’s actions have been proportionate and, given the lack of evidence, there were no service failings in the way that the landlord handled the matter or its decision to close the complaint.
We recognise the issues concerning the resident and his neighbours have been ongoing for some time and understand how upsetting this must be. Where there is a lack of evidence, landlords are not always able to act on the reports, however given the circumstances and as this has been ongoing for some time, the landlord should consider any other options it has available to support the resident and his neighbours.

The landlord’s handling of the resident’s reports of the neighbour’s CCTV

The resident expressed concern over the positioning of the neighbour’s CCTV camera being pointed in the direction of two neighbouring addresses. This was reported to the landlord and the police.
With regards to domestic rights, the law acknowledges that residents have a right to protect their home and that CCTV systems offer a valuable security measure. The Government also acknowledges the rights of people who live near a property or who walk past it. The Information Commissioner’s Office (ICO) is the UK’s independent body set up to uphold information rights. Its website explains that if someone sets up a CCTV system so it captures only images within the boundary of their private domestic property (including the garden), then the data protection laws would not apply. However, if the system captures images of people outside the boundary of the property, for example, a shared space, then the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 will apply. In this case the individual needs to ensure their use of CCTV complies with these laws.
With any reports concerning a breach of privacy, it is important that the landlord investigate reports made, to ensure the resident’s concerns are considered and any appropriate action taken.
This service has not seen any pictures of the positioning of the neighbour’s CCTV, and it is not within our role to make a determination on whether this is a breach of privacy as this would be a matter for the ICO. What we have considered is the landlord’s actions when the matter was reported to it.
The evidence shows that following the resident’s reports to the police and landlord, an inspection was completed and the matter was investigated. The landlord explained that it had been working closely with the police for a number of complaints and, following inspection it was satisfied there was no issues with the CCTV’s position, and that the footage was compliant with the law surrounding surveillance.
Whilst we recognise the resident disputes this, it is reasonable for the landlord to rely on the outcome of the police reports, the landlord also adequately explained its position to the resident. Nonetheless if the resident requires further advice on the positioning of his neighbours’ camera, general information on the use of CCTV can be found on the Information’s Commissioner’s Office website – Domestic CCTV systems | ICO.

The landlord’s handling of the resident’s reports of issues with the gate

There has been an ongoing issue concerning the communal gates. This led to the landlord referring both parties to a mediation service in September 2020 to resolve issues concerning the use of the communal gate, however this was unsuccessful.
The resident expressed concerns about the communal gate not being closed and later expressed concerns about it being tampered with. The resident states he had made a report to the landlord several times about his neighbour’s son ‘sabotaging’ both gates at the rear and front, which he claimed had been witnessed by another neighbour on 16 May 2021.
The evidence shows the landlord had been working closely with the police concerning the ongoing issues between neighbours. This resulted in the police doing regular visits to the area. On 4 March 2021, the police emailed the landlord stating the gate had been left open, however this was not an offence. It further asked if it would be possible for the landlord to arrange for a spring to be put on the gate, so it automatically shuts.
On 21 May 2021 the resident expressed concern that the landlord had not yet attended to the gate, he explained that the latch was hanging, and the gate needed replacing.
On 6 June 2021, he further wrote to the landlord and expressed his upset over the landlord’s investigation into the matter and stated it failed to speak with him or the witness about the issues concerning the gate and the neighbour’s son. The resident then chased again on 30 July 2021 regarding the matter and said that he felt he was being ignored by the landlord.
The Landlord and Tenant Act section 11(a) states that there is implied a covenant by the lessor to keep in repair and proper working order the structure and exterior of the dwelling-house. In this instance, as there was an issue with the gates of the property, it was the landlord’s responsibility to attend to the matter.
The landlord’s repairs policy states that for routine repairs it aims to respond within 20 working days. It is evident the landlord exceeded this timeframe, as stated in the landlord’s response dated 3 September 2021, it said it would arrange for its repairs team to attend to the gate.
In the Ombudsman’s opinion it was unreasonable for the resident to have chase this several times, which led to a complaint. Despite the resident reporting concerns with the gate in May 2021, this was not sent to the repairs team until August 2021. Given the circumstances, it is appropriate that the landlord compensate the resident, in recognition of the distress this caused and that he had to chase several times which caused a further inconvenience.
With regards to the resident’s reports about the neighbour’s son ‘sabotaging’ the gate, we understand the landlord did not take this further as it had no evidence to support the resident’s claims. The evidence shows the resident stated he had a witness which was a neighbour to support his claims however the landlord did not speak to him about this. This service has not seen any records to show if any conversations with the witness took place when looking into the resident’s concerns. The landlord’s policy states it does not accept hearsay as evidence. Whilst we recognise that in such circumstances a high level of evidence is required to take action, it is important in all cases the landlord thoroughly looks into the matter, speaking to any witnesses that were present when the incident took place. In the Ombudsman’s view, there was service failure by the landlord, as it did not act on the resident’s reports that he had a witness and missed an opportunity to investigate further or explain why it was not going to contact the witness.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s reports of anti-social behaviour.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s reports about the neighbour’s CCTV.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s reports of issues with the gate.

Reasons

Whilst we recognise the resident’s distress, the landlord made proportionate attempts to resolve the ASB. Taking into consideration the evidence available, it was reasonable for the landlord to take no further action.
The landlord investigated and worked closely with the police concerning the CCTV. Whilst we acknowledge the resident disagrees, there is no evidence to suggest the positioning of the CCTV constitutes a breach of tenancy. It was also reasonable for the landlord to rely on police advice.
We understand there was an ongoing issue concerning the gate between the resident and his neighbour. However, the resident reported a repair and had to chase this several times, which exceeded the expected timeframes. In addition, the landlord did not act on the resident’s report that there was a witness or explain its position on this.

Orders and recommendations

Order

The landlord to compensate the resident £100 compensation in recognition of the distress and inconvenience caused by its delay in repairing the gate and not addressing the resident’s reports of having a witness.

Recommendations

The landlord should consider any other options available to resolve the ongoing neighbour dispute. This should be considered within four weeks of the date of this letter and it should communicate its position with the resident.