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Optivo (202003490)

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REPORT

COMPLAINT 202003490

Optivo

4 June 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 way the landlord has handled the resident’s reports of antisocial behaviour (ASB).

Background and summary of events

Background

  1. The resident moved into his property on 5 November 2012 on a non-shorthold tenancy basis. The property is on the top floor of a three storey building, with two flats below.

Policies and procedures

  1. The landlord’s ASB policy sets out its approach to dealing with ASB. It explains the procedure that will be followed upon a tenant making a report of ASB, such as being informed of who will handle the case and that it will contact tenants prior to closing a case to give the reasons for this.
  2. The ASB policy also explains that the landlord will not take action where there is insufficient evidence.

Summary of events

  1. On 2 April 2019 the landlord logged an ASB case after the resident reported that his downstairs neighbour was deliberately making strange noises at various times of the day and night. The landlord wrote to the resident, giving him the name of his case worker and gave him some diary sheets to complete.
  2. The landlord received some diary sheets back on 25 April 2019 and then spoke to the resident on 10 May 2019. The resident was then spoken to again on 3 June 2019 when he explained that the neighbour was accusing him of making noise and that various family members of the neighbour were intimidating him. The resident also provided crime report numbers relating to two incidents when he had called the police. Additional contact was made with the resident on 13 June 2019 when the resident said that the neighbour’s partner and sons were often threatening him and he felt unsafe.
  3. On 14 June 2019 the landlord spoke to the police who said that they were not persuaded that any offence had been committed.
  4. On 3 July 2019 the neighbour was written to, inviting her to attend an appointment to discuss the allegations of ASB. The neighbour was unable to make the first proposed date due to work commitments and the meeting eventually took place on 9 August 2019. At this meeting the neighbour denied the allegations and made counter allegations against the resident. The neighbour said that she had been spending most of her time at her parents’ house since October 2018 as she was fearful of the resident.
  5. Also on 9 August 2019 the landlord held a case review with the ASB team. It was advised that there was no evidence to support the resident’s allegations.
  6. On 9 October 2019 the resident agreed to mediation. The neighbour, whilst agreeing in principle, did not want to attend a face to face meeting with the resident.
  7. On 23 October 2019 the landlord contacted the ground floor tenant who said that she had not been impacted by any noise from the neighbour and that the neighbour did not spend much time at the property.
  8. On 31 October 2019 the landlord held a case review and agreed to refer the case to mediation and then to close it.
  9. On 5 November 2019 the resident attended the landlord’s offices to discuss the case. He said that the neighbour was not living at the property but mentioned being threatened by her son. The resident was assisted to download the noise app on his phone.
  10. On 6 December 2019 the landlord had contact with the resident’s support worker to provide an update on the situation. Then on 9 December 2019 the police rang the landlord to say that they had referred the resident for a mental health assessment. The police also informed the landlord of an incident in which the resident was alleged to have been abusive to the neighbour’s son.
  11. On 20 January 2020 the landlord spoke to the resident’s Community Psychiatric Nurse (CPN) who said that he was going to be referring the resident to a scheme called Your Way for them to assist the resident to complete an application form for a move. On the same day the police contacted the landlord to say that they were closing their case as they had referred the resident to mental health services and had not had any contact with him in the last few weeks.
  12. The landlord has a file note dated 27 January 2020 that the resident rang to report an incident which began with the neighbour playing a loud prank sound app at unsocial times. The resident admitted to shouting and kicking the inside of his own door as he was frustrated. He said that the neighbour’s son then came out and kicked his door, shouting that he would kill the resident.
  13. On 30 January 2020 there was a call between the landlord and the police. The police were concerned that the resident’s reports may not be genuine. The landlord said that it was going to invite the resident in for a meeting and the police asked if they could also attend. Two meeting dates were booked in but the resident did not attend. A file note from 28 February 2020 recorded that the resident was not happy to attend without a CPN and that he was going to try and get someone to come with him.
  14. On 3 April 2020 the landlord sent the resident a letter explaining that the ASB case had been closed due to insufficient evidence.
  15. On 6 April 2020 the neighbour made a new report relating to an incident that had taken place on 26 January 2020 in which she said that the resident had threatened her son with a hammer. Therefore, a new ASB case was set up.
  16. On 13 May 2020 the landlord spoke to the resident about the allegations. He denied ever threatening the neighbour or her son and said it was the son that was trying to intimidate him. He said that the incident with the hammer never happened and that he had no idea why the neighbour would be afraid of him. The resident also said that he did not know why the ground floor tenant had not experienced any noise nuisance from the neighbour. In response to the landlord saying that the police had visited many times but found no evidence to support the resident’s claims, he said that the police did not always come at the right time when they were called.
  17. On 9 June 2020 the landlord spoke to the police who confirmed that they had responded to all of the resident’s calls but that there was never any evidence of wrongdoing by the neighbour. They said that the last time they called, there was no one in the neighbour’s property and so they suspected the veracity of the resident’s reporting of an incident.
  18. On 29 June 2020 the landlord spoke to the resident about noise recordings that he had provided. The landlord said that it could not be identified where the noise was coming from. The landlord had checked with the neighbour who had said that she was not at her property at the time and so the noise could not be coming from her flat. A friend of the resident later sent a letter to the landlord saying that he had witnessed a low frequency buzzing noise whilst at the resident’s flat and that the resident had told him that he believed that the noises were transmitted using a Bluetooth or wifi app and an amplifier.
  19. On 14 July 2020 the landlord spoke to the resident’s support organisation who were looking at support packages for the resident.
  20. On 3 August 2020 the landlord had a discussion with a social worker from the Council’s community mental health team regarding an assessment undertaken by the resident the previous day. It was agreed that the landlord would contact the resident’s support worker about trying to get the resident to engage with it.
  21. On 17 August 2020 the landlord sent the resident’s support worker and the police a letter about getting the resident to sign an Acceptable Behaviour Agreement (ABA). The document was sent to both services in the hope that the resident would agree to sign it. The ABA contained a number of conditions that the resident would have to adhere to. Essentially, by signing it, the resident would be agreeing not to behave in a way that would cause harassment, alarm or distress to his neighbours. Ultimately the resident refused to sign the ABA.
  22. On 11 September 2020 the landlord received a formal complaint from the resident (although the resident’s letter was dated 30 July 2020). The resident said he had reported the possible subletting of the downstairs flat and of two flats in the next door building but that nothing had been done about it. He said that from the moment of moving in he had faced intimidation from the neighbour’s boyfriend and son. The resident said that the landlord had refused to keep him informed of any action it intended to take and that he had about 18 sound recordings of prank sounds from directly under his bed at night which he thought must be coming from a hand held or ladder top amplifier placed against the ceiling of the flat below. He also said that he had two recordings of infrasound that had been witnessed by one friend and three recordings of infrasound bursts witnessed by another friend. The resident said he was wondering what he had to do to get the landlord to take action against the neighbour’s menacing extended family.
  23. After letting the resident know that it would need until 7 October 2020 to respond, the landlord sent its stage 1 response to the resident on 6 October 2020. The landlord said that it had investigated the suspected subletting issues but was unable to share its findings with the resident for data protection reasons. In relation to ASB, the landlord said that it had looked at its records and spoken to staff and was satisfied that it did investigate the resident’s ASB reports about his neighbour. However, the result was that there was insufficient evidence for any action to be taken. Furthermore, the noise recordings were listened to, but again there was insufficient evidence for action to be taken as it was unclear where the noise was coming from. Having reviewed the ASB case from April 2019, the landlord accepted that it had not regularly updated the resident, for which it apologised. The landlord said that it wanted to learn from the experience and had taken a number of steps to ensure that staff kept in more regular contact with tenants during ASB cases.
  24. On 3 November 2020 the landlord received a request from the resident (dated 27 October 2020) for his complaint to be reviewed. He said that he wanted his neighbour to face the threat of eviction if the noise and harassment did not cease. By this time the neighbour had informed the landlord that she was living full time at her parents’ house whilst awaiting to hear if she would be rehoused.
  25. On 6 November 2020 the resident wrote to the landlord to say that his phone cable had been cut and that he suspected that it had been done by the neighbour. He again said that he was currently being harassed by members of the neighbour’s family and that he believed it was the son that was responsible for operating the amplifier that was linked to a sound effects app.
  26. It was also on 6 November 2020 that the landlord held a review case conference to discuss the complaint and the resident’s request for it to be escalated. The outcome was there would be no benefit in progressing the case to review at that time. However, before responding, it was agreed that a second review meeting would be held after a multi-agency meeting that was being arranged by the ASB team to discuss support for the resident. The landlord told the resident that it hoped to be able to respond by 23 December 2020.
  27. On 3 December 2020 the landlord sent a warning letter to the resident. The letter reminded the resident that the landlord had previously notified him that the neighbour had filed a complaint about the resident allegedly making threats with a hammer. The landlord also said that the resident had made numerous complaints to it and to the police about noise nuisance from the neighbour but neither organisation had been able to find any evidence to support those allegations. It said that this behaviour had caused the neighbour nuisance, annoyance and distress. The landlord said that one of the reasons for reaching its conclusions was that, on many occasions when reports had been made, the neighbour was not in her property and therefore could not be the responsible party. Therefore, it believed that the reports by the resident could be treated as being either false or malicious. The landlord said that it had asked him to sign an ABA in which he would undertake to stop making unwarranted complaints about the neighbour, however he had steadfastly refused to sign it. Therefore, the terms of the ABA were being incorporated into the warning letter.
  28. Following a meeting on 16 December 2020, the landlord sent the resident its final complaint response on 23 December 2020. The landlord said that it had talked through the resident’s reasons for wanting a review but had decided not to escalate his complaint. This was because it had not received any evidence of ASB that would support further action against the neighbour. However, the landlord said that it would like to see what else could be done to help. Therefore, a multi-agency meeting had been arranged for January 2021 for that purpose. It said that the resident’s support worker would feed back to him after the meeting.
  29. The result of the multi-agency meeting was that the landlord, together with the Council and the police, were supporting a request for the resident to be rehoused to sheltered accommodation. On 15 February 2021 the landlord contacted the resident’s support agency, saying that it believed the request for rehousing was urgent due to the resident expressing that he was becoming increasing stressed by his situation and that he wanted to move as soon as possible.
  30. On 16 February 2021 the landlord responded to an enquiry from the resident’s MP. It said that the resident had complex needs and that it was concerned about his current mental health. It told the MP that it had contacted Adult Social Services to inform them of the resident’s ongoing mental health issues and that it wanted to work with his CPN to try and resolve the issues. It asked the MP if, when responding to the resident, he could be encouraged to contact the landlord directly to work with him and to see how he could be better supported.
  31. The resident, being unhappy with the response from the landlord, contacted this Service. He said that the outstanding issues were that the ASB by the neighbour was still continuing and that the landlord had not taken the issue seriously or dealt with it. He explained that he wanted the infrasound noises to be investigated and for the landlord to move the neighbour to a different property.

Assessment and findings

  1. Following a detailed review of the evidence submitted by both parties, the Ombudsman’s investigation considers the action taken by the landlord in response to the resident’s reporting of ASB from his neighbour and whether it followed its own policies and procedures, kept to the law and acted reasonably and proportionately in the circumstances.
  2. When the resident first reported ASB from his neighbour in April 2019, the landlord set up the case and allocated a case worker to investigate. This demonstrates that the landlord took the resident’s reports seriously from the beginning.
  3. The landlord has an obligation to enforce the terms of its tenants’ occupancy agreements and to ensure that ASB is not perpetrated in its properties. As a result, it was necessary for the landlord to investigate the resident’s reports of ASB and take appropriate steps to resolve any issues it identified. In doing so, the landlord contacted the neighbour to alert her to the resident’s reports, spoke to the other tenant in the building, liaised with relevant third-party agencies (such as the police), requested that the resident complete diary sheets, and offered the use of a phone noise recording app. These steps demonstrate that the landlord was mindful of its obligations to enforce the terms of its ASB policy.
  4. The Ombudsman acknowledges the resident’s frustration that he has provided diary sheets and regularly reported incidents and not seen any action taken as a result. It is clear that he is distressed by his living situation. However, both the landlord and the Ombudsman can only rely on the presenting evidence to reach sound conclusions which are fair to both parties involved.
  5. In this case there is no independent evidence to support the resident’s reports of noise nuisance or wider ASB by the neighbour or her extended family. This is in spite of consulting other possible witnesses who might have been able to corroborate the resident’s version of events, such as the ground floor tenant and the police. Therefore, in the absence of any evidence, it would not have been appropriate for the landlord to take any action against the neighbour.
  6. Although the lack of evidence meant that the landlord was unable to take any formal action, it did then suggest mediation as a possible way of resolving matters. Unfortunately, the neighbour declined to attend a face to face meeting.
  7. Once the landlord closed the resident’s ASB case due to lack of evidence, it still continued to seek solutions to the resident’s situation by engaging in a multi-agency approach to try and find a way forward, such as supporting a move to sheltered housing.
  8. The landlord has apologised for not keeping the resident regularly informed of the progress of the ASB case. The landlord says it has taken a number of steps to ensure that staff keep in more regular contact with tenants during ASB cases in future. This Service considers that this approach, in response to the complaint, is reasonable and reflects the Ombudsman’s own Dispute Resolution Principles of ‘learning from outcomes’.
  9. Overall, the Ombudsman considers that the landlord dealt with the resident’s reports of ASB in a reasonable and proportionate way that was in accordance with its obligations under its ASB policy.

Determination (decision)

  1. In accordance with paragraph 55(b) of the Scheme, there was no maladministration by the landlord in respect of its handling of the resident’s reports of ASB.

Reasons

  1. The landlord took the resident’s concerns seriously and took steps to investigate them. In the absence of independent evidence, it sought other ways to reach a solution, such as mediation. After the closure of the ASB case the landlord continued to try and alleviate the resident’s issues by supporting his wish to be re-housed and by liaising with other agencies to try and support his ongoing mental health issues.