Optivo (202105121)

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REPORT

COMPLAINT 202105121

Optivo

21 February 2022


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 resident’s complaint is about the landlord’s handling of her complaint about Anti Social Behaviour (“ASB”).

Background and summary of events

  1. The resident entered into a shared ownership underlease with the landlord on 29 March 2018.
  2. On 18 May 2020 the resident complained about ASB by people using the rooftop garden of the building next to her building. On 14 June 2020 the resident submitted a complaint about a rooftop garden party with loud music. On 31 July 2020 the resident made a complaint to the landlord about loud music on the rooftop garden. On 1 September 2020 the resident made another complaint about loud parties on the rooftop and that the landlord had not taken any action. On 8 September 2020 the resident wrote to the landlord complaining about ways in which the rooftop was being used inappropriately, including barbeques, loud parties, loud music, rubbish being dumped and ball games being played. There is also a record of a telephone call between the landlord and the resident on 8 September 2020 in which the resident advised that there had been parties since April and the police had been called several times. The resident complained again on 15 September 2020 about a rooftop party with loud music. On 18 September 2020 there was a call between the parties where the landlord advised the resident that it would inform the relevant team to investigate and the resident should call the police to shut down illegal parties. On 26 February 2021 the resident lodged a formal complaint with the landlord.
  3. On 2 March 2021 the landlord held a “case conference” to consider the resident’s complaint. This included considering the resident’s preferred resolution of the landlord stopping the antisocial behaviour, explaining to the residents the rules for use of the rooftop terrace, installing CCTV and locking the rooftop between 10 pm to 8 am.
  4. The landlord sent a first stage complaint response to the resident on 12 March 2021. In this letter the landlord advised the resident that it would repair a broken lock on the door of the roof terrace, it would send a letter to all residents of the building “reminding them about their behaviour” when using the roof terrace, it would look at further action where it knew the alleged perpetrator of the ASB and has evidence. It advised the resident that it could not put a timer on or lock down the door entry to the area. It referred the resident to the council’s noise team and noted that the council has power to undertake some interventions for noise complaints. It advised the resident that it would be working with its Neighbourhoods team to manage any further complaints.
  5. On 15 March 2021 the resident complained again that a resident had installed a hot tub on the rooftop and asked the landlord if it had considered her request to install CCTV which it had not referred to in its letter of 12 March 2021. On 15 March 2021 the landlord apologised to the resident for not referring to her request to install CCTV in its letter to her of 12 March 2021. The landlord advised the resident that it would not consider installing CCTV because it would need to consult with all residents to do so, it would be costly and is cloud based so would require someone to go on site to view it every time concerns were raised, and if the landlord could not identify the residents from the footage it would not be of help in identifying them.
  6. On 19 March the resident asked the landlord for a review request form. On 22 March 2021 the resident submitted a review request to the landlord.
  7. On 23 March 2021 the landlord sent a letter to residents advising that there had been reports of the rooftop garden being misused, that the fob access to the garden would be fixed and reminding residents of the rules of using the area.
  8. On 26 March 2021 the landlord wrote a letter to all residents of the block saying that there had been reports of the roof top garden being misused and stating that this was “extremely serious”. It reiterated the residents’ Anti Social Behaviour obligations. The landlord stated that if this continued the roof terrace would be closed off. The landlord also noted that there were reports of decorative pebbles being thrown from the roof top and that this was “extremely dangerous”. The landlord stated that it would be “securing” the pebbles.
  9. On 7 April 2021 the landlord wrote to the resident declining her request for a review of her complaint. The landlord specified that it had already taken a number of steps already to address the issues raised by the resident. Specifically, the landlord had sent a letter to all the residents, secured to the door to the roof terrace and ensured fob only access and was liaising with the Neighbourhoods Team. The landlord stated that it would not send regular letters to residents as the vast majority were not responsible for the ASB, it would contact residents if there were further reports and it had decided not to install CCTV. It reiterated its advice to contact the council who have powers that the landlord does not have.
  10. On 18 August 2021 an Action Plan noted that the landlord was taking the following steps: (i) looking at options to secure the pebbles (ii) sending a newsletter to residents to say that if there was continued misuse of the terrace it would be closed off (iii) investigating whether the fob reader could confirm who was using the roof top space (iv) it had decided not to install CCTV.

Assessment and findings

  1. The crux of the resident’s complaint is that the landlord has failed to take adequate steps to address the ASB she has reported. The resident would like the landlord to take further steps, including installing CCTV and sending letters to all residents on a regular basis.
  2. The Ombudsman understands the resident’s situation and recognises that the concerns she has reported have affected and caused distress to her.
  3. The Ombudsman starts by noting that it is not for this service to establish if ASB has occurred. It is for the Ombudsman to determine whether, in response to reports of ASB, the landlord responded in accordance with its relevant policies and procedures and its actions were fair and reasonable in all the circumstances of the case. The relevant policies and procedures here are the CCTV Policy (May 2018), the Anti-Social Behaviour Procedure (undated) and the Anti-Social Behaviour Policy (25 March 2019).
  4. 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.
  5. The landlord’s Anti-Social Behaviour Policy sets out how the landlord will handle a complaint about ASB. Clause 8.2 of the policy states that the actions that the landlord take will be “proportionate to the seriousness, impact and frequency of the behaviour, the level of risk that it poses to those affected and the evidence available. [The landlord] is not responsible for the behaviour of people causing ASB”. The Ombudsman is satisfied that this is a reasonable general approach for the landlord to take and has assessed the landlord’s conduct in this particular case in the context of the landlord’s general approach to cases of this type.
  6. The Ombudsman appreciates and does not seek to diminish that the situation has caused the resident distress over a lengthy period of time. However, as a general observation, the Ombudsman starts by noting that the reported behaviour would be considered to fall on the lower end of the spectrum of seriousness of ASB. Late night noise is of course an annoyance that can have an impact on sleep and the enjoyment of a property. However, there is no indication that the resident has suffered physical or financial threat or that her access to and use of her property has been directly impeded. In coming to this view, the Ombudsman notes the landlord’s submission that it has received no reports of ASB from other residents. The Ombudsman has taken this into account in considering what would be a proportionate response by the landlord.
  7. The Ombudsman has considered two key aspects of the landlord’s approach to this case. Firstly, the Ombudsman has considered whether the way in which the landlord investigated the resident’s complaint and communicated it to her was reasonable, including the timeliness of its actions. Secondly, the Ombudsman has considered the substantive interventions that the landlord has taken or has proposed to take with respect to the ASB.

Investigation and communication

  1. The evidence indicates that the resident contacted the landlord on several occasions to complain about the noise from May 2020 onwards, before lodging a formal complaint on 26 February 2021.
  2. The Ombudsman finds that there were some service failings by the landlord regarding its investigation and communication for the following reasons.
  3. The landlord’s response to the resident after her first complaint in May 2020 is not clear. The landlord’s response to the residents 31 July 2020 complaint was quite perfunctory and simply asked the resident if she knew who was playing the music and advised her to contact the police. The landlord’s notes of a call to the resident on 18 September 2020 record that the landlord advised the resident that the Neighbourhoods team would be informed to “investigate and take appropriate action”. However, the notes from the complaint case conference held on 2 March 2021 record that there was “no evidence of an investigation by Neighbourhoods or referral to them for [the property where the alleged ASB was occurring] since 2018”. It appears that this investigation did not occur. There is also reference in the notes from the case conference that the landlord will “offer compensation as a service failure” which appears to relate to the failure to refer the matter to the Neighbourhoods team. However, there does not appear to be any reference to compensation or acknowledgement of this identified service failing in any of the subsequent communication with the resident.
  4. The Ombudsman considers that the landlord missed opportunities to engage more meaningfully with the resident’s complaint at an earlier stage. The Ombudsman considers that it is unfortunate that a fuller investigation was not undertaken until the resident raised a formal complaint in February 2021. For example, the letters to residents could have been sent out at an earlier time. The Ombudsman considers that the missed opportunities to engage properly with the complaint at an earlier stage led to unnecessary distress and inconvenience for the resident.
  5. However, once the formal complaint was raised the landlord generally acted in a prompt manner and communicated with the resident in a reasonable manner. The responses were provided in a reasonable timeframe and the landlord set out its position clearly. It is unfortunate that the landlord failed to respond specifically to the resident’s request regarding the installation of CCTV in the first stage complaint letter on 12 March 2021. However, the Ombudsman is satisfied that this was a relatively minor oversight that the landlord quickly rectified on 15 March 2021.
  6. The Ombudsman therefore finds that there were failings by the landlord with respect to its investigation and communication with respect to the matter, including the timeliness of its actions.

Substantive interventions

  1. The Ombudsman has also considered whether the substantive interventions that the landlord has taken, or has proposed to take, are reasonable. The Ombudsman is satisfied that they are for the following reasons.
  2. The landlord has taken the position that installing CCTV is not “value for money” in this situation. The landlord submits that it would have to consult with all the residents, it is costly and there would need to be someone on site to view it, it would raise GDPR issues, and if the landlord was not able to identify the people using the rooftop it would be of no help. The landlord’s CCTV policy supports this position that there are a number of requirements to install and monitor such a system, which would incur costs and raise other considerations. The Ombudsman is satisfied that the landlord took reasonable steps to consider whether this was proportionate in the circumstances and it was reasonable to determine that it was not. A CCTV system would require a not insubstantial resource allocation, and there is no certainty that it would resolve the situation.
  3. The Ombudsman is also satisfied that the landlord has taken reasonable and proportionate steps to write to residents to remind them of their obligations. The residents’ obligations regarding ASB and the use of the rooftop are not complex and it is reasonable to consider that the residents, if not aware already, would not require regular reminders to be aware of them.
  4. The landlord has taken steps to ensure the integrity of the locking system to the roof top door. It has also turned its mind to whether it could use this to identify who is using the rooftop and to regulate use of the terrace and determined that it would not do so in this circumstance. The Ombudsman is satisfied that this is a reasonable position for the landlord to take. The landlord has also indicated that it is taking steps with regard to safety concerns arising from items possibly being thrown from the roof.
  5. It is appreciated that the resident is frustrated that the landlord has referred her to contacting the council and the police. However, there are limits to the power that the landlord has over the conduct of other residents and it is reasonable for the landlord to refer the resident to the council or the police.
  6. The Ombudsman therefore finds that, while it is considered that the time taken by the landlord to take steps was unreasonable, there was not a failing by the landlord with respect to the actual substantive interventions it ultimately took in the matter.

Redress  

  1. In assessing an appropriate level of compensation, the Ombudsman takes into account a range of factors including any distress and inconvenience caused by the issues, the amount of time and effort expended on pursuing the matter with the landlord, and the level of detriment caused by the landlord’s acts and/or omissions. It considers whether any redress is proportionate to the severity of the failing by the landlord and the impact on the resident. The Ombudsman also takes into account the evidence that has been provided. Ultimately the Ombudsman considers what would be fair and proportionate. The aim of compensation is not to be punitive but to provide redress for the impact of any failings by the landlord on the resident. In the case of compensation for distress and inconvenience, we are not able to quantify a definitive loss and the intention of such an award is to recognise the overall distress and inconvenience suffered by the resident.
  2. In this case, the service failings by the landlord identified above meant that the resident was required to communicate with the landlord on more occasions than she should have, before the landlord took reasonable steps to investigate the matter. As well as the effort and time required for this, it also meant that the resident was unclear about the landlord’s position for a longer period than was necessary. Further, it is possible that the interventions which the landlord ultimately took could have reduced or stopped the ASB at an earlier stage if not delayed. The landlord’s failure to acknowledge and compensate the resident for its failure to refer the matter to the Neighbourhoods team for investigation at an earlier stage also means that the resident did not have the benefit of the acknowledgement of this.
  3. In the circumstances, the Ombudsman considers it appropriate to require the landlord to pay the resident £200 compensation.

Determination (decision)

  1. In accordance with section 54 of the Housing Ombudsman Scheme there has been a service failure by the landlord in its handling of the resident’s complaint about Anti Social Behaviour.

Reasons

  1. The landlord missed opportunities to engage more meaningfully with the resident’s complaint at an earlier stage and failed to acknowledge a service failing that it had identified.

Orders

  1. The Ombudsman orders that the landlord pay the resident £200 compensation to the resident within four weeks, in recognition of the distress and inconvenience caused to her by its delays in addressing her concerns.