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Optivo (now Southern Housing) (201810151)

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REPORT

COMPLAINT 201810151

Optivo

28 March 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

  1. The resident’s complaint is about the landlord’s handling of her reports of Anti Social Behaviour (“ASB”) by a neighbour.

Background and summary of events

  1. The property is a two bedroom flat. The resident lived in the property with two young children. She entered into an Assured Tenancy with the landlord on 4 November 2013.
  2. The resident and her neighbour have made a series of complaints of ASB against each other since May 2015. The resident’s complaint included that a leak was deliberately caused by the neighbour.
  3. The landlord wrote to the resident on 17 June 2017 following a meeting on 23 May 2017 to discuss her concerns regarding her neighbour. It noted that it had discussed the possibility of dividing up the garden and that both parties had agreed to mediation.
  4. On 14 June 2018 the landlord wrote to the resident advising that, following a conversation with the resident, its agreed actions were to contact the police, interview the alleged perpetrator and contact the resident in a fortnight.
  5. The landlord sent a letter to the resident on 28 August 2018, stating that the landlord had been unable to substantiate allegations against the neighbour.
  6. The resident made a formal complaint to the landlord about ASB by her neighbour on 4 November 2018. This was followed up on 16 November 2018 by a report from the resident of an assault by the neighbour.
  7. The landlord provided a formal response to the resident to her complaint on 28 November 2018. The response related to repairs and the resident’s reports of ASB. Regarding the reports of ASB, the landlord noted that a Housing Officer had spoken to her about her reports on 26 November and had arranged to meet with her personally on 6 December to discuss the issues and review the evidence which she had provided. It concluded that it was “glad we’ve been able to resolve this” and provided contact details if the resident wished to discuss it further.
  8. On 30 November 2018 the resident requested the landlord’s support with a move. Following a meeting on 6 December 2018 the landlord agreed to assist with a move.
  9. On 28 December 2018 the landlord opened an ASB case following a complaint from the resident about banging by a neighbour. The resident complained again on 31 December 2018 about banging. The landlord attempted to contact the resident by phone but was unable to.
  10. The landlord sent the resident a reminder letter that it could not get in contact with her. The resident contacted the landlord on 2 January 2019, however the landlord did not progress the case and it was closed on 9 January 2019 due to no contact.
  11. The resident contacted the landlord about the NoiseApp in January and March 2019. She also reported on several occasions concerns about the neighbour’s use of CCTV.
  12. On 13 March 2019 the landlord advised the resident that it had requested records from the police. It noted that its policy on transfers in the circumstances meant that it required information from the police and a formal statement from the police that they considered the resident to be at risk. It advised that a panel of managers would decide if priority should be granted to the resident for a move. This was a different panel to the complaint review panel.
  13. The resident complained to a local councillor on 24 April 2019, which was forwarded to the landlord. The resident set out that she had experiencing ongoing issues with the neighbour since moving in to the property in October 2013 and it was having a significant impact on her and her family. The landlord responded noting that there was a considerable history of allegations and counter allegations between the parties which it had investigated. To date it had considered that there was not sufficient evidence to support tenancy enforcement action against either party.
  14. The landlord sent the resident a letter about an allegation of ASB against her by the neighbour on 24 April 2019.
  15. The landlord met with the police on 3 May 2019. The police told the landlord that they were not currently taking action against either party.
  16. The landlord received a report on 16 May 2019 that the neighbour had attacked the resident. The Neighbourhood Management Team arranged for the resident and her children to be placed in temporary accommodation on 17 May 2019.
  17.  On 20 May 2019, the landlord visited the resident, which it has acknowledged was outside its response target to respond to such a report. It sent the resident a letter on 21 May 2019 setting out that it had agreed with her that she was to report any personal threats/injuries to the police, ensure that if she had to return to the property she was with another adult and the landlord would visit the other party and update the resident subsequently. It drafted a witness statement for the resident on 24 May 2019.
  18. The police communicated to the landlord on 21 May 2019 that it had not been able to pursue the ASB reported by the resident.
  19. An Emergency Housing Panel Request form was submitted to the Council’s Emergency Housing Panel on 24 May 2019.  It was agreed that the resident be accepted for management transfer.
  20. On 6 June 2019 the landlord liaised again with the police to get an update on their investigation into the resident’s complaint the neighbour had assaulted her. The police advised that the investigation was ongoing.
  21. On 9 July 2019 the landlord advised the resident that the complaint review hearing that she had requested was deferred in light of recent events so that further information could be obtained.
  22. On 12 July 2019 the landlord discussed the situation with the resident and sent her a follow up email. The landlord advised that a new case officer had been allocated and confirmed that the hotel booking for the resident would be cancelled and the last night in the hotel would be 14 July 2022. It advised that if the resident still felt at risk she should present to the local authority homeless unit and provide it with the case officer’s details – the case officer would then provide the local authority with the relevant paperwork. It noted that it had received an allegation from her neighbour that they had been assaulted by the resident’s partner and it was investigating both allegations simultaneously. It confirmed that it had sent a report to the local authority’s panel, although it had experienced challenges obtaining the resident’s signature for the witness statement. It set out that moving forward it would be liaising with the police regarding the allegations of ASB by both parties. It stated that if the local authority did not accept the resident for a move, she was on the landlord’s priority moves list and may be offered suitable accommodation away from the immediate risk area. It explained that if she refused the offer, she would be removed from the priority housing list. It advised that it would ask the police to do regular welfare visits to the resident.
  23. The landlord confirmed to the resident on 21 August 2019 that her account was active with the council and that it was important that she actively bid for properties. It advised her that if the council offered her housing which she rejected she would be removed from the priority list. It told the resident, who was in temporary accommodation, that she should not stay or visit at the property. If she did, the temporary accommodation may be withdrawn. If she did need to return, she should notify the landlord who would liaise with the police to manage any risk to her.
  24. The landlord received an enquiry from the mayor’s office on 30 August 2019 forwarding on a complaint from the resident. In her complaint the resident noted that she had been put in temporary accommodation for 12 weeks but the uncertainty and anticipation was continuing to cause distress.
  25. On 30 August 2019 the landlord sent the resident an urgent letter. In this letter it set out that it had CCTV evidence of an alleged assault of the neighbour by the resident’s partner. It set out that her partner was banned from the building and communal areas with immediate effect.
  26. On 6 September 2019 the landlord wrote to the resident confirming what it had done to investigate the matter – interviewing the resident and her family; seeking information from the police; and liaising with the police. It noted that it had been unable to find any independent witnesses willing to support the resident’s allegations. The landlord explained that the police had told it that they would not be taking any action against the neighbour due to lack of evidence and the landlord was taking the same position. It advised the resident that it was therefore planning to close the case and that she should log on regularly to bid for properties.
  27. On 18 November 2019 the landlord advised the resident that the Review Panel would not have an influence on moving home as a resolution to her complaint.
  28. The landlord sent a warning letter to the resident on 17 December 2019 about returning to the property. On 18 December 2019, the landlord offered to meet with the resident to discuss the matter.
  29. The resident met with representatives of the landlord on 8 January 2020 to discuss her dissatisfaction with the matter. The landlord committed to undertaking a review of its complaint response.
  30. On 16 January 2020 the landlord met with the resident to let her know its views following the meeting. The landlord confirmed that evicting the upstairs neighbour was not an option. It advised that it felt that a Review Panel Hearing was not suitable and it was formally closing the complaint.
  31. The landlord undertook a review of its response to the resident’s complaint and communicated the outcome to the resident on 29 January 2020. The landlord set out the background of the matter. It acknowledged that there had been failings by it. It said that when the resident reported an assault on 16 November 2019 it should have completed a risk assessment, agreed an action plan and opened an ASB case at that point. It acknowledged that the resident contacted it before it closed the ASB case on 9 January 2019. It acknowledged that its response to the resident’s report of being attacked on 16 May 2019 was outside its response timeframes and it should have completed a risk assessment and action plan. It noted that there was an error in its letter of 17 December 2019, when it referred to allegations being a breach of the resident’s tenancy agreement, rather than stating that they would be a breach if proven. The landlord apologised if the resident felt pressurised  into being rehoused. The landlord set out its view that it was a complicated case with allegations and counter-allegations and the lack of strong evidence made it difficult to take action. It noted that it worked closely with the police to investigate the reports and the police were also unable to take action. It stated that it would be sharing its learning internally from its failures on the case.
  32. On 23 March 2020 the resident’s tenancy terminated. The landlord noted in internal correspondence that the resident had moved into a local authority property several months ago.

Assessment and findings

  1. The Ombudsman recognises that the concerns the resident has reported have caused significant distress to her. 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.
  2. It is important to clarify from the start that in cases relating to ASB, it is not the Ombudsman’s role to determine whether ASB occurred or who is responsible particularly where there is a long-running history of allegations and counter-allegations. It is also not within the Ombudsman’s authority or expertise to decide on matters such as tenancy breach or criminal behaviour in the same way as the courts. The Ombudsman also does not 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 reports it has received in the timeframe of a complaint, and whether the landlord has followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case.
  3. The background to this complaint is one of a number of allegations of ASB by the resident and counter allegations by her neighbour. It is important for the Ombudsman to acknowledge at the outset that ASB cases involving a number of parties with allegations and counter allegations of the extent presented in this case can be amongst the most difficult and intractable for a landlord to resolve. That difficulty is not the fault of any party, but it is important that the Ombudsman’s assessment of the landlord’s actions recognises this fact. The landlord’s duty is to take reasonable steps to respond to and manage reports of ASB. In doing so, the landlord has an obligation to act reasonably and fairly towards all parties.
  4. The evidence shows that the landlord took a number of steps in response to the resident’s reports of ASB, including that it
    1. wrote to the neighbour and visited them to discuss the resident’s complaints of ASB on a number of occasions.
    2. proposed mediation between the parties and considered dividing the garden to reduce friction in the relationship.
    3. liaised with the police on several occasions.
    4. met with the resident on several occasions.
    5. liaised with the resident’s children’s schools to take into account concerns about the impact on the family’s welfare.
    6. supported the resident’s move to temporary accommodation.
    7. considered an emergency housing request and accepted the resident for a management transfer and placed her on the priority housing list.
  5. The landlord has acknowledged that there were some service failings in its handling of this case. It acknowledges that when the resident reported an assault in November 2018 it should have opened an ASB case at that stage. It also acknowledges that it incorrectly closed the ASB case in January 2019 on the grounds of no contact, when in fact the resident had contacted it. Its response to the resident’s report of an assault in May 2019 should have been provided earlier and it should have undertaken a risk assessment and developed an action plan at that time. The landlord also acknowledged that there was an error in its letter to the resident of 17 December 2019, where it did not make it clear that allegations would be a breach of the resident’s tenancy agreement if they were proven.
  6. The Ombudsman agrees that these procedural failures were service failings by the landlord and that the resident’s distress about the situation would have been exacerbated by a feeling that the landlord was not taking the matter seriously and was not taking steps to investigate the matter as she could reasonably have expected it to. The impact on the resident would also have been exacerbated by these failings occurring over an extended period of around 12 months.
  7. However, the Ombudsman does not consider that there were failings with the substantive approach the landlord took overall. The crux of the resident’s complaint is that the landlord should have taken more significant steps to evict or otherwise ensure her neighbour complied with her tenancy agreement obligations. As stated above, it is not for the landlord to determine if there has been criminal behaviour such as assault – where there are such serious allegations, it is appropriate for the landlord to liaise with the police. In this case, where the police determined that they would not pursue action against the neighbour, it would not have been reasonable for the landlord to evict or take other significant steps against the neighbour on the basis of criminal behaviour. The landlord nonetheless recognised that the situation was having a significant impact on the resident and her children and supported her in temporary accommodation and in placing her on its priority housing list for a transfer. The Ombudsman is satisfied that the landlord took reasonable steps to investigate the matter, liaise with the appropriate bodies and supported the resident in an appropriate manner given the outcome of the investigations by the police.
  8. Whilst the Ombudsman considers that the substantive and ultimate approach taken by the landlord was reasonable, the service failings identified above caused the resident distress and inconvenience which the landlord should compensate the resident for. The Ombudsman notes that the landlord has stated that it will “share its learnings internally” from its failings on the case. Whilst this is a positive step to take, this does not compensate the resident.
  9. 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, taking 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.
  10. In considering what would be a reasonable amount of compensation, the Ombudsman has referred to this service’s Remedies Guidance. This sets out that awards between £250 and £750 may be appropriate where there has been “considerable” failings by the landlord but no permanent impact on the resident. The Ombudsman recognises that the matter was having a significant impact on the resident, which should have been apparent to the landlord, and that the landlord’s failings exacerbated this. In the circumstances, the Ombudsman considers £400 to be an appropriate amount. The reflects that there were multiple failings, but that ultimately the failings did not have an impact on the reasonable position which the landlord ultimately took. The Ombudsman requires that the landlord pay the resident £400 within four weeks of the date of this determination.
  11. The landlord stated that it would “share its learnings” from its failings. However, the Ombudsman considers that this does not persuasively indicate that the landlord has taken adequate steps to acknowledge and identify the causes of the failings and put in place policies and procedures to ensure that they are not repeated. The Ombudsman recommends that the landlord undertake a specific review and develop an action plan to address the service failings identified in this case.

Determination (decision)

  1. In accordance with section 52 of the Housing Ombudsman Scheme, there has been maladministration by the landlord in its handling of the resident’s reports of Anti Social Behaviour (“ASB”) by a neighbour.

Reasons

  1. There were procedural errors in the landlord’s handling of the resident’s reports of ASB which exacerbated the resident’s distress by feeling that the landlord was not taking the matter seriously and was not taking steps to investigate the matter as she could reasonably have expected it to. However, the Ombudsman does not consider that there were failings with the substantive approach the landlord took. This is because the landlord took reasonable steps to investigate the matter, liaise with the appropriate bodies and supported the resident in an appropriate manner given the outcome of the investigations by the police.

Orders and recommendations

  1. The Ombudsman requires that the landlord pay the resident £400 compensation within four weeks of the date of this determination.
  2. The Ombudsman recommends that the landlord undertake a specific review and develop an action plan to address the service failings identified in this case.