Optivo (now Southern Housing) (202114130)

REPORT

COMPLAINT 202114130

Optivo (now Southern Housing)

12 October 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

The complaint is about the landlord’s handling of:
1. The resident’s reports of noise transference.
2. Reports of antisocial behaviour (ASB)
3. The associated complaint.

Background

The resident is an assured tenant of the landlord and has lived in the property with her 2 children since 31 August 1992. The property is a 2 bedroom house.
The landlord is a housing association.
The landlord records do not note that the resident has any known vulnerabilities.
In December 2022, the landlord completed a merger with Southern Housing and is now known as Southern Housing Group. The landlord’s policies and procedures referred to within this report were correct during the timescales outlined within the case and all events took place prior to the landlord’s merger.

Jurisdiction

Paragraph 42(f) of the Scheme states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion concern matters where a complainant has or had the opportunity to raise the subject matter of the complaint as part of legal proceedings.
In this case the resident’s complaint regarding the landlord’s handling of noise transference has been subject to legal proceedings. For context this related to a fire that took place at the resident’s neighbour’s property in 2012 and noise transference between the properties since the fire. From the evidence provided to this Service the resident initially contacted the landlord in 2019 regarding noise transference. This matter was subject to proceedings on 16 October 2019.
This Service understands that the landlord issued possession proceedings regarding rent arrears prior to March 2021. As a consequence of this, the resident made a counter claim against the landlord for disrepair relating to noise transference. Following this, the county court set out a number of directions in a hearing on 18 February 2021 to the landlord regarding installing noise monitoring equipment, joint expert inspections and filing the reports to court. This led to the court issuing an order on 1 October 2021.
As the resident has pursued her disrepair regarding noise transference concerns under another provision, that being a counter claim of disrepair to the landlord’s claim for rent arrears, it is not within the Ombudsman’s jurisdiction to consider this matter further.

Scope of the investigation

The resident informed the Ombudsman that the landlord’s handling of her reports of antisocial behaviour (ASB) had a negative impact on her health and wellbeing. This Service is unable to look into and make a decision about the cause of, or liability for, any impact on health and wellbeing. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident.
The records provided by the landlord show that the resident reported ASB since 2019. Under the rules of the Ombudsman Scheme, this Service may not investigate matters that were not brought to the attention of the member as a formal complaint within a reasonable period, which would normally be within 6 months of the matters arising. To ensure consistency this investigation will consider resident’s reports of ASB raised from 31 January 2021 until the end of the internal complaint process being 16 May 2022.

The landlord’s obligations

The Anti-Social Behaviour, Crime and Policing Act 2014 outlines that when responding to reports of anti-social behaviour, agencies must consider the effect that such behaviour has on victims and witnesses. It also states that agencies should recognise and consider the debilitating impact on that persistent or repeated anti-social behaviour can have on victims, more so over a period of time.
The landlord’s ASB policy states that it will work in partnership with other agencies such as the police and use a range of preventative measures, early intervention and legal action to tackle ASB and that the actions taken 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 to support the case.
The landlord’s ASB policy confirms that it does not consider “noise transference due to poor sound insulation” or “everyday behaviour occurring at unusual times” to be ASB. It confirms that “playing loud music”, “verbal or physical abuse”, “arguing and slamming doors” and “offensive behaviour” to be ASB. If there is an ongoing police investigation, the policy states that it may wait to see the outcome of this before taking further action.
The ASB procedure outlines a number of actions the landlord should take after receiving a report of ASB from a resident. This includes:
1. Agree an action plan with them on what we will do to investigate the ASB.
2. Talk them through the process of an ASB case:
3. gather evidence of the allegations.
4. put the allegations to the other party (if they have agreed this)
The landlord’s ASB policy states how it deals with noise reports. This states that the landlord will:
1. Send a resident a noise pack within 3 working days.
2. Advise the resident to report noise nuisance to environmental health.
3. Complete a risk matrix with the resident. The risk matrix is used to assess the risk of harm experienced e.g., the impact on a person’s wellbeing.
4. Direct the resident to go online to complete diary sheets and register for a noise app.
5. Acknowledge the resident’s diary sheets within one working day.
6. Within 3 working days of the resident registering for the noise app it will check and review the recordings. If there is evidence of noise the landlord will contact the resident within five working days. If the evidence of noise contains threats of violence or possible domestic abuse it will be reviewed within one working day.
The landlord has a 2 stage complaints procedure which states:
1. At stage one the landlord should acknowledge the complaint within 5 working days and provide a formal response within ten working days.
2. At stage 2, the landlord should acknowledge a complaint within 5 working days and provide a full and final response within 10 days following a full investigation of the complaint.
The landlord’s compensation policy outlines that in cases where it has taken reasonable steps to resolve any failure in service, it will consider a discretionary payment. It outlines that it may offer this to recognise distress or inconvenience caused for example, it may have taken repeated attempts to resolve an issue. Discretionary payments may be cash payments, gift vouchers or items such as flowers. It further states these payments are not admissions of liability.

Summary of events

The resident reported to the landlord that on 31 January 2021 her neighbour was banging on her wall and cursing at her. As such, the resident said she had called the police.
On 5 February 2021, the landlord issued a warning letter to the resident and her neighbour regarding unacceptable behaviour. This related to both parties making a noise nuisance such as shouting and banging on the walls.
On 7 February 2021, the resident contacted the landlord regarding the warning letter. The resident said she should not have received a warning letter as she is the one who was being verbally and emotionally harassed by her neighbour. The resident also reported:
1. That her neighbour was continuing to play her music loudly and as a consequence she was having to shout in retaliation.
2. The resident said her bin had gone missing on numerous occasions.
The landlord contacted the police on 8 February 2021 to discuss the ASB matters and left a message for a call back. The following day the police contacted the landlord. The police confirmed that it had received various calls from both the resident and her neighbour. The police confirmed these included complaints about the resident and the neighbour’s bins going missing. They advised both parties to contact environmental health and confirmed that at this time no criminal offences had taken place and it was a neighbour dispute.
On 12 February 2021, the landlord referred the resident and her neighbour for mediation regarding ASB.
On 16 February 2021, the resident reported to the landlord that her neighbour had been banging on her wall.
The police contacted the landlord on 17 February 2021 to confirm it had attended both the resident and her neighbour’s properties. The police confirmed it had given both parties a verbal warning and that if things continued it would take formal action.
The resident contacted the landlord on 3 March 2021 and reported the following issues:
1. On 1 February 2021, her neighbour had been cursing at her and calling her names through the wall.
2. On 29 January 2021, she brought in the wrong bin and when she realised, she moved it back to the roadside. The resident said in this time her neighbour had taken her bin and put in a dirty sanitary product which she subsequently emptied onto her neighbour’s garden.
3. Her neighbours partner came out and verbally attacked her and threw the rubbish into her garden. The resident said she kicked the rubbish back into her neighbour’s garden which the neighbour recorded.
4. The neighbours noise app recordings were false as they were banging on the wall saying it was her.
On 10 March 2021, the mediation service contacted the landlord to confirm it had spoken with the resident regarding mediation. They confirmed that the resident was considering whether to attend and would advise.
On 31 March 2021, the landlord contacted the police regarding the ASB between the resident and her neighbour. The landlord confirmed it had received reports from both sides regarding balls being in the resident’s garden. The landlord asked the police to consider taking formal action due to wasting police time or issuing a community protection notice (CPN). The landlord said previously when the resident and her neighbour had been given a verbal warning the ASB reduced.
On the same day the landlord contacted the resident to confirm it was not taking action against her neighbour, regarding the neighbour knocking at her door to ask for her ball back. The landlord asked the resident in future to pass the ball back.
On 11 April 2021, the resident contacted the landlord to request that it contact her neighbour regarding balls being thrown into her garden and then accessing the garden without consent. The resident said she was fed up with being disturbed about the balls.
On 12 April 2021, the landlord contacted the resident to confirm it was not taking action against the neighbour regarding her children playing.
The police contacted the landlord on 13 April 2021 for an update. The landlord confirmed it had referred both parties for mediation.
On 28 May 2021, the landlord noted that ASB matters had gone quiet.
On 8 June 2021, the landlord closed the resident’s ASB case as the resident had not raised any further ASB matters.
On 18 November 2021, the landlord contacted the resident to acknowledge her concerns. The landlord confirmed it had received the resident’s complaint via this Service and confirmed it aimed to provide a response by 2 December 2021.
The landlord provided its stage one complaint response on 2 December 2021. The landlord said it had investigated the resident’s complaints about noise nuisance from her neighbour and the results of noise monitoring equipment. The landlord said:
1. It had previously considered 3 ASB matters from the resident. This included:
  1. On 10 December 2019, it closed the resident’s ASB complaint as it found no evidence to support that ASB had taken place. Also, the resident had refused to take part in mediation.
  2. On 24 November 2020, it closed the resident’s second ASB complaint. The landlord said it was closed due to early intervention as it had contacted their neighbour and asked them to be mindful of keeping the noise down. Also, it asked the neighbour to ask their children to not put footballs in the resident’s garden.
  3. On 8 June 2021, the landlord closed the resident’s third ASB complaint. The landlord said it issued the resident and the neighbour warning letters on 5 June 2021.
  4. The landlord confirmed that the letters asked the neighbours to not scream, shout or have loud arguments. Additionally, for either party to not play loud music, bang or create malicious noise or interfere with each other’s belongings. Also, the resident and the neighbour to not cause an obstruction, verbally abuse, swear or threaten each other or to behave in a manner which could have caused harassment, alarm or distress.
  5. The landlord said in each of the resident’s complaints it offered for the resident to take part in mediation, but she refused.
2. It had considered the resident’s complaint about footballs going into the garden, it noted this was annoying but it was not a breach of tenancy.
3. The landlord confirmed it had liaised with the police regarding reports of ASB. The landlord said the police had agreed that the resident and the neighbour were both complainants and perpetrators of ASB. Therefore, the police had closed its case.
On 6 December 2021, the landlord contacted the resident and provided a copy of its complaint response dated 2 December 2021.
The resident contacted the landlord on 31 December 2021 and advised that the neighbour had been making loud noises. The resident said her neighbour and friends had been jumping up and down, making banging noises and talking loudly. The resident said she was finding it very stressful.
The resident contacted the landlord to escalate the complaint to stage 2 on 4 January 2022. The landlord responded the same day and acknowledged the resident’s concerns regarding noise from the neighbour. The landlord agreed to contact the neighbour regarding their noise levels on new year’s eve.
On 17 February 2022, this Service contacted the landlord to request that it progresses the complaint to stage 2 of its complaints process.
On 25 February 2022, the landlord contacted the resident and apologised that she was being affected by noise from her neighbour. It confirmed its process for dealing with noise nuisance relies on resident’s gathering evidence over a period of 2 weeks. The landlord provided the resident with diary sheets to complete and return. It also said the resident could alternatively report the noise via the ‘noise app’. Once it received the information it would review it within 5 working days.
On 7 March 2022, the resident completed the landlord request for a stage 2 review form. The resident said since the landlord had rebuilt its neighbour’s property following a fire and new neighbours had moved in there was noise transference. The resident said this left her stressed and that her living conditions were depressing. The resident said she was fed up with hearing her neighbours in the bedroom, listening to loud music and normal living noises transferring.
The landlord emailed the resident on 16 March 2022 to confirm it had received her request to progress her complaint to stage 2. It offered the resident the option of a resident’s panel to consider her complaint from a resident’s perspective or a panel meeting of solely the landlord’s colleagues.
The resident emailed the landlord on 18 March 2022 with 37 recordings of noise nuisance she had encountered. The records do not state what was in the recordings. The resident said she did not think other residents on the panel would be beneficial as they would not be there for her.
On 22 March 2022, the landlord contacted the resident to confirm that a panel meeting had been arranged for 8 April 2022.
On 8 April 2022, a complaint review panel meeting took place. It found that it handled the resident’s ASB cases correctly and in line with its policy and procedure. The landlord said it had offered the resident mediation but she refused the offer. The landlord said it had insulated the neighbour’s property but the resident had refused the offer to have her property insulated.
The landlord provided its stage 2 complaint response on 16 May 2022. The landlord also said:
1. Regarding ASB, the landlord agreed to contact the next-door neighbour regarding their use of foul language and also to see if they could move their tv to help reduce noise transference.
2. It asked the neighbour to consider taking part in mediation as it is the first solution to resolve neighbour disputes.
3. It said it hoped once it had completed works in the property that the noise transference would have been reduced.

Post internal complaint process

The resident has reported to this Service that she has continued to raise ASB allegations including that she was physically assaulted by her neighbour. The resident has provided this Service with video evidence dated 24 July 2022 of her front door being kicked.
In correspondence with this Service on 7 September 2023 the landlord confirmed that the resident’s neighbour had now moved from the property.

Assessment and findings

The Ombudsman’s Dispute resolution principles are to be fair, put things right and learn from outcomes. This Service will apply these principles when considering whether any redress is appropriate and proportionate for any maladministration or service failure identified.

The landlord’s handling antisocial behaviour (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 resident’s residing in their homes. ASB cases are often the most challenging for a landlord as, in practice, options available or chosen by a landlord to resolve a case may not result in a resident’s preferred outcome, and it can become difficult to manage expectations.
In cases relating to ASB, it is not this Service’s role to determine whether ASB occurred or who is responsible. The Ombudsman can assess how a landlord has dealt with reports it has received in the timeframe of a complaint, and assess whether the landlord has followed proper procedure, good practice, and behaved reasonably, taking account of all the circumstances of the case.
In this case, the resident raised a number of reports to the landlord between January and June 2021 and that she felt that her neighbour was creating a noise nuisance. In addition, that her neighbour had thrown footballs over her fence. The resident reports that her neighbour’s children climbed over her fence without permission.
Despite its ASB policy and procedure stating that it will do so, there is no evidence of the landlord agreeing an action plan with the resident at the earliest opportunity. The evidence provided to this Service shows that the landlord did not complete an action plan with the resident in 2021. This shows poor case management practice and failure on behalf of the landlord to manage the resident’s expectations and seek any form of resolution.
This Service would also expect the landlord to complete risk assessments in reported ASB cases to assess the resident’s vulnerability and risk of harm. In this case, from the evidence provided to this Service there is no record that the landlord completed a risk assessment at commencement of the case or at any further stage during its handling of the resident’s reports.
The records show that the landlord took some positive steps throughout its investigation and was proactive in responding to the resident’s ASB complaints in 2021. The evidence provided to this Service shows that both the resident and her neighbour raised similar complaints regarding ASB at the beginning of 2021. As such, the landlord took appropriate action in issuing an unacceptable behaviour letter in February 2021 to both the resident and her neighbour. The landlord also took appropriate steps in offering the resident and her neighbour mediation at this time. Whilst the resident refused to engage in this, it was reasonable and in line with its ASB policy for the landlord to offer mediation as an early intervention and as a preventative measure.
This Service notes that the resident raised a number of concerns about footballs being kicked into her garden. The records show that the landlord acknowledged the resident’s concerns. It demonstrated that it investigated this matter and found they were from the neighbour’s children. Whilst this Service recognises it caused the resident frustration, the landlord took appropriate action in advising a local resolution. This shows that the landlord was proactive in managing the ASB case by communicating with both the resident and her neighbour. This was proportionate action for the landlord to take in response to the matter. This is due to the fact that children playing would not be considered as ASB unless they engaged in other serious nuisance such as criminal damage. As such, the landlord took reasonable steps to support the resident despite its actions being limited.
The evidence provided shows that the landlord also took appropriate action in liaising with the police in the earlier parts of 2021. It was appropriate for the landlord to discuss the ASB complaints with the police and this is in line with its ASB policy. It was also appropriate for the landlord to advise the resident to raise any criminal behaviour with the police should this happen. This demonstrated good practice showing it took a partnership approach.
The landlords ASB policy outlines that noise nuisance is a form of ASB when a neighbour creates unreasonable noise. The landlord policy goes onto state that in cases of unreasonable noise that it can seek to obtain evidence from noise monitoring equipment, diary sheets, visiting the location and gathering evidence from professional witnesses like the police.
In terms of the landlord’s response to the resident’s complaints about noise, the landlord provided diary sheets and recommended the resident download the noise app on 25 February 2022. However, this Service would have expected that the landlord to have advised the resident to complete diary sheets or download a noise app when she initially raised the ASB case in January 2021. Taking this into account, the landlord missed an opportunity to obtain evidence from the resident at its earliest opportunity. Also, the landlord failed to act in line with its own policy and failing to take into account the impact this was having on the resident.
Based on the findings above, this Service finds that the landlord’s responses to the resident’s complaints amount to service failure. This is due to the fact that whilst the landlord did not complete risk assessments or action plans, they did take appropriate and proactive steps in response to the resident’s ASB reports of ASB.

The associated complaint

The Housing Ombudsman’s Complaint Handling Code (the Code) was introduced with the aim of improving complaint handling across the housing sector. As a member of the Scheme, the landlord is obliged to establish and maintain a complaints procedure in accordance with any good practice recommended by the Ombudsman.
The resident initially complained to the landlord on 8 October 2021. The landlord acknowledged the complaint 18 November 2021 and said it would provide a response by 2 December 2021. Just under 2 months later, on 2 December 2021 the landlord provided its stage one complaint response. This Service notes that the landlord did not provide updates to the resident during this time or provide any reason for the delays. This Service’s Complaint Handling Code requires a landlord to keep its residents regularly updated about progress. The landlord failed to do so. In all the circumstances, this Service finds that the landlord’s delay to provision of its stage one response was unreasonable and contrary to its own policy and the Code.
The resident contacted the landlord on 4 January 2022 to request it provided a stage 2 response. Due to the delay in receiving the landlord’s stage 2 response the resident contacted this Service. 4 months later the landlord provided its stage 2 response on 16 May 2022. The records show that during the four months the resident contacted this Service regarding the lack of response from the landlord. As such, this Service contacted the landlord on the landlord on 17 February 2022, to request for an update on when she will receive the stage 2 complaint response. The landlord contacted the resident on 16 March 2022 to confirm it had received her request to progress the complaint to stage 2. At this time, the landlord offered the resident the option for her complaint to be considered by a review panel. As such, a review panel meeting took place on 8 April 2022.
There is a clear failure in the landlord not providing its stage one and stage 2 complaint response in a timely way. Further, the landlord did not acknowledge the resident’s request to escalate the complaint to stage one and two within five working days as per its own complaint policy. This Service has not seen any evidence that the landlord provided any mitigation for the delays.
The landlord’s delay in providing its stage one response was unreasonable. This adversely affected the resident and caused her unnecessary time and trouble requesting for a response. It was also a missed opportunity for the landlord to identify, address and learn from the failings identified above.
The landlord has also failed to identify its complaint handling failings. At both complaint stages the landlord did not acknowledge its delays nor did it apologise. Therefore, the landlord did not offer any redress for the time and trouble, or distress and inconvenience caused to the resident being left in the complaint process for an unnecessary period of time. This is not in line with this Services code that if something goes wrong, a landlord should acknowledge this and put things right by way of remedy. In addition, the Code is clear that landlords should apologise for any failings identified and provide an appropriate remedy to reflect the extent of its service failings. This includes but is not limited to providing an apology and where appropriate financial remedy.
This Service orders that the landlord pay the resident compensation to adequately reflect the avoidable inconvenience arising from its complaints handling failings and apologise to the resident for those it previously did not acknowledge.

Determination (decision)

In accordance with paragraph 42 of the Housing Ombudsman Scheme, the resident’s complaint about the landlord’s handling the resident’s reports of noise transference is considered outside of the Ombudsman’s jurisdiction.
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 antisocial behaviour (ASB).
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the associated complaint handling.

Reasons

Paragraph 42(f) of the Scheme states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion concern matters where a complainant has or had the opportunity to raise the subject matter of the complaint as part of legal proceedings. In this case the resident’s complaint regarding noise transference she has made against the landlord, which has been subject to legal proceedings.
The landlord failed to document key elements of its ASB procedures, including producing risk assessments or clear action plans. However, this Service had found that the landlord did take appropriate and proactive steps and managed the ASB as a well overall. Therefore, on balance as the detriment to the resident was limited by its failure to take some actions, the landlord did carry on to take appropriate steps. Therefore, overall, this was service failure.
There was a significant delay in the landlord issuing its stage one complaint response. There was also a delay in the landlord issuing its stage 2 response. This was not reasonable and not in line with what this Service would expect. Further it is not in line with the landlord’s own complaint policy. It offered no explanation for these delays or make any undertaking on what steps it would take to ensure the same complaint handling failure is avoided in future.

Orders and recommendations

Orders

Within four weeks of the date of the report the landlord will:
1. Apologise to the resident for the failings identified in this report.
2. Pay the resident £300 compensation comprised of:
  1. £100 which reflects distress and inconvenience caused to the resident in its handling of reports of antisocial behaviour.
  2. £200 to reflect its failings in the handling of the resident’s associated complaint.
3. Provide the Ombudsman with evidence of compliance with the above orders.

Recommendations

The Ombudsman recommends that the landlord take the following action:
1. The landlord should review and update its ASB policy, if it has not already done so, especially with regards to its case review process and procedure. The landlord should ensure that front line colleagues visit the necessity to risk assess and action plan as per its ASB policy.
2. The Ombudsman has recently made a number of orders and recommendations in other investigations to this landlord about reviewing its complaint handling approach. The Ombudsman has therefore not made further recommendations around these aspects of service in this report but expects the landlord to take all relevant learning points from this case into account in its overall reviews of complaint handling.