Optivo (now Southern Housing) (202214149)

REPORT

COMPLAINT 202214149

Optivo (now Southern Housing)

22 September 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 the resident’s reports of antisocial behaviour (ASB) from her upstairs neighbour.

Background

The resident is a tenant of the landlord of a ground-floor flat. The landlord’s records state that she is elderly and has terminal cancer.
On 9 March 2022, following historic reports of ASB from the resident and her other neighbours about her upstairs neighbour from at least 2016 to January 2022, the landlord served a Notice of Seeking Possession (NOSP) on her upstairs neighbour. This was after it had previously done so, liaised with the police in March 2019, taken legal action against the neighbour, and agreed an action plan with the resident in November 2021. The NOSP was served for continuous reports of the neighbour’s and their visitors’ intermittent late-night shouting, swearing, fighting, banging, crashing, and drug incidents involving the police, and after they had twice declined offers of alternative accommodation from it.
Following case reviews by the landlord with its ASB officer on 15 March and 27 April 2022, it noted that its legal department had advised it to seek a suspended possession order against the upstairs neighbour before seeking to evict them. However, its power to do so was currently very limited due to the neighbour’s mental health vulnerabilities, and it would discuss this further with the legal team on the “way forward”. The landlord subsequently noted that a lack of recent major incidents reported about the neighbour meant that it was due to contact the resident by 20 May 2022 to discuss closing her ASB case.
On 10 June 2022, the resident informed the landlord that, on 31 May 2022, visitors to her upstairs neighbour’s property had a loud argument outside of her gate. The landlord agreed to make a note of the incident and informed the resident that, as there had been no major incidents, her ASB case would be closed. On 24 June 2022, the landlord noted that it contacted the resident via telephone and closed the case.
On 8 July 2022, the resident informed the landlord of ASB throughout June 2022, including reports of shouting outside her window, banging on the door, items being thrown, and people coming and going from the upstairs neighbour’s property. The resident also mentioned that the police had attended her property. The resident reported a further incident of ASB on 9 August 2022, where she stated she heard loud bangs at her window, which made her very unwell and that she reported to the police. The landlord advised the resident that it would write to her neighbour, but she declined its offers to refer to social services and tenancy sustainment.
On 5 September 2022, the resident raised a stage 1 formal complaint with the landlord. In summary, she said she was unhappy that the landlord had not kept her updated on what was happening with her ASB case, and that nothing had progressed. She was also unhappy with the level of communication from the landlord, its ASB officer’s lack of visits, its ASB manager’s response to her concerns, and that it had not followed up on the reports that she had made about her upstairs neighbour but had instead only offered her referrals to other agencies.
On 3 October 2022, the landlord responded to the complaint at stage 1 of its complaints process. In summary, it said:
1. A letter should have been sent to confirm the resident’s ASB case had been closed in June 2022. It apologised for this and offered £15 compensation.
2. It had arranged for the case to be reviewed by a solicitor, and that it would update the resident by 14 October 2022.
3. It had arranged for a contractor to visit the resident’s address and provide proposals for CCTV, and it would update the resident on these proposals by 14 October 2022.
4. It would arrange for a dedicated housing officer to contact the resident monthly to help with any non-ASB housing issues, and this officer would contact her by 7 October 2022.
5. It acknowledged that she had been let down and offered an additional £50 goodwill payment.
6. It would remind all its teams to be attentive to residents who may need additional help.
Subsequently the resident informed the landlord on 11 and 13 October 2022 that she was unhappy with several points in its stage 1 response. In addition, she said that she had received a call from the neighbourhood manager, who had informed her that the calls from its dedicated housing officer to her would be every 2 months instead of monthly and that this was contrary to what the landlord had agreed. The landlord then exchanged internal emails with its solicitor on 13 to 14 October 2022, who explained that it would not be proportionate to issue possession proceedings against the resident’s upstairs neighbour, as their mental well-being needed to be reassessed.
On 1 November 2022, the landlord informed the resident that it would complete a review of her ASB case with its legal team by the end of the week, along with the necessary documents for the CCTV, and that it had completed a community trigger application for her to the local authority, which it had asked to call her. It apologised for the delays and stated that it would provide a further update by the end of the following week, including on the dedicated housing officer who she had not heard from yet.
On 7 December 2022, the landlord accepted a final stage 2 complaint from the resident. It noted that she complained that its stage 1 response did not reflect how poorly her ASB case had been handled, its lack of communication, her having to repeatedly chase it for updates, it not informing her what action was taken following her upstairs neighbour’s NOSP, or that her case had been closed. The resident added that she felt that the landlord was more concerned about the neighbour than her health issues, that these had occurred before, that it had delayed responding to her, that it had not contacted her about CCTV or regularly via a housing officer as it had agreed, and that it had not updated her on its legal action or community trigger referral.
On 21 December 2022, the landlord issued its final response. In summary, it said:
1. It acknowledged that it had not kept in regular contact with the resident throughout the case, or kept her updated on its actions, and apologised for this.
2. It took on board the needs of all parties involved when considering action, including the resident’s and her upstairs neighbour’s medical conditions and needs, and offered the support it had available to the resident and alternative ways to reach a solution with the neighbour.
3. It had failed to keep to the commitments it made in its stage 1 response and apologised for this and the delays in providing its stage 1 response.
4. It had approved the installation of CCTV, and it would contact the resident by the end of 13 January 2023 to arrange the installation.
5. She was informed on 11 November 2022 that its legal team had concluded it was not appropriate to take legal action against her upstairs neighbour at that stage, and that she could seek advice on taking her own legal action.
6. It apologised for not keeping in regular contact with the resident about her ASB or other housing concerns as promised, and it would make sure that a housing officer would contact her by 6 January 2023 and monthly thereafter.
7. It upheld her complaint and increased its offer of compensation to £115 in recognition of its failure to deliver the actions set out in its stage 1 response.
8. It said that it had learnt the lesson from the case that it needed to ensure that it delivered all the commitments it made when responding to formal complaints.
In the resident’s complaint to the Ombudsman, she said that the landlord did not keep to its commitment for a dedicated housing officer to contact her by 7 October 2022 and 6 January 2023. Furthermore, she added that an update on the proposal for CCTV equipment by 14 October 2022 did not happen, and the landlord had failed to keep to its promise of a CCTV appointment by 13 January 2023. The resident also stated that she did not agree to the landlord closing her ASB case in June 2022.

Assessment and findings

Scope of investigation

The Ombudsman has been provided with correspondence relating to reports of historical incidents of ASB from the resident’s upstairs neighbour from 2016 to January 2022. However, under the Housing Ombudsman Scheme, we may not consider complaints that were not brought to the landlord’s attention as a formal complaint within a reasonable period of normally within 6 months of the matters arising. As the resident made a formal complaint on 5 September 2022, the investigation will not consider the events that occurred from 2016 to January 2022 because these did not occur within a reasonable period of normally within 6 months of the complaint. However, this assessment will focus on the landlord’s actions in response to the resident’s reports from March 2022 up to the landlord’s final response in December 2022.

The landlord’s handling of the resident’s reports of ASB from her upstairs neighbour

When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution:

a. Be fair – treat people fairly and follow fair processes;

b. Put things right, and;

c. Learn from outcomes.

The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the resident. If it is found that a failing did lead to an adverse effect, the investigation will then consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes’.
When assessing complaints about the landlord’s handling of reports of ASB, the Ombudsman’s role is to assess whether the landlord has adequately investigated the reported issues and taken appropriate and proportionate action in line with its policies and procedures.
On 15 March 2022, following a NOSP being served on the upstairs neighbour for their previous ASB, the landlord’s records indicated that it would need to discuss the case with its legal team on the “way forward”, including regarding seeking a suspended possession order against the neighbour. However, it is unclear from its records whether this happened, or if it completed a risk assessment score for the resident.
In any case, the landlord failed to keep in regular contact with the resident or provide her with updates. This was contrary to its own ASB procedure which states that, after completing a risk assessment score with the resident and agreeing on an action plan, it will contact the resident every 2 weeks or as agreed and provide them with updates and information about outcomes. This was a failure on the part of the landlord that would have caused distress and frustration to the resident, as she was left unaware of its responses to the ASB that she continued to report to it, or of the risk that it had assessed her as being at.
The resident reported a further incident to the landlord on 10 June 2022 of shouting between visitors to her upstairs neighbour’s property and asked the landlord to make a note of the incident. The landlord nevertheless informed the resident that, as there had been no major incidents, it would look to close the case. It is acknowledged that the resident disputes that she was informed by the landlord that the case would be closed, however, its records showed that, on 24 June 2022, it contacted the resident via telephone and agreed with her to close the case.
However, the landlord did acknowledge in its formal complaint response that it should have confirmed in writing that it was closing the case, as encouraged by its ASB policy and procedure. It apologised for this error and its stage 1 response offered redress of £65 to ‘put things right’ for this and it not following the policy and procedure. The landlord’s apology and offer of redress for those failings were reasonable in this respect, as its compensation procedure permitted it to offer discretionary compensation from £50 to recognise residents’ distress, inconvenience, time, and trouble, as recommended by the Ombudsman’s remedies guidance.
The landlord’s records nevertheless showed that, on 8 July 2022, the resident reported various incidents of ASB involving her upstairs neighbour throughout June 2022. While it is not entirely clear why the resident did not inform the landlord of these incidents at the time, this should have prompted the landlord to investigate her reports. However, there was no evidence that the landlord did this, or if it had considered if any further action was needed. The landlord therefore failed to act in line with its ASB procedure, which states that, if there is another incident, the officer investigates it and should consider if more robust action is needed.
One of the resident’s reports mentioned that the police had attended her property in June 2022, yet there is no evidence that the landlord followed this up with the police to ascertain more information since it previously liaised with the police to do so in March 2019. Again, the landlord failed to act in accordance with its ASB procedure, which states that, if an incident is reported to the police, it should complete a police disclosure to find out what action they are taking. The landlord’s failure to follow up on the resident’s reports would have caused further distress and frustration to the resident.
The resident reported another incident on 9 August 2022 of loud banging against her window, which she said left her feeling distressed, made her very unwell, and that she had also reported to the police. The landlord informed her that it would write to her neighbour and offered to make a referral to social services and its own tenancy support. While it was appropriate for the landlord to offer support to the resident, there was no evidence that the landlord wrote to the neighbour, as agreed, or that it liaised with the police about this incident either, contrary to the ASB procedure. This was a failure on the part of the landlord as the resident was entitled to believe that it would act on her report. This would have caused additional distress and frustration to the resident.
The landlord’s stage 1 response promised that it would arrange for her case to be reviewed by a solicitor and that it would provide the resident with an update by 14 October 2022. This did not happen. While the landlord’s records showed that it had sought advice from its solicitor on 13 to 14 October 2022 about the proportionality of issuing possession proceedings against the upstairs neighbour, it failed to update the resident on this until 1 November 2022, over 2 weeks outside of its proposed timescale.
Additionally, the landlord made further promises in its stage 1 response that it failed to keep to. It stated that it would provide an update on proposals for CCTV by 14 October 2022 and that it would arrange monthly contact with a housing officer commencing on 7 October 2022. The landlord failed to keep to these commitments either. This would have undermined trust in the landlord and tenant relationship on the resident’s part, which was inappropriate.
While the landlord acknowledged these failings in its final response and offered further redress to the resident to try and ‘put things right’ by increasing its compensation offer to £115, it made further commitments in its final response that it also failed to keep to. It stated that its contractor would contact her by the end of 13 January 2023 to arrange the installation of CCTV. This did not happen. This led to the resident chasing the landlord for an update on at least 2 occasions on 10 March and 8 April 2023.
The resident was eventually provided with an update regarding the CCTV by the landlord on 5 May 2023. This was a considerable and unacceptable delay that would have caused significant frustration to the resident. Although CCTV was installed a few weeks later, the resident has informed the Ombudsman that the ASB is continuing. In view of this, an order is made below for the landlord to remedy this by visiting her, completing an up-to-date risk assessment, and agreeing on a fresh action plan regarding how it will further investigate and address her latest ASB reports. It has also been ordered below to carry out a case review of the failings identified in this report, in order to set out what actions it will take to ensure that these do not happen again and to review its staff’s relevant training needs.
The landlord’s final response also stated that it would ensure that a housing officer contacted the resident on 6 January 2023, and monthly thereafter, to discuss any housing or ASB concerns. Again, this did not happen. The landlord’s records indicated that her housing officer eventually contacted her on 22 January 2022, over 2 weeks outside of the agreed timescale. This would have further undermined trust in the landlord-tenant relationship.
Overall, the landlord’s handling of the resident’s reports of ASB was unsatisfactory. The landlord’s communication with the resident was poor and it failed to keep her updated on the progress of her case. It also made further commitments in its final response that it failed to keep to. In this case, it is considered that the level of compensation awarded by the landlord of £115 does not fully reflect the level of detriment caused to the resident. Particularly, in light of her vulnerability as an elderly person with terminal cancer, which it was aware of.
The Ombudsman’s remedies guidance suggests compensation of over £100 should be considered where there have been failures from the landlord that have adversely affected the resident. The landlord should provide further redress to the resident for the failures identified in this report, and an order of £200 additional compensation is made below, together with the £115 compensation that it previously offered her, if she has not received this already, for it to remedy this.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its handling of the resident’s reports of ASB from her upstairs neighbour.

Orders and recommendation

The landlord is ordered to:
1. Pay the resident £315 total compensation within 4 weeks, which is broken down into:
  1. £200 further compensation for distress and frustration caused by the landlord’s handling of the resident’s reports of ASB.
  2. £115 compensation already offered in its final response, which must be paid to the resident if has not already done so.
2. Carry out a case review of the failures identified in this report and write to the Ombudsman and the resident within 8 weeks, setting out what actions it will take to ensure these do not happen again.
3. Contact the resident within 4 weeks to arrange to visit the resident and review her ASB case and latest ASB reports with her, in order to complete an up-to-date risk assessment for her and agree on a fresh action plan with her regarding how it will further investigate and address her latest ASB reports, with a copy also provided to the Ombudsman.
The landlord is recommended to review its staff’s training needs regarding their application of its ASB policy and procedure.
The landlord must provide the Ombudsman with evidence that it has complied with the above orders, and whether it will follow the above recommendation, within 4 and 8 weeks.