Orbit Housing Association Limited (201813089)

REPORT

COMPLAINT 201813089

Orbit Housing Association Limited

28 July 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 complaint is about:
   1. The landlord’s handling of the resident’s reports concerning anti-social behaviour.(ASB)
   2. The landlord’s complaint handling.

Background and summary of events

2. The resident occupied a bungalow under an assured agreement with the landlord dated 3 February 1992, together with her partner, who is her representative in this complaint. The complaint involved two neighbours who occupied in properties either side of the resident. They will be referred to as Neighbour A and Neighbour B respectively. According to the resident, Neighbour A’s lodger was related to Neighbour B.

Legal and policy framework

3. It is assumed that the resident’s neighbours were subject to the same obligations under the tenancy agreement. Under the agreement, the resident’s obligations included:
   1. Not to cause or allow members of their household or invited visitors to cause a nuisance or annoyance to neighbours or other occupiers of the landlord’s property
   2. Not to commit or allow members of their household or invited visitors to commit any form of harassment on the grounds of race .. which may cause a nuisance or offence to another tenant or other occupiers of the landlord.
4. Moreover, causing nuisance or neighbour may be grounds for repossession,  in certain circumstances. The resident had a right to take in lodgers with the written consent of the landlord. Such permission would not be unreasonably refused.
5. Under the landlord’s ASB policy, the landlord stated its strong commitment to dealing with allegations of ASB. It recognised the importance of tackling ASB and acknowledged its effect and was committed to preventing and detecting it.
6. The policy set out as follows:
   1. What did and did not constitute ASB. ASB included noise deemed to be a statutory nuisance and verbal abuse. Otherwise, in the main, it included offences such as arson and assault. ASB did not include disputes, general living noise such as doors banging or pet nuisance.
   2. The landlord expected allegations to be factual and detailed enough for it to take action if necessary and it could refuse to accept an allegation if it was not given sufficient information.
   3. It expected residents, before making allegations, to take responsibility for their own behaviour and for that of every person occupying the property and where appropriate, attempt to communicate with the alleged perpetrator to resolve the issue.
   4. It also expected residents to report allegations of a criminal nature to the police in the first instance. It would take all allegations seriously and would treat each on its own merits and it would use all available tools and powers as appropriate to resolve issues.
7. It investigated ASB in accordance with its investigations policy which defined an investigation as the gathering of all relevant information and evidence in order to determine and pursue a course of action.
8. Under the investigations policy the landlord could:
   1. Undertake directed surveillance e.g., person specific which includes the use of various methods, including CCTV and observations, if absolutely necessary and only if it is legitimate and proportionate to do so.
   2. Use the services of professional witnesses to assist in securing evidence. All cases that were investigated would be logged and information or evidence gathered and recorded.
   3. The decision to carry out or act on any information or evidence gathered was a decision that rested solely with the landlord.
9. The landlord’s complaints procedure consisted of a two-stage process. It would respond within 10 working days at Stage one. Where complaints required more detailed investigation, it would extend the timescales, initially by a further 10 working days. The resident had a right to request a review. It aimed to respond within 20 working days. If more time was needed at either stage, it would contact the customer to discuss this and explain the reasons why. It excluded complaints about Issues that had happened over six months ago, unless there are valid reasons as to why the issue was not raised sooner

Chronology

10. The evidence showed that there had been a lengthy history to this complaint. The resident had been making reports about her neighbour A over a number of years. While the Ombudsman has noted the longer history and background, this investigation will focus on approximately the 12 month period preceding the resident’s formal complaint. The Ombudsman considers that this is a reasonable period of time to consider as it would be disproportionate for the Ombudsman to investigate the period over a number of years. In any event, the Ombudsman would generally expect complaints to address events in the preceding six months, in accordance with its Complaint Handling Code Complaint and paragraph 39 (e) of the Housing Ombudsman Scheme. The Housing Ombudsman Scheme (housing-ombudsman.org.uk).
11. However, it is useful to summarise some of the events that had taken place prior to August 2019 in order to give context and background.
12. According to a summary of events by the landlord, the purpose or date of which was not provided, the following events occurred:
    1. The landlord opened an ASB case in June 2017. The resident had completed diary sheets in June 2017.
    2. On 22 September 2017, the landlord wrote to the resident advising the parties not contact to each other.
    3. The landlord provided advice on a move and mutual exchange.
    4. On 31 August 2018, the landlord wrote to the resident stating that due to insufficient evidence to support the reports as well as counter allegations being made, it was unable to take any action.
    5. On 3 October 2018, the resident reported that she was concerned for her safety. The landlord did not make a safeguarding referral. The ASB case had been closed.
    6. In March 2019, the parties were referred to mediation and signed a ‘Good Neighbour Agreement’.
13. On 15 March 2019, the resident’s partner wrote to the landlord and requested a fence, a date for proposed mediation, and help to relocate. He stated that Neighbour B’s nephew, moved in with Neighbour A as a lodger. He enclosed a list of incidents covering January to March 2019 including crashing, drilling, banging, arguments during the day. He also reported that Neighbour A had installed a CCTV camera pointing at the resident’s garden and overhearing the lodger using abusive and threatening language towards him.
14. According to the landlord’s summary note, in April 2019, the resident’s partner reported that the neighbour assaulted him and that one of the neighbours threw food into the resident’s garden. The police did not take further action in either case. Following reports that when either the resident or her partner were in the rear garden, the resident’s partner was verbally or physically abused by the neighbours on either side, the landlord offered the services of a professional witness. After some difficulty agreeing a date, a professional witness to attended the property on 22 August 2019 for approximately three hours. According to the witness’ report, the resident’s partner went in and out of the garden and did some gardening including strimming the grass. Although the neighbours were present, no ASB occurred. The witness noted that neighbour A’s CCTV was directed into the public space  and the garden at the rear but did not specify whose garden. He viewed the resident’s partner’s extensive video clips.
15. According to the landlord’s summary note, the landlord considered arranging temporary CCTV at the front of the property in September 2019. The resident’s partner alleged that the neighbour’s lodger was urinating on the fence between their gardens and on his doorstep but the resident did not provide time and dates. Investigations showed there was a malodorous weed growing at the bottom of the neighbour’s garden.
16. The landlord wrote to the resident on 4 September 2019 regarding the report by the professional witness. The witness had reported there was no incident of abuse. In the circumstances, it was closing the ASB case. It had noted there was extensive video recording and neighbours had reported being filmed. It asked the resident’s partner to cease filming. If the police investigated the resident’s partner for harassment and any evidence was found, action would be taken against the tenant.
17. On 28 January 2020, the landlord wrote to the resident’s MP stating that it was aware that the resident had raised a Community Trigger.
18. There was a gap in the evidence during which period presumably there were no further reports or steps taken in relation to the ASB.
19. On 20July 2020, according to a telephone attendance note by the landlord, the resident’s partner reported that he had heard Neighbour B saying he would kick his door in and “rip out his eye out”, and also threatened another neighbour. There had also been threats to kill. He had reported his complaints to the police. He also reported that he heard Neighbour A’s lodger and Neighbour B engage in racial abuse against some passers-by. He himself considered that he was racially abused because he was Scottish. The landlord offered to refer the resident to a counselling service which the resident’s partner declined.
20. The resident’s partner made a complaint on 8 August 2020 that included as follows:
    1. He had received a “sanction” from the landlord. On 23 July 2020 the landlord accused him of being the instigator of the incidents.
    2. He alleged that the landlord made a number of remarks which he objected to  including:
       1. The  landlord told him it was “ok” for the neighbour to film the back garden.
       2. The landlord’s officer described its residents as school children.
       3. It would not get involved in a neighbour dispute “till blood was spilt”.
    3. In March 2020, the resident’s partner had instigated a Community Trigger but was told did not meet the criteria. The landlord then offered mediation which he said he considered to be rude.
    4. He had sent diary sheets to the landlord on 16 June 2020 but did not receive a reply. (The landlord did not provide the diary sheets to this service).
    5. The professional witness announced his arrival and the neighbours would have been aware he was attending.
    6. He had reported that Neighbour A had erected a fence in the front garden, but no action was taken.
    7. It took six months for the landlord to explain whether the front garden was communal.
    8. He summarised his reports consisting of noise, threats made to him by the neighbours, stolen items, and damage to the resident’s possessions.
21. On 3 October 2020, the resident wrote to the landlord stating he was waiting for a response to his 16-page complaint of 8 August 2020. He made further reports, some of which were apparently historical and included:
    1. Neighbour A had made false allegations against him, had abused his partner, and offered £50 to other people to assault him.
    2. Neighbour A had provoked other neighbours who had harassed and threatened him with violence and gestures.
    3. He had a recording of Neighbour A’s lodger assaulting him by barging into him, punching and swinging, spitting in his face, and throwing a six-foot spear.
    4. The lodger had received a warning from the Information Commissioner’s Office for having filmed him. The landlord had still not asked Neighbour A to remove his CCTV camera.
22. The landlord wrote to the resident’s partner on 13 October 2020 to explain it had been experiencing higher than normal volumes of “enquiries”, so that it could take “a little longer” for it to respond to the resident’s partner in full. It reassured the resident that it would thoroughly investigate the case and would keep him fully updated throughout and advise him of any subsequent steps.
23. The landlord wrote to the resident on 19 October 2020 with its first stage response as follows:
    1. It referred to his “email enquiry dated the 12 October 2020”.
    2. It stated that the landlord had “tried to engage with the resident’s partner again” regarding the issues he had reported and there had been four different tenancy officers assigned to investigate the issues he had raised. The most recent call was on 24 September 2020 regarding dog faeces being thrown at his door. The landlord had stated that without evidence of the harassment, the landlord would not be able to take any action and it would not reimburse his cleaning costs.
    3. The resident was waiting for the police to view CCTV regarding verbal abuse from his neighbour. If they deemed it to be harassment, then the landlord would be able to act accordingly. It was unable to take any action regarding the issues he had experienced until evidence could be submitted or the CCTV had been reviewed by the police.
    4. In the circumstances, the landlord had contacted him regarding the issues and provided him with an explanation as to why no action could be taken without evidence and therefore, it did not uphold his complaint.
24. On 4 November 2020, it telephoned the resident’s partner. It asked whether any of the allegations had been recorded on the CCTV that he had been provided by Victim Support. The resident’s partner stated he had not switched the CCTV on yet due to the rain. It advised him to turn on the CCTV as it was unable to take any action without proof of his allegations. The police were not taking action. He had not contacted Environmental Health (EH) at the local authority about the noise issues as he felt this was for the landlord to do. It explained how EH worked and that it would support his case if it had proof. “It was agreed” that all appropriate action has been taken and that there was not enough proof to support any of the allegations and therefore the appeal was not upheld.
25. On 8 November 2020, the resident’s partner wrote to the landlord referring to the telephone conversation of 4 November 2020. He said the landlord had told him that the tenancy rules were not enforceable. He did not accept that the police and local authority were responsible for the case. He was awaiting a response to his complaint of 8 August 2020. He stated that the professional witness acknowledged there had been no evidence of harassment from the resident’s partner’s recordings. He considered that the landlord was lying.
26. On 20 November 2020, the landlord wrote again to the resident referring again to his “email enquiry 12 October 2020”. The letter was a copy of its letter of 19 October 2020 except that it had added that his request for a Community Trigger had been refused.
27. On 30 November 2020, the police organised a review of the resident’s partner’s application for a community trigger that had been refused and invited the landlord to a review meeting. The refusal letter was not provided to the Ombudsman.
28. The landlord wrote to the resident’s partner on 5 January 2021 with its second stage response as follows:
    1. It referred to a telephone conversation. It hoped the resident’s partner would use the letter to assist with getting help from the police to deal with the criminal offences he had reported. His reports were about threats to kill, assaults, and criminal damage. The resident’s partner had agreed that without police “convictions” the landlord had no power to deal with criminal offences. Should his neighbour be convicted of any offences against him, this “may” give it the powers to look at breaches of tenancy.
    2. It considered that the first complaint response was correct. It “genuinely” hoped that he could gain the support from the local police force to deal with the criminal offences he was “trying to report” to them to help both him and the landlord challenge these concerns further.

Assessment and findings

The landlord’s handling of the resident’s reports concerning ASB.

29. The investigation was hampered by there being gaps in the evidence, demonstrated by the resident’s references to telephone conversations, diary sheets, and reports which were not provided to the Ombudsman. For example, it was not clear what prompted the landlord’s instruction of a professional witness as there was no evidence of the resident’s reports that the landlord summarised in its letter 4 September 2020. The Ombudsman would expect the landlord to keep comprehensive records of its actions and will make a recommendation in that regard.
30. While this investigation has not focussed on the years prior to August 2019, the Ombudsman has noted the events where it provides context to its findings. It has noted for example, that the landlord had, in the past, provided diary sheets, advised the resident that the parties should not contact each other, offered mediation, provided advice on a move, considered a safeguarding referral, arranged for the parties to sign a ”good neighbour agreement”. Such actions demonstrate a reasonable response to reports of ASB.
31. It was reasonable of the landlord to instruct a professional witness to attend the resident’s property in 2019. It was also reasonable of the landlord to investigate the odour of urine the resident’s partner had reported in September 2019 and to consider installing CCTV. However, while the decision whether to install CCTV was for the landlord to make, there was no evidence of an explanation why it did not do so.
32. There was equally no evidence of the landlord investigating the use of CCTV by Neighbour A which the Ombudsman would expect the landlord to do, given Neighbour A could be breaching data protection in relation to the resident and could constitute a form of nuisance, such as it found in relation to the resident’s partner’s filming.
33. Following the fresh reports of June 2020 and 20 July 2020, the Ombudsman would expect the landlord to have acknowledged the resident’s partner’s further reports. While there was a history of ASB, and the landlord had made various attempt to address the reports of ASB; on receipt of fresh reports, the Ombudsman would expect the landlord either to open a case and carry out a fresh investigation or provide a reasonable explanation of why it did not do so. There was no evidence the landlord did so.
34. The landlord limited its response to referring the resident to the police and the local authority. It is reasonable to rely on the police to a certain extent. The police has greater investigatory powers and is the appropriate body to investigate and address criminal offences. However, it is not the police’s role to investigate nuisance behaviour. The police does not always have the capacity to investigate every case and, moreover, its standard of evidence is higher. A prosecution has to prove its case beyond reasonable doubt, whereas the civil burden of proof is on the balance of probabilities. The landlord’s response, that it was a police matter, was frustrating for the resident and did not demonstrate its commitment to tackling ASB. Its explanation that without police “convictions”, the landlord had no power to deal with criminal offences was not appropriate. The landlord would not be able to apply for a criminal sanction but could apply for a civil sanction. Moreover, its own policy suggested that the police was the authority in the first instance and that the landlord would still consider what action to take. However, it is noted that the evidence indicated that the real issue for the landlord was that it lacked the necessary evidence to initiate legal proceedings.  Nevertheless, it is a step a landlord could consider taking in appropriate circumstances. Simply referring the resident to the police was not adequate. If the landlord’s decision was not to pursue reports, it need to provide a clear and comprehensive explanation.
35. The Ombudsman was not provided with evidence of noise reports but there was evidence it was an issue for the neighbour. It was reasonable of the landlord to explain the role of the local authority in November 2020 and to explain how the local authority could be of assistance. However, the local authority only considers noise when it is a statutory nuisance and it is noted that the landlord’s policy only considers statutory nuisance. While it would be for a local authority to measure and address statutory nuisance, a landlord could consider having tools to carry out initial investigations. In addition, the Ombudsman would expect the landlord to consider circumstances where noise can be deemed to be a nuisance such as when it is persistent and deliberate. However, the landlord also needs to be clear about what is and what is not deemed to be noise nuisance. The Ombudsman will make a recommendation in that regard.
36. The Ombudsman appreciates the challenges a landlord faces when receiving allegations and counter allegations. That is not unusual in neighbour disputes. It is noted that the landlord excludes neighbour disputes. However, neighbour disputes can be a source of ASB and in any event, there was no evidence that that was its reason for not taking action. The report of 20 July 2020 raised serious issues. Its approach lacked any robustness that the Ombudsman would expect. It had a number of options open to it, none of which were evidenced. It could visit the parties, offer diary sheets, write letters of warnings, or consider inviting the parties to sign an acceptable behaviour contract. While such steps need to be taken with caution so as not to exacerbate a situation, they are steps that can be taken even where there is no conclusive evidence. While it has to have due regard for its resources, and the Ombudsman bears in mind the limitations due to lockdown in 2020 onwards, there was no evidence of the landlord taking any such steps. Doing nothing would give the impression to both sides that it did not take the matter seriously. While the landlord was entitled to take a view on whether to open an ASB case act on reports made by residents, it should provide a reasonable explanation why not, as it did in 2018. There was no evidence it did so again until its complaint response on 12 October 2020.
37. The Ombudsman would not have expected the landlord to have reported on the resident’s reports regarding offensive language to passers-by, or to have treated any mockery of the resident’s partner’s accent as “racist” however, it should note the offensive nature of those comments.
38. In light of receiving counter allegations, the landlord was entitled to form a view as to whether the resident’s partner had “instigated” incidents and, if appropriate, to write warning letters to the resident. However, that does not mean that the landlord does not need to consider the allegations made by the resident’s partner.
39. The evidence indicated that the landlord had taken steps in response to the resident’s partner’s reports in the past, it had found that there was no corroborative of the resident’s reports and indeed the video recordings did not corroborate the resident’s reports. However, the landlord should not make assumptions and treat the past as evidence of the present. In the view of the Ombudsman, the landlord has a role in demonstrating it treats reports seriously and demonstrates a robust approach. The policy whether to carry out an investigation or act on any information or evidence gathered was a decision that rested solely with the landlord is reasonable. However, it needs to provide a coherent and reasonable explanation for its decisions.

The landlord’s complaint handling.

40. There as an inappropriate delay to the landlord’s response in replying to the resident’s partner’s complaint of 8 August 2020 and to refer to the resident’s letter of 12 October 2020. The letter was clearly marked complaint and the resident chased the complaint by reference to the date. It was also inappropriate and confusing to send two complaint responses and to refer to the complaint as an “enquiry”. It is not clear when the resident asked to escalate the complaint however the evidence showed that it had rejected the appeal of the complaint on 4 November 2020 yet it did not write formally to the resident until 5 January 2021. The landlord did not address the resident’s complaint in any detail. While the Ombudsman may consider it reasonable for the landlord to exercise its discretion in relation to issues that were over six months old, there was no such explanation. It did or use the complaints process to consider what steps it could take or to provide a clear explanation for not taking action.

Determination (decision)

41. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in relation to the landlord’s handling of the resident’s reports concerning ASB.
42. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in relation to the landlord’s complaint handling.

Reasons

43. While the landlord did not consider there was conclusive evidence of ASB, it could have taken a more robust approach and if it decided not to pursue investigations, to provide a clear and reasonable explanation why it did not do so.
44. The landlord’s complaint response was delayed, confusing and did not address many of the issues the resident’s partner had raised.

Orders

45. The landlord is ordered to pay the resident compensation in the amount of £175 within 28 days as follows:
    1. The sum of £100 in relation to the landlord’s handling of the resident’s reports concerning ASB.
    2. The sum of £75 in relation to the landlord’s complaint handling.
46. The landlord should within 28 days, inspect Neighbour A’s CCTV as to its positioning and its recordings.
47. The landlord should confirm compliance with the order to the Housing Ombudsman service with the above orders within 28 days of this report.

Recommendations

48. The Ombudsman makes the following recommendations:
    1. The landlord should offer support directly to the resident and not only her partner.
    2. The landlord should inspect residents’ CCTV from time to time to ensure it is not intrusive or in breach of data protection regulations.
    3. If it does not have one already, the landlord should consider adopting a policy in relation to the use of CCTV.
    4. The landlord should consider whether or not to limit its definition of ASB to statutory noise and should also considering having a policy and procedure that addresses noise nuisance.
    5. The landlord should review its record keeping and consider keeping a written record of its telephone conversations in a consistent manner so that it can retain a record of agreements, actions, and decisions by the landlord.
    6. The landlord should:
       1. Comply with its own complaints policy and procedures,
       2. Engage in a meaningful review and take the opportunity to provide comprehensive explanations for its decisions
       3. Consider attending this service’s training events, such as learning from complaints workshops – https://www.housing-ombudsman.org.uk/landlords-info/workshops/.
49. The landlord should notify the Ombudsman of its intentions regarding these recommendations within 28 days of this report.