Orbit Housing Association Limited (202103457)

REPORT

COMPLAINT 202103457

Orbit Housing Association Limited

23 December 2021

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 antisocial behaviour (ASB).

Background and summary of events

Background

The resident is an assured joint tenant of the landlord living in a four-bedroom house.
The landlord’s ASB policy refers to a number of definitions of ‘antisocial behaviour’. This includes the definition contained within the Anti-Social Behaviour, Crime and Policing Act 2014 (‘the Act’). The Act defines ASB as follows:
1. Conduct that has caused, or is likely to cause, harassment, alarm, or distress to any person and
2. Conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises or conduct capable of causing housingrelated nuisance or annoyance to any person.
The ASB policy goes on to state
1. Before making allegations to the landlord, it expects complainants and witnesses to:
  1. report allegations to relevant statutory organisations; for example, if the allegation is of a criminal nature, it expects that it will have been reported to the Police in the first instance.
  2. support action recommended and/or proposed by it.
The ASB policy details that on receiving a report, the landlord will take steps to investigate the allegation. It will carry out a risk-based assessment and will agree an action plan with each complainant or witness, which will include how and when it will keep in contact, any support needs the individual may have and how these will be delivered, managing expectations and its intentions as to how it proposes to manage the case with their support. Before closing a case, the landlord will make contact with the complainants and witnesses and clearly explain why it is doing so.
In some cases, the landlord will not always be the organisation with the responsibility or powers to deal with the allegation(s) made. In these circumstances the landlord will adopt a partnership approach and work proactively with other professional organisations such as the Police or Local Authority and share information in line with its Privacy Policy. The landlord may also refer complainants or witnesses to other organisations as appropriate whilst always being clear about its responsibilities and capabilities. Where the landlord has an interest, but another organisation is leading, it may decide not to act until the outcome of the investigation is known.
The resident’s tenancy agreement details that the resident will not commit, or allow members of her household or visitors to commit assault, threatening or intimidating behaviour or verbal abuse against another tenant, occupier or visitor or anyone in the locality, or against the landlord’s employees, contractors, or agents. It further states the resident will not cause or allow members of their household or visitors to cause, a nuisance or annoyance to other people in the locality or to any of the landlord’s tenants, agents, employees, or contractors.

Summary

The landlord’s records show the resident made an ASB report on 3 July 2019 regarding verbal abuse from her neighbour. The landlord explained to the resident that at that moment it was one word against the other and therefore requested that she keep a log and try to record video evidence on her phone. The landlord advised it would contact her in two weeks. A case was opened for the resident.
The landlord attempted to call the resident on 16 and 17 July 2019. It left a voicemail asking the resident to call back if there were still on-going problems.
As no response was received from the resident. The case was closed on 26 July 2019 and a letter was sent to this effect to the resident.
On 12 June 2020 the police contacted the landlord to report that someone in the resident’s household had caused damage to the boundary fence. The police had visited the resident who made a counter allegation of ASB regarding theft. The police advised the landlord of the growing tensions between the resident and her neighbour and requested it worked with the landlord to resolve the matter.
The landlord wrote to the resident on 24 June 2020 to advise of the police communication about an allegation of criminal damage perpetrated by a member of the resident’s household. The landlord reminded the resident that they must abide by the terms and conditions of their tenancy. It confirmed it would not be taking any further action at this stage.
On 26 July 2020 the landlord wrote to the resident to advise that her ASB case had been closed as it was unable to contact her, and it was not provided with any further information.
On 2 August 2020 the resident wrote to the landlord explaining she was having problems with her neighbour putting nails through the fence and the police had attended and requested that she ask the landlord to inspect the property. The resident was concerned for the safety of her children and provided photographic evidence of the nails in the fence.
On 3 August 2020 the landlord responded to advise that it would not become involved with neighbour disputes however explained it’s mediation service that was available to the resident.
The resident responded, explaining that she didn’t understand why it could not assist as the police confirmed it contacted the landlord about the nails in the fence as they were a safety risk to her children. She mentioned that her neighbour would not remove the nails and her youngest child was injured by one of the nails.
The landlord responded on 5 August 2020 and advised that although it received the suggestion from the police that it inspect the nails, it was unable to do this due to the pandemic restrictions in place at the time. The landlord advised it would send the residents’ correspondence to its Property Management Team and contact her in view of arranging an appointment. The landlord also offered an option of mediation and for the resident to let it know if she would be interested in this to resolve difference between her and the neighbour.
An ASB case was opened on 12 August 2020 regarding the nails coming through the boundary fence and the landlord provided the advice that it did not maintain the boundary fence therefore the resident could file or cut back the nails.
On 17 August 2020 the resident raised reports of the smell of cannabis coming from her neighbour’s property which was affecting her family and the landlord advised that the resident would need to raise this with the police. The landlord emailed the resident on 19 August 2020 to confirm her reference number, to confirm that she was happy for the landlord to speak to her neighbour and the police about the incident and whether she was happy for her name to be disclosed. She responded the same day that she was happy with sharing her name with the police but not with the neighbour.
The landlord made a risk assessment on 19 August 2020 and found the resident and her household to be at medium risk.
The landlord responded on 21 August 2020 to confirm a case had been opened and advised her to report any further illegal drug related nuisance to it and the police. The landlord advised it would contact the police about the matter and a decision would be made on whether to discuss the issue with the resident’s neighbour.
Following the police investigation, it advised that there were no other reports of the smell of cannabis from any of the other neighbours. The police also reported that there was a physical altercation between the resident’s household and the neighbours which was captured on CCTV and both parties were awaiting interviews with the police. It was requested that the landlord did not make any home visits until the police investigation was completed.
The police advised there was no evidence regarding the smoking of cannabis allegation and therefore that case was closed on 9 November 2020. This was relayed to the resident and the landlord confirmed as there was still an ongoing police investigation, once a decision was made by the police, the landlord would be in contact, and visits would be arranged to both parties involved.
The case was reopened on 19 November 2020 following the police feedback regarding the altercation and the landlord wrote to the resident about this on 20 November 2020. It reminded the resident about compliance with her tenancy agreement and requested a meeting with the resident and the police on 1 December 2020. During the meeting, the landlord suggested a Tenancy Management Plan (TMP) was put in place which the neighbour would also sign. The resident agreed to this. The landlord also offered support to the resident from a third-party organisation and the referral was accepted and subsequently made to the organisation.
This Service has been provided with the TMP dated 1 December 2020 signed by both the resident and her neighbour.
The case was closed on 18 December 2020 and the resident was informed of this. The landlord confirmed that the resident advised she did not need support at this time, and she declined mediation as she felt this would not make a difference. The landlord asked her to reconsider this. It also acknowledged issue with the resident’s damaged fence at the bottom of the garden and arrangements were being made to repair it.
On 18 December 2020 the resident emailed the landlord to advise of verbal harassment by the neighbour towards a member of her household. She felt the neighbour was not following the TMP.
The landlord responded to query if the incident was witnessed independently and whether the resident had reported this to the police. It advised if the TMP was not being adhered to, then mediation would need to be considered.
On 14 February 2021 the resident raised concerns regarding a new incident of ASB from her neighbour. She confirmed she had also contacted the police about the incident.
The landlord confirmed a new case was opened on 18 February 2021 to investigate the new ASB allegations. It would liaise with the police and speak to the neighbour about the reports.
The resident raised a complaint on 22 February 2021. The resident expressed her concern with the landlord refusing to support her with her claims of harassment and intimidation from her neighbour. The resident confirmed all the ASB reports she had made, and that the landlord did not take any action against the neighbour.
On 22 February 2021 the landlord acknowledged the resident’s complaint and advised that it would keep her updated on the progress of the complaint.
The landlord requested information from its Community and Anti-Fraud (CSAF) team on 22 February 2021 regarding the ASB issues.
On 1 March 2021 the landlord issued its stage 1 response in which it concluded that there was no service failure found. The landlord advised that her reports of her neighbour hammering nails through the fence was not something it could address as it did not maintain the fence. It suggested the resident file or cut the nails to avoid injury. Following an altercation with the neighbour and police involvement, a case was opened by the landlord’s CSAF team and a TMP was suggested which the resident agreed to. The landlord confirmed following reports of further ASB from the neighbour, a new case was opened and the CSAF team would be in touch to discuss the matter once it received evidence from the police. The landlord clarified that no complaint was raised on its system on 27 November 2020 as the resident had only requested an update on her ASB case at the time. The landlord confirmed that following its call with her on 26 February 2021 regarding the complaint outcome, as she was unhappy with this complaint response, it had requested the case to be reviewed.
The resident’s request to escalate the complaint was acknowledged by the landlord on 13 March 2021. It advised she would be contacted in 15 working days.
On 19 March 2021 the landlord sent a letter to the resident advising it liaised with the police regarding the ASB issues raised on 14 February 2021 and the police confirmed that due to lack of evidence the case had been closed.
The landlord issued its stage 2 response on 30 March 2021. The landlord confirmed that the CSAF team had resolved the issues with the resident’s neighbour regarding the nails through the fence and acted on all the resident’s reports of ASB. It confirmed that both the resident and her neighbour signed up to a TMP and CSAF would continue to support the resident.
On 23 June 2021 the landlord wrote to the resident confirming it had investigated her case regarding ASB from her neighbour. It explained the allegations made were more of a neighbour dispute than ASB and that at this stage there was insufficient evidence for further tenancy action. Both the resident and her neighbour had agreed to mediation and therefore the case would be closed whilst the mediation was undertaken.

Assessment and findings

When investigating complaints about ASB, it is not the role of the Ombudsman to determine whether the ASB exists as alleged. Rather, the Ombudsman’s role is to review the evidence that is available and determine whether the landlord acted in line with its duties, obligations and procedure as set out in any relevant policies.
The Ombudsman has not seen any evidence which suggests that the landlord has acted inappropriately or departed from its procedure in relation to the incidents which occurred. As per its ASB policy, the landlord looked into each report and explained to the resident what the next steps were. In line with its ASB policy, it liaised with the police to establish what had happened in each instance and advised the resident that it would have to wait for the police to complete their own investigation before the landlord could complete its own investigation, as per the police request and policy. Each time an ASB case was closed, the resident was informed of this and the reason for closure was also provided.
With regards to the issue with the nails through the fence I appreciate the resident had an expectation for the landlord to come and look at this based on the advice she was given from the police. I also note that her child was hurt on the fence. I can see that the matter was referred to the landlord’s Property Management Team however it is unclear if a visit was actually made given that the incident occurred during the pandemic where restrictions were in place. Whilst a case was opened regarding this incident, ultimately, the landlord was limited in its actions as it did not own the dividing fence. It suggested cutting back or filing down the nails as a solution as it was unable to take any action and this was reasonable.
The landlord explained the purpose of a TMP was mainly to encourage behaviour change. It is a voluntary plan so not contractually binding however it is a good tool to use to show an individual is willing (or not) to work with agencies to resolve issues. It can also be used as evidence should there be need for court/enforcement action. In this situation, had it been proven that the neighbours were intentionally causing alarm or distress then the landlord would have been able to consider further tenancy action. However, given there were counter allegations in this instance and often a lack of evidence or independent witnesses, the landlord was further limited in its actions. As such, its offer of mediation was reasonable in the circumstances.
Mediation was offered numerous times following the different reports of ASB from the resident however this was declined until July 2021 when both the resident and her neighbour accepted to proceed with this. The resident’s previous reasons for refusing mediation are noted, and not disputed. However, given that there was an absence of evidence for the landlord to take enforcement action against her neighbour it was appropriate for it to consider what else could be done to try to tackle the behaviour the resident had reported.
It was appropriate for the landlord to ask the resident for further information before deciding whether it was necessary to take any action against her neighbours. I can see that there was limited evidence particularly with the cases of verbal abuse. The landlord has a duty to investigate reports of ASB that it receives and to gather evidence. The landlord must ensure that all reports can be supported by sufficient evidence before taking any action. Therefore, whilst I appreciate the upset that the situation had caused the resident and her family, the landlord did require further input from the resident to investigate her reports.
It is noted that the resident has been reporting the same types of behaviour by both alleged perpetrators over the last few years. However, this would not amount to evidence, and the landlord had a duty to ensure that the then current reports were corroborated by other evidence before any action could be taken against the neighbour.
With regards to the assault, following the police investigation and the CCTV evidence available, it was found that both parties were actively involved in the confrontation and both parties were found to be at fault. Therefore, it was reasonable for the landlord to send a caution about this incident to both parties.
With regards to the drug use report, the police were the correct body to lead the investigation and were unable to provide evidence of any drug use by the resident’s neighbours. The landlord in line with its policy was therefore unable to take any legal action against the neighbour.
Based on my investigation, there is no evidence to suggest that there was a failing by the landlord in the handling of the ASB case.

Determination (decision)

In accordance with paragraph 54 of the Scheme, there was no maladministration by the landlord in its handling of antisocial behaviour (ASB).