Peabody Trust (202125077)

REPORT

COMPLAINT 202125077

Peabody Trust

8 June 2023

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

1. The complaint is about the landlord’s handling of the resident’s:

1. Request to have her tenancy changed so she could be rehoused via a mutual exchange or house swap.
2. Reports of anti-social behaviour (ASB).

2. The Ombudsman has also considered the landlord’s complaint handling.

Background and summary of events

3. The resident is an assured shorthold tenant of the landlord, a housing association. She pays intermediate market rent. The tenancy commenced on 8 August 2014 and the property is a 3rd floor flat.
4. The resident stated there had been ongoing issues with her neighbour and multiple residents of the estate concerning antisocial behaviour (ASB).
5. During June 2021, following the resident’s reports of noise disturbances, the landlord contacted residents of the estate to find out if they were being affected by noise nuisance. The landlord also issued a warning letter to the alleged perpetrator with regards to noise nuisance. It explained to the neighbour that he had been served with a section 80 notice for his behaviour which he breached, the landlord then served him with another notice, however it continued to receive complaints. The landlord also asked for an acceptable behaviour agreement to be signed by the resident’s neighbour. This agreement stated the neighbour would not create noise nuisance during unreasonable times and he would not place rubbish next to his entrance in the communal area.
6. On 27 July 2021, the resident made a report about her neighbour’s behaviour. This resulted in the landlord opening an ASB case on 30 July 2021. The resident explained she and other residents in the past had been harassed, assaulted, had damage to their property, witnessed drug dealings and noise disturbances. Most recently the neighbour would leave rubbish at his doorway, spend hours in the communal area only wearing his boxer shorts, and would play loud music. She expressed concern about the level of violence from her neighbour escalating.
7. On 30 July 2021, the neighbourhood manager contacted the resident to discuss the matter further and explained the actions taken so far and that the landlord would like to install sound monitoring equipment into the resident’s property in order to evidence the noise nuisance being reported, or have a professional witness in the property for one or two nights to evidence the noise nuisance. With regards to drug dealing, it explained this would require police involvement as they have more powers to ascertain if drugs are being taken or supplied and would be in a position to search for any contraband to see if a crime was being committed. The neighbour manager stated she would make a visit to the property once she was able to arrange assistance due to safety concerns.
8. Throughout August 2021, there was communications between the landlord and various parties concerning the neighbour. Subsequently on 6 September 2021, the resident contacted the landlord to explain the council’s community trigger team had accidently deleted her request for a community trigger meeting. The resident stated that no one had answered her specific questions about her tenancy being swapped from an intermediate market rent to a social housing tenancy. She explained if she had a social housing tenancy, she could easily move away from the perpetrator using a homeswap. She said she could not see the value of continuing to log all incidents of violence, harassment and other ASB. She noted that, despite efforts to resolve the matter, his behaviour had not changed. The resident stated that if the landlord was not able to advise her on her request to be a social housing tenant then she wished to escalate the complaint to stage two of its complaints procedure.
9. The landlord responded, stating no stage one complaint had yet been registered as there was no service failure. It later refused to log the resident’s complaint on 8 September 2021 on those grounds.
10. The resident contacted the Housing Ombudsman Service following the landlord’s refusal to log her complaint. We forwarded the complaint onto the landlord and asked it to respond to the resident.
11. A visit took place on 10 September 2021 to discuss the incidents and make the neighbour aware that he could not continue with his behaviour without repercussions. Following this on 13 September 2021, the landlord contacted the resident to find out if any further incidences had occurred.  It also called the neighbour to reiterate the conversation from its recent visit.
12. The resident contacted the landlord on 14 September 2021, she explained that she could not stay in the flat because it was unsafe and she wanted to move. She explained the most recent incident was being pushed and kicked by her neighbour on the stairs, he had also run a bike into her leg when she was walking. The resident informed the landlord she could not remember if this was before or after their meeting from 10 September 2021.
13. The landlord responded stating it was doing everything in its power to resolve the issue. It explained it was a social housing association which provides housing to the people most in need of it, which meant that often residents came from vulnerable backgrounds. It explained it would only seek legal action as a last resort as it aimed to support residents being able to maintain and sustain their tenancies, so they are not left homeless.
14. With regards to the resident wanting to change her tenancy from an intermediate rent one to an assured tenancy, it explained this was a legal matter and it could not be changed. To change the resident’s tenancy to a social housing agreement, she would need to make an application to the local authority to go onto the housing register. This would be for her to move to a different property, rather than an amendment for her existing property.
15. The landlord issued a warning letter to the neighbour on 20 September 2021. This addressed the following concerns:
    1. Loitering partially dressed in the communal area.
    2. Loud music.
    3. Leaving rubbish outside the door.
    4. ASB.
16. It reiterated what could happen should the neighbour breach the warning letter. It also offered further support to the neighbour.
17. On 22 October 2021, the landlord issued its stage one complaint response. It understood the resident’s complaint to be about her request to convert her tenancy and the ongoing ASB issues concerning her neighbour.
18. With regards to the tenancy, the landlord explained it was unable to change this and referred her to her local authority for social housing. With regards to the ASB it explained its neighbourhood management team had been in touch with her and it was working towards a resolution. It stated it would be better for them to liaise with her regarding this. In response to this, the resident informed the landlord on 25 October 2021 that she did not accept the stage one response and wished to escalate her complaint.
19. During October 2021, a community trigger meeting was held, the landlord, police, local authority and neighbourhood manager were present and discussed the ongoing issues. The resident was informed of the outcome of this meeting on 27 October 2021. Following this, on 9 November 2021, the landlord wrote to the resident in regards to her ASB case which was raised on 30 July 2021. It explained it was closing the case because it had spoken to the alleged perpetrator and taken all actions available to it at the time. These were taken in combination with the police and local authority. The following was agreed with the resident and completed, prior to the close of the case:

1. It spoke with the neighbour about the allegations, pertaining to noise nuisance, the rubbish outside of the property and the various incidents of alleged door kicking and loitering in the communal area.
2. Visits were made to the neighbour’s property to discuss these issues with him in person.
3. It instructed the caretaker to assist in clearing the communal hallway and to advise when this happens so it can speak with the resident and take any necessary actions following the incident.
4. It offered the resident sound recording equipment, as a way of evidencing the noises being reported.
5. It liaised with the police and made requests for information regarding the Children and Adults with Disabilities (CAD) referrals provided.
6. It attended the community trigger case that the resident raised, and the Multi-Agency Risk Assessment Conference (MARAC) referral made on her behalf and completed all outstanding actions there.
7. It responded to the resident’s complaints.
8. It issued a warning letter in relation to the breaches that it was able to evidence.
9. It arranged for an acceptable behaviour agreement contract to be signed.
10. Throughout the duration of the case, it liaised with supporting services.

20. On 22 December 2021, the landlord issued its stage two complaint response. It understood the complaint to be about the resident’s request to have her tenancy converted to a general needs tenancy and how it addressed her reports of ASB.
21. The landlord reiterated its stance with regards to the transfer of the resident’s tenancy agreement. It explained that, as the resident had an intermediate market rent tenancy this did not give the rights to a transfer or an assignment of the tenancy, and it further reiterated it could not convert her tenancy to a general needs tenancy as she had requested.
22. With regards to the ASB the landlord reviewed how the resident’s reports were managed. It acknowledged there was a community trigger meeting and the case remained open. The landlord explained when it received the resident’s reports of ASB it investigated the matter, it visited the alleged perpetrator, issued a warning letter, ensured a behaviour agreement was signed and contacted the police for further information regarding reports. It also noted the resident was offered sound recording equipment however this was declined. The landlord apologised for the impact the neighbour’s behaviour was having on the resident, and acknowledged her feelings that it was not doing enough to resolve the issue. However, it explained it can only take enforcement action where there is substantial evidence.
23. The landlord acknowledged delays in its stage two response and considered its compensation policy. It offered £50 compensation to the resident.

Assessment and findings

The resident’s request to have her tenancy changed so she can be rehoused via a mutual exchange or house swap.

24. With regards to the resident’s complaint about the landlord’s position in not changing or amending her tenancy, the landlord explained that it was unable to change the resident’s tenancy agreement from an assured shorthold intermediate market rent tenancy to an assured tenancy. It explained this was a legal matter and the tenancies differed, granting holders with different rights. It further explained an intermediate rent tenancy was a scheme that offers residents the opportunity to rent a home that is being re-let at less than the market rate. This was designed to give residents a chance to use the savings made on the subsidised rent to save for a deposit to purchase a home within five years. Therefore it was unable to offer the resident an assured tenancy. An intermediate rent tenancy meant that the resident could not sign up for mutual exchanges or house swap and therefore the landlord signposted her to her local authority.
25. We have reviewed the resident’s assured shorthold tenancy agreement and it does not make allow flexibility to amend the tenancy types and terms and conditions of the agreement. Whilst the reason for the resident’s request to amend her tenancy type was understandable, her tenancy agreement was a legally binding contractual agreement between herself and the landlord and could not simply be changed in this way. Different properties in a landlord’s housing stock may be let using different types of tenancy agreements, in line with the landlord’s own Tenancy Policy and any funding conditions. In this case, the landlord had let the property using an intermediate market rent tenancy agreement and it was entitled to do this and not to later vary or amend the tenancy agreement. Therefore there was no service failure by the landlord not agreeing to change the resident’s tenancy type. The landlord appropriately provided the resident with information should she wish to apply to be rehoused.

The landlord’s handling of the resident’s reports of Anti-Social Behaviour

26. A landlord has two main duties when anti-social behaviour is reported. The first is to undertake a proportionate investigation to establish the nature and extent of the anti-social behaviour. The second is to weigh the balance of the evidence, and the respective parties’ rights to enjoy their home and decide what action it should take. The Ombudsman’s role is to determine if the landlord carried out a proportionate investigation and whether the actions it took were within its powers.
27. The ASB Policing and Crime Act 2014 lists a full range of tools and powers available for a landlord to use in cases of ASB. The landlord’s ASB policy explains the methods used 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.
28. Section 4.12 of the ASB policy states the landlord will agree an action plan with the complainant and any keep them informed of the actions it takes. It will contact them when it closes a case, giving its reasons for doing so. Section 4.15 of the ASB policy states it will close a case after investigation and appropriate action is taken and where:
    1. It is successfully resolved.
    2. There are no further reports for a period of 6 weeks (unless is has begun legal action or is gathering further evidence) or earlier if agreed with the complainant.
    3. Or where no further action can be taken.
29. The resident expressed concern over the landlord’s handling of the ASB reports. She stated that, if the landlord was following its policy, it should have arranged a trigger meeting some time ago. She expressed concern that she was the one who had to request the community trigger meeting.
30. We recognise the impact the ongoing ASB has had on the resident and in such circumstances, we expect that landlords are doing everything they can to resolve the issues. Its important to note that, while there are a range of tools and methods available to the landlord to use when trying to resolve ASB, it is their discretion as to which tool they use depending on the circumstances and what is proportionate to the issues being reported. The methods used to resolve ASB are on a case by case basis. Whilst we recognise the resident’s disappointment with the landlord not arranging a trigger meeting sooner, we find the landlord took appropriate action by using other tools at the time.
31. With that in mind we can see that when the resident requested the community trigger meeting, the landlord was proactive in attending the meeting and conducted discussions. Section 4.16 of the ASB policy states, ‘We will provide support and advice to victims and witnesses of ASB and refer them to external agencies where appropriate. We will co-operate fully with the Community Trigger process to help resolve cases of ASB’. In this instance we can see the landlord was co-operative with other members involved in this meeting, and the Ombudsman considers that its actions were acceptable.
32. Following the resident’s report of ASB, we can see the landlord was proactive in attempting to resolve the matter. The landlord’s actions in discussing the matter with both parties, issue a warning letter and a behavioural agreement to the alleged perpetrator was proportionate. We can see the landlord also followed up with visits, communicated on how best to resolve the issues, and offered an audio device in an effort to obtain evidence of the noise disturbances. We recognise in such circumstances it is not always easy to capture evidence, however, consider that the landlord’s actions were proportionate to the reports being made.
33. The resident provided us with a court case judgement concerning an ASB case, she was not involved in this judgement which concerned the landlord and another separate resident. Taking this into consideration she expressed the landlord should have taken further action when dealing with the neighbour. Whilst we acknowledge this, based on the information available to it, the landlord’s actions were proportionate. It would have to issue a warning first before considering any further action in relation to a breach of tenancy. It is important to note that the circumstances of every case are different, and therefore it is at the landlord’s discretion to reach a balanced decision based on evidence available and the likelihood of success in any legal action, should it wish to proceed with legal action.
34. The Ombudsman recognises that the resident experienced distress as a result of the ongoing ASB, which the landlord also acknowledged. However, the landlord had taken reasonable steps to investigate the resident’s reports, has appropriately advised where possible what steps it had taken, and has advised that it will continue to monitor the issue.

The landlord’s complaint handling

35. Section 5 of the Housing Ombudsman’s complaint handling code sets out what is expected of landlords when responding to residents’ complaints. It explains that a two-stage complaint procedure is ideal. In this instance the landlord has two complaint stages and provided the resident with two formal responses.
36. The landlord’s complaints policy states it aims to provide a full response within 20 working days. If this is not done without an update to the customer about the deadline, the complaint will be escalated to stage two. From the date of escalation it will then aim to provide a response within 20 working days.
37. In this instance, the resident states she was initially denied a stage one complaint which resulted in her contacting this service on 6 September 2021. We have reviewed the available information and can see that the landlord wrote to the resident on 6 September 2021 and refused escalating her complaint to stage one as it found there was no service failure.
38. Following our communication to the landlord on 28 September 2021, it acknowledged the resident’s complaint. Subsequently it issued its stage one response on 22 October 2021, which was in line with the expected timeframe.
39. The resident informed the landlord she was unhappy with its stage one response on 25 October 2021. However, it did not provide her with a stage two response within the expected timeframe – it provided this on 22 December 2021.
40. In its stage two response the landlord took into consideration the delays in providing the resident with a stage two response and compensated her £50. However, it did not consider its original refusal to register the resident’s complaint.
41. The landlord’s compensation policy states it may pay compensation where:
    1. It has failed to deliver a service to the advertised standard.
    2. In recognition of the time and trouble taken by the resident to make their complaint.
    3. In recognition of distress and inconvenience experienced by the resident.
42. In this instance the resident had been affected by all three aspects above. Therefore, it was appropriate for the landlord to consider compensation. Whilst we recognise the delay caused further inconvenience to the resident and resulted in a delay of her being able to progress her complaint outside of the landlord’s internal complaints procedure, we find the amount of compensation offered for the stage two response delay to be reasonable.
43. However the landlord did not acknowledge its service failure in refusing to allow the resident to initially log her complaint. The landlord noted the resident’s concerns as an expression of dissatisfaction which was an informal stage in its complaints procedure.
44. Section 4.11 of the Complaints Handling Code states, ‘Landlords should not unreasonably refuse to escalate a complaint through all stages of the complaints procedure and must have clear and valid reasons for taking that course of action’.
45. With this in mind the Ombudsman finds there was service failure by the landlord in not accepting the resident’s complaint. The landlord’s actions resulted in delays for the resident, and she had to seek this service’s assistance and was inconvenienced. Therefore, we are ordering the landlord to compensate the resident a further £100 in recognition of this.

Determination (decision)

46. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s request to have her tenancy changed so she could be rehoused via a mutual exchange or house swap.
47. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s reports of ASB.
48. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s complaint handling.

Reasons

49. There was no service failure in the landlord not agreeing to change the resident’s tenancy agreement. It considered her concerns and explained its position to her appropriately.
50. The landlord appropriately addressed the resident’s reports of ASB. It used several methods and tools available, and co-operated within the community trigger meeting to resolve the ongoing issues with the neighbour.
51. Whilst the compensation for the delay to the stage two response was fair, the landlord’s actions in declining the resident’s stage one complaint was against good complaint handling practices. All residents should be given an opportunity to have their complaints considered.

Orders and recommendations

Order

52. The landlord to pay the resident £150 compensation for delay in its stage two complaint response and refusal to accept the resident’s stage one complaint. The amount includes the landlord’s initial offer of £50. This should be paid within four weeks of the date of this letter.

Recommendation

53. If there are any live ASB reports, the landlord should review these and provide the resident with an update within four weeks of the date of this letter.