PHA Homes (202110314)

REPORT

COMPLAINT 202110314

PHA Homes

13 June 2024

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 response to the resident’s concerns about:
1. ASB;
2. a TV aerial;
3. its request for the resident to remove CCTV;
4. its staff’s communication.

Background

The resident has been an assured tenant at the property of the landlord since December 2011. The landlord is a registered provider of social housing. The property is a semi-detached house. In February 2021, the resident notified the landlord that he suffered from mental health issues.
The Ombudsman notes that the resident has also referred complaints relating to repair issues, discrimination, and communication concerns to this service. These are being investigated separately (complaint reference numbers 202305666, 202325311, 202333892, 20235041, and 202335047).
It is not disputed that there is a TV aerial in the resident’s loft, which serves several other properties. This was discovered in or around 2017. At this time, the parties entered into an agreement where the landlord would make regular payments to the resident to reimburse him for any additional electricity costs associated with the TV aerial.
Throughout the period of the complaint, the landlord has advised that the resident sent a high volume of correspondence. This sometimes amounted to hundreds of emails a month. This report has not included every instance of correspondence between the parties.
Throughout the period of his tenancy, the resident has reported concerns about ongoing ASB. The ASB included loud noise late at night from his neighbour.
The resident continued to report concerns about ASB in January 2021, including that the neighbour was breaching the COVID-19 social distancing rules in place at that time. The landlord advised that it was unable to conduct visits due to these rules but that it would contact the neighbour by telephone to remind them of their tenancy agreement responsibilities. It also suggested that the resident report the rule breaches to the police.
In February 2021, the landlord explained the need for evidence in order to take action and encouraged the resident to keep diary sheets of any ASB. Given the resident’s reports about how the noise was impacting his health, it also enquired if he needed any assistance with a referral to a GP. It also opened a stage one complaint to respond to his concerns.
The landlord provided a stage one response on 5 February 2021, which included the following:
1. It reiterated its advice about reporting breaches of COVID-19 guidelines to the police.
2. It also reiterated that it was unable to visit but that it had contacted the neighbour and had written warning letters.
3. It reiterated its explanation about its ability to take enforcement action and repeated the need for diary sheets.
4. It also noted that the resident had the option to refer the noise to the local authority’s environmental health team (EH).
5. It reiterated its offers of support with any health referrals.
On 10 March 2021, the landlord noted that it had not received any further reports of ASB or diary sheets and so advised that it would close its ASB case. The resident subsequently made further reports and requested that he be rehoused. The landlord then provided information about his options to move, including mutual exchange or joining the housing register.
Given the resident’s ongoing expressions of dissatisfaction, the landlord escalated the resident’s complaint to stage two on 31 March 2021, and provided a stage two response on 1 April 2021 (although dated 1 April 2020), which included the following:
1. The landlord provided a detailed explanation of its enforcement powers regarding ASB. It explained that it required a high level of evidence, such as police reports, in order to take action through the courts. It also noted how it would attempt to solve ASB without enforcement action using methods such as mediation.
2. It noted that, in this case, there had been no police action. It also offered mediation; however, it is not evident that this option was pursued by the resident.
3. It noted the detrimental effect the issues were having on the resident and enquired as to what support it could offer.
On 5 April 2021, the resident advised that he wished to withdraw his complaint as he felt the process was detrimental to his health. The landlord followed up by reiterating its offer of a referral for relevant support.
In July 2021, the resident reported further concerns about noise and possible drug use. The landlord subsequently made enquiries with the police to determine if they had taken any action. The police confirmed they had no open cases. On 20 August 2021, the landlord also sought to open a case with EH on the resident’s behalf and enquired about them installing sound monitoring equipment.
It is evident that the landlord opened a new formal complaint around this time. It subsequently provided a stage one response on 23 August 2021. It reiterated its approach to ASB and the need for evidence. It also noted that it had made enquiries with the police and that EH had advised that evidence was required for them to take action. It therefore encouraged the resident to keep diary sheets of any incidents.
On the same date, the landlord sent a separate communication regarding the high volume of communication received from the resident. It noted that it had received over 330 emails over a few days, which was impacting its ability to provide its service. It encouraged him to continue to provide evidence but requested that he not send the same videos or emails to multiple members of staff.
The landlord continued to regularly pursue action from EH throughout 2021 and 2022. EH advised that it needed to liaise with the resident directly but that it was experiencing a significant backlog and may take some time. The landlord kept the resident updated about this and reiterated the need to keep collecting evidence for EH. The resident raised concerns about the formatting of the diary sheets. The landlord subsequently offered to reformat them. However, the resident advised that he would continue with the current format. Throughout this time, the landlord also continued to issue warning letters to the neighbour.
In or around January 2022, the neighbour reported concerns that the resident had a CCTV camera in his kitchen window which was recording the neighbour’s home. The landlord has provided a photo which it considers depicts this camera. The Ombudsman notes, however, that this service cannot be certain when this photo was taken or that the photo is of the resident’s property.
The neighbour subsequently made enquiries with the Information Commissioner’s Office (ICO), who recommended that they report it to the police. The neighbour subsequently requested that the landlord report the issue to the police on their behalf, which the landlord then did.
On 17 January 2022, the resident raised a formal complaint about contact from the landlord regarding the evidence he was providing. He noted that he was unhappy with the tone of the email. He also noted that the landlord’s policy required him to provide evidence, so he shouldn’t have been told not to send it.
The landlord sent a letter to the resident regarding the CCTV on 4 February 2022. It provided the resident with guidelines for domestic CCTV use so the resident could ensure it was compliant with data protection requirements. It also noted that if the camera was fixed, the resident required permission, but that if it was not fixed, he did not require permission. It further noted that the issue had been referred to the police as per ICO guidance. It is not evident that the police took any further action.
On 8 February 2022, the resident disputed that he had a CCTV camera and advised that the recordings he had submitted as evidence had been from his mobile phone. He also expressed concern that the landlord had reported him to the police.
The landlord provided a stage three complaint response on 9 February 2022. The response included the following:
1. The landlord noted the resident’s concerns about the tone of its contact and apologised for any distress this had caused. It advised that its intentions had been to explain its approach to ASB to the resident and set out what evidence it required from him.
2. It reiterated the high level of evidence needed to take enforcement action.
3. It also explained that it had discussed the matter with the police, who were unable to provide any supporting evidence.
4. It further encouraged the resident to liaise with EH about any investigation they may pursue.
5. It noted that it had conducted a survey in the area but had not received any similar reports of ASB from other neighbours.
6. It also advised that it had discussed the issue with its legal advisors, who had confirmed that there was not presently sufficient evidence to pursue any kind of enforcement action.
7. Finally, it reiterated that mediation remained an option.
8. Regarding communication, it repeated that the high volume of communication impacted the ability of its staff to effectively provide their service.
The resident continued to reiterate his dissatisfaction with the landlord’s position regarding ASB. The landlord replied on 16 February 2022. It explained that, given that there was no new evidence, it was unable to take any further action at this time. It advised that, should new evidence become available, it would reconsider further action. It also reiterated its offer of mediation.
On 16 February 2022, the resident requested information about the electricity usage in relation to the TV aerial.
On 4 March 2022, the landlord provided a formal response regarding the TV aerial. This response was also noted as a “stage three” response. The response included the following:
1. The landlord noted that, following the resident’s request for information about the electricity charges, it had provided a detailed breakdown on 28 February 2022.
2. It advised that it had discovered that the calculations for the payments to the resident had been too high, but that it was not seeking any reimbursement.
3. It noted that the resident was no longer happy with the arrangement. It advised that it was seeking to install separate TV aerials for the other properties, but that this required planning permission. It advised it would keep the resident updated about the progress of this.
4. It offered the resident a further £20 as a goodwill gesture to cover any ongoing costs while it arranged for the new TV aerials.
On 28 March 2022, the resident advised that he was dissatisfied with the landlord’s offer. He also reiterated his dissatisfaction with the landlord’s accusation about a CCTV camera. The landlord replied on 29 March 2022 and advised that it had already addressed the issues raised. The resident disputed this and requested a formal response. He repeated this request several times, and on 22 April 2022, the landlord confirmed it would provide a formal response by 4 May 2022.
The landlord did not provide a formal response on this date, which led the resident to chase an update on several more occasions. It is evident that the landlord sent a warning to the resident on 13 May 2022, about the high volume of contact. On 17 May 2022, the landlord advised that, due to the ongoing volume of contact, it was seeking legal action against the resident. It advised that it would not acknowledge any further communications from the resident while this was ongoing.
It is not evident that the landlord ever provided a formal response in relation to the CCTV accusations or a further response regarding the TV aerial, despite the resident continuing to express his dissatisfaction about these issues well into 2023. Based on the communications between the landlord and EH, EH determined in or around May 2023 that the issues reported were minor and that it would close its case.
As noted above, following this period, the resident raised further concerns about repair issues, discrimination, and ongoing communication, which are not the subject of this investigation.

Assessment and findings

Scope of investigation

Throughout the period of the complaint, the resident has raised concerns about how the issues he reported and the landlord’s subsequent service delivery may have impacted his health.
The Ombudsman is unable to make a determination that the actions or omissions of a landlord have had a causal impact on a person’s health. Such a determination is more appropriate through an insurance claim or by a court. Should the resident wish to pursue a claim relating to the impact on his health, he has the option to seek legal advice.
The Ombudsman has, however, taken into account any general distress and inconvenience that the landlord’s service delivery may have caused.

Policies and procedures

The landlord operates an ASB policy. The policy notes that the landlord will make use of warning letters to tackle ASB and may request diary sheets as evidence. It may also offer mediation. It further notes that any enforcement action must be proportionate. The landlord will also work with other agencies, such as the police and EH, to solve ASB.
The landlord operates a domestic CCTV policy. The policy notes that if a neighbour or member of the public raises a concern about the use of CCTV, the landlord will raise this concern with the resident and provide them with guidance. It will also signpost the concerned party to raise their concerns with the ICO and police.
At the time of the complaint, the landlord operated a three stage complaints policy. The Ombudsman understands that since the period of the complaint, the landlord has adopted a two stage complaints policy in line with this service’s Complaints Handling Code (the Code).

ASB

A landlord has two main duties when ASB is reported. The first is to undertake a proportionate investigation to establish the nature and extent of the ASB. The second is to weigh in balance 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.
Additionally, matters where there is a history of ASB over an extended period, such as this, are often the most challenging for a landlord to manage. In practice, the options available to a landlord to resolve a case may not extend to the resident’s preferred outcome, and it therefore becomes difficult to manage a resident’s expectations. In such instances, closely following the ASB policy ensures that a landlord is acting fairly, that its response is proportionate to the issues being raised, and that its approach is consistent, even if it does not lead to the outcome requested by the resident.
The Ombudsman does not dispute the resident’s reports or that the resident was negatively impacted by the issues he was reporting. However, the Ombudsman also understands that for a court to take action and remove someone from their home, a high level of evidence is required. This can include evidence from the police. It also would not be proportionate for the landlord to seek to take any action on reports alone.
In this case, following the resident’s reports, it is clear that the landlord went to considerable effort to help the resident understand what evidence it required and what action it could take. It is evident that the resident was seeking enforcement action, and so the landlord provided very clear information about the standard of evidence required for such action. It repeated this information frequently across its responses and provided examples of the type of evidence required, such as police action.
As per its policy, it also sought to involve third parties to help address the resident’s reports. Given that the police are able to take action regarding criminal behaviour, it appropriately signposted the resident to report such behaviour as the breach of COVID-19 rules. The landlord also frequently liaised with the police to determine if any action had been taken. It is evident that, on one occasion, the police investigated reports of a verbal altercation but decided not to take further action due to a lack of evidence. Given that there was no police evidence to support enforcement action, it was reasonable that the landlord pursued other methods to resolve the ASB.
In addition to its contact with the police, the landlord also appropriately signposted the resident to EH, who have the power to make a finding of statutory noise nuisance. Such a finding would also act as useful evidence to support action from the landlord. In addition to signposting the resident to EH, the landlord reached out to EH itself to open a case. It is unfortunate that EH were significantly backlogged, resulting in a delay to them opening an investigation. It was also the case that EH preferred to deal with the resident directly, and so the landlord was limited in how far it could progress matters. Nevertheless, it appropriately continued to chase updates from EH throughout the period of the complaint and kept the resident informed. It also appropriately encouraged the resident to provide evidence to EH to support their investigation. Given that EH ultimately chose to close their case, it was again reasonable that the landlord pursued other methods to resolve the ASB.
In addition to seeking evidence from third parties, the landlord encouraged the resident to keep diary sheets to demonstrate the frequency of incidents. It provided diary sheets on a number of occasions and was proactive in chasing up their return. It also appropriately sought to ensure the resident was able to complete them by offering both digital and paper copies. It also offered to reformat them following the resident’s concerns about their formatting. This demonstrated a genuine desire to help resolve the issue and to accommodate the resident’s needs.
The landlord also conducted a survey in the neighbourhood to determine if any other neighbours were experiencing issues with ASB. While this resulted in no corroborating evidence, it was an appropriate attempt to help support the resident’s reports. It also appropriately sought legal advice to ensure its position on enforcement action was correct, which it relayed to the resident.
In addition to seeking further evidence, the landlord also took other proportionate action to resolve the ASB which was in line with its policy. Throughout the period of the complaint, it has sent warning letters to the neighbour explaining the allegations of noise and reminding them of their tenancy obligations. It also sent letters about dogs barking when this was reported. It is evident that it also visited the neighbour in person to discuss the concerns. On the occasions it was prevented from doing so due to COVID-19 restrictions, it took other reasonable action, such as telephoning the neighbour.
At every step of its response, the landlord also encouraged mediation as a method to resolve the ASB. While the resident did not wish to pursue this, it was reasonable that it reiterated the option in case the resident changed his mind. This was in line with its policy and was a further proportionate attempt to resolve the ASB.
While there were concerns raised about the submission of video evidence, which has been considered further below, the landlord continued to encourage the resident to submit evidence throughout the period of the complaint. Following its stage three response, the landlord also continued to note the resident’s ongoing reports, and it is evident that it has continued to send warning letters to the neighbour where necessary.
The Ombudsman notes that following an investigation, it can be reasonable for a landlord not to take further action where the ongoing reports remain the same. Following its stage three response, it was reasonable for the landlord to measure the resident’s expectations that, in the absence of new evidence, it would be unable to take any further action. It was also appropriate that it reassured the resident that it would take action if new evidence became available.
In addition to its action regarding ASB, the landlord also demonstrated a commitment to offering support to the resident throughout the period of the complaint. It continually recognised the impact the issues were having on the resident, and it repeatedly offered referrals to support agencies such as his GP. It also appropriately sought to assist the resident with the options for rehousing, should he have wished to pursue this.
The Ombudsman understands that the outcomes of the landlord’s investigations were not in line with what the resident expected. However, the landlord made reasonable attempts to gather evidence to support enforcement action, including liaising with third parties. It also took reasonable steps, in line with its policy, to attempt to resolve the ASB without enforcement action. The landlord appropriately communicated its position and attempted to measure the resident’s expectations throughout the period of the complaint. It also appropriately offered support throughout. A finding of no maladministration has therefore been made in relation to this part of the complaint. A recommendation has been made for the landlord to reiterate its offer of mediation, should the resident wish to pursue this option.

TV aerial

It is not disputed that, in or around 2017, the parties entered into an agreement for the landlord to make regular payments towards any electricity costs associated with a communal TV aerial being housed in the resident’s loft.
It is evident that in early 2022, the resident expressed dissatisfaction with the TV aerial remaining in his property. Following the resident’s requests for information about the calculations for the payments on 16 February 2022, the landlord responded within a reasonable timeframe and provided the calculations on 28 February 2022.
In its formal complaint response, the landlord explained that it considered there to have been an overpayment due to errors it had made with its calculations. Given that this was the landlord’s error, it was reasonable that it did not seek reimbursement of the overpayments.
Given that the resident was no longer happy to house the TV aerial, it was also appropriate that the landlord took proactive steps in making alternative arrangements. Given that planning permission was required, it was reasonable that it was not able to immediately install alternative TV aerials. While it was appropriate that the landlord committed to providing the resident with updates about this process, it would have been helpful for it to have committed to a timeframe for an update to avoid him having to expend time and energy chasing updates.
It was also appropriate that the landlord recognised that there was an ongoing cost to the resident while the new arrangements were put in place. It was therefore reasonable that it offered compensation to cover any associated costs.
Given the resident’s concerns about this issue, it was reasonable for the landlord to provide a formal complaint response. However, it appears that because the resident’s other complaints were at stage three at this time, the landlord chose to address this concern at stage three as well. It is not evident that this issue was ever considered at stage one or stage two of the landlord’s complaints process. This was not in line with the landlord’s complaints policy or with the Code.
The resident subsequently sought to escalate this element of the complaint. He expressed concern that the compensation offered would not cover costs potentially incurred prior to the arrangement beginning in 2017. While this may be the case, the Ombudsman would not expect the landlord to consider a complaint for an issue which could have been raised in 2017 when it was discovered. Nevertheless, the landlord failed to provide its position on this point. Instead, the landlord advised that it had already provided its position and would not respond further.
While the landlord’s formal response noted the resident had the option to refer the complaint to this service, the purpose of multiple stages in a complaint procedure is for the resident to be able to comment on a landlord’s response and for it to revisit its position based on those comments. The landlord’s failure to provide a further position or any other updates on the new TV aerials was a missed opportunity to keep the resident informed and was not in line with its policy. This would have caused the resident distress and inconvenience.
In summary, while the landlord appropriately initially provided its position and took reasonable steps to address the resident’s concerns, its failure to provide further formal responses meant that the resident was denied the opportunity to have the issue reinvestigated as required by the landlord’s policy. This amounted to maladministration in the circumstances.
To reflect the distress and inconvenience caused to the resident, an order for £100 compensation has been made. The landlord is also ordered to provide an update on the installation of new TV aerials, should this work remain outstanding. The landlord must also reiterate its offer of £20 compensation, should this not yet have been accepted.

CCTV

As noted above, the landlord requested evidence relating to the ASB the resident had reported. Part of the evidence provided by the resident came in the form of video recordings. The resident has advised that these recordings were made using the resident’s mobile phone.
In January 2022, the neighbour reported to the landlord that they suspected the resident had CCTV in his window, which was facing the neighbour’s property. The landlord has provided this service with a photo depicting an upstairs window. It is not clear if this photo was taken by the landlord or by the neighbour. The Ombudsman is unable to determine when this photo was taken or whether the photo is of the resident’s property. It is also not clear whether there is a camera visible in the photo, as it is not sufficiently detailed. It is not evident that the landlord had any other evidence that the resident had a camera in his window. The Ombudsman, therefore, cannot conclude that the resident had a camera in his window.
Nevertheless, the landlord’s policy relating to CCTV states that it will signpost anyone concerned about possible CCTV to the ICO and to the police. The landlord has advised that the neighbour contacted the ICO, who in turn advised them to report their concerns to the police. Given that the neighbour requested for the landlord to do this on their behalf, it was reasonable that the landlord did so. It is not evident that the landlord made any assertions that the resident conclusively had CCTV installed when it made its report to the police. It is also not evident that the police subsequently took any action.
The landlord’s policy also states that it will discuss such concerns with the resident. Following the neighbour’s report, the landlord appropriately reached out to the resident. It did not assert that the resident definitely did have CCTV. Instead, it provided information about when the resident should request permission and when he would not have to. It also appropriately provided information about ensuring any CCTV was compliant with relevant regulations. These actions were reasonable and in line with its policy.
Following its letter, the resident sought to raise this concern as a formal complaint. The landlord in turn advised on 17 May 2022, that it had already addressed his concerns. However, it is not evident that this complaint has been formally responded to at any point. Despite the resident disputing that the complaint had been addressed and his multiple further requests for updates, the landlord did not acknowledge the formal complaint until 22 April 2022.
In its complaint acknowledgement, the landlord committed to providing a formal response by 4 May 2022. While the Ombudsman understands that the parties were in dispute about the level of the resident’s communication at this time, given that the landlord had made a commitment to provide a complaint response, the Ombudsman would expect it to meet that commitment. In the event that it was unable to do so, the Ombudsman would expect the landlord to explain this prior to the expiry of the due date for the response. The landlord failed to do this, which led to the resident expending time and effort chasing a complaint response.
In summary, it was reasonable for the landlord to follow its policy and report the neighbour’s concerns to the ICO and to the police. It was also appropriate for it to discuss the concerns with the resident and provide relevant information about the use of CCTV. It made no conclusions that the resident definitely had CCTV, and instead it was seeking to be informative. However, regardless of whether the landlord was seeking legal action to manage communication, any methods of communication management should not deny the resident access to the landlord’s internal complaints procedure, especially where the landlord has already accepted a complaint.
While the landlord, in its communications with this service, has acknowledged there were complaint handling failures in this case, its failure to formally respond to the resident nevertheless caused him distress and inconvenience and denied him the opportunity to have his concerns resolved at the earliest opportunity. The landlord’s actions were not in line with its complaints policy and amounted to maladministration in the circumstances. An order for £250 has been made to reflect the distress and inconvenience caused to the resident, along with his time and trouble in chasing responses. This order is in line with this service’s remedies guidance for instances of maladministration which do not have a permanent impact.

Communication

As noted above, as part of its ASB investigation, the landlord requested evidence from the resident. The landlord has advised that when submitting this evidence, the resident sent the same evidence to multiple members of staff. The landlord subsequently explained that this was causing it to expend unnecessary time reviewing the same evidence. It therefore requested that the resident provide evidence to a single address only. It is evident that the resident took this to mean that the landlord was instructing him not to provide evidence, contrary to its ASB policy; however, the Ombudsman notes that the landlord’s communications appropriately advised that he could continue to provide the evidence to a single email address.
The resident subsequently raised a formal complaint about the tone of the landlord’s communications about this issue. The landlord addressed this concern in its stage three response in February 2022. In its response, the landlord explained that the purpose of its communications had been to be informative. It also reiterated the impact that excessive repeated communications were having on its ability to investigate the resident’s concerns.
This response was appropriate as it recognised the resident’s concerns, apologised for any unintended distress, and explained the landlord’s intentions. However, as with the above complaints, this response was given at stage three without having provided any prior formal complaint responses. This concern was specifically raised as a separate complaint by the resident, and so it should have progressed through the landlord’s full complaints procedure. The Ombudsman notes that the landlord has since investigated ongoing communication issues at both stage one and two; however, its failure to correctly handle this concern when raised at this time caused the resident to have to expend time and effort chasing further responses. There was therefore service failure. An order for £50 has been made to reflect the distress and inconvenience caused to the resident.

Determination (decision)

In accordance with paragraph 52 of the Scheme, there was no maladministration by the landlord in respect of the complaints regarding its response to the resident’s reports concerning ASB.
In accordance with paragraph 52 of the Scheme, there was maladministration by the landlord in respect of the complaints regarding its response to the resident’s reports concerning:
1. a TV aerial;
2. its request for the resident to remove CCTV.
In accordance with paragraph 52 of the Scheme, there was service failure by the landlord in respect of the complaints regarding its response to the resident’s reports concerning its staff’s communication.

Orders and recommendations

Orders

The Ombudsman orders the landlord to pay compensation of £400, comprising:
1. £100 for any distress and inconvenience caused to the resident by its poor complaints handling relating to the TV aerial;
2. £250 for any distress and inconvenience caused to the resident by its poor complaints handling relating to the CCTV;
3. £50 for any distress and inconvenience caused to the resident by its poor complaints handling relating to its staff’s communication.
This amount must be paid within four weeks of the date of this determination.
Within four weeks of the date of this determination, the landlord is to:
1. Provide an update regarding the installation of new TV aerials, should this remain outstanding.
2. Reiterate its offer of £20 towards the ongoing costs relating to the TV aerial usage, should this not yet have been accepted.

Recommendations

The landlord is to reiterate its offer of mediation regarding any ongoing ASB.