Progress Housing Association Limited (202105214)

REPORT

COMPLAINT 202105214

Progress Housing Association Limited

26 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 the landlord’s handling of the resident’s anti-social behaviour (“ASB”) reports.
2. The Ombudsman has also considered the landlord’s complaint handling.

Background and summary of events

Background

3. The resident was an assured tenant of the landlord, a housing association. The property is a ground floor flat. The resident states he has vulnerabilities which the landlord confirms it has records of.
4. Under the tenancy agreement, tenants should not cause ASB; cooperate with the landlord to keep communal areas free from obstruction; not “put up a greenhouse, garden shed or other structure without written permission;” and not keep animals such as pets without written permission.
5. The landlord’s ASB policy considers threatening language, communal area misuse, and problems caused by pets such as persistent barking to fall under ASB. When ASB is reported, it says it will assess whether the report requires a response in 24 working hours or five working days; investigate and provide an action plan to the complainant. The landlord’s approach to ASB aims to prevent incidents occurring; work with partner agencies; use available tools; and take enforcement action where appropriate.
6. The landlord operates a three stage complaints procedure, aiming to respond within 10 working days at stage one and within 10 working days at stage two. Should the complainant still not be satisfied, a stage three response will be issued within 10 working days of request.

Summary of events

7. The resident says that he first experienced issues in March 2020, however this investigation has seen no evidence for this. The information provided advises that on 30 and 31 July 2020, the resident contacted the landlord to report that his neighbour had fenced off a section of the communal garden and attached a wind breaker to the new fence structure, which flapped and caused a disturbance at night. He requested escalation of the issue and a call back the same day, threatening to “rip the windbreak down” and to commit violence against his neighbour. Following this, a case was opened for the landlord’s ASB team to investigate.
8. The threat was referred to the police and records indicate they visited the resident, on 3 August 2020. The resident was informed the police would attend if he made threats, and he apologised and explained some personal circumstances had led to his emotions running high. The police noted that he complained about the fence and the windbreaker, and they spoke to his neighbour who said they put up the fence to protect their three dogs from the resident’s dog. The same day, the landlord noted unsuccessful attempts to visit and call the resident.
9. On 5 August 2020, the resident contacted the landlord via webchat. He supplied photos of the fence and said this had forced him to relocate items to prevent damage. He said he understood the case had been categorised as a ‘neighbourhood dispute,’ but believed it merited escalation as he had been informed sectioning off of the communal area was not allowed. He explained he was disabled and that the issue had affected his conditions and mental health.
10. The same day, the landlord spoke to the resident and noted he was not getting any sleep, due to the windbreak flapping which then caused his dog to bark. It also noted the police’s recent visit and that he was affected by personal and health issues. The resident was informed that his neighbour would be visited the following week, and he was offered a referral to a finance support team, which later contacted him; discussed his circumstances; sought to ensure he was in receipt of appropriate financial assistance; and discussed other available support.
11. On 12 August 2020, the landlord visited the resident and his neighbour. The neighbour detailed an incident where the resident’s dog had attacked theirs, and said they had put up the fence for prevention of further incidents and social distancing. The neighbour agreed to remove the windbreak reportedly keeping the resident awake. The landlord advised the neighbour that it was likely they would not be allowed the fence, and informed the resident that the issue would be passed to relevant staff. The resident disputed the allegations about his dog, saying it was kept on a lead, and said his neighbour was not socially distancing.
12. In September 2020, there was correspondence between the resident, his MP, and the landlord. The resident detailed that his neighbour had ‘corraled’ a section of communal space, breached social distancing restrictions, and misrepresented their number of pets and an incident where his dog had been attacked by a previous tenant’s dog. The landlord responded that staff had been asked to visit, to gain a full picture of the issues and to check if there were any support needs it could assist with. It said breach of Covid-19 restrictions should be reported to the police and it would then take any action it could. It said it did not have records of the resident raising complaints against his neighbour or his neighbour making false complaints against him. It said it was aware a structure caused concern and aimed to work with him and his neighbour, who it was in contact with, to try and come up with a solution that suited them both.
13. In October 2020, there was further correspondence between the resident, his MP, and the landlord.
14. The resident reported that the landlord had not visited and he queried its need to do so. He said the issue had been detailed by phone, webchat and in a past visit, and he had been led to understand the fence was against the rules and his neighbour would be visited by an enforcement team and told to remove it. He was unhappy there were no records of complaints about his neighbour, as it was an ongoing concern he said he had initially complained about in March 2020. He said he was not being allowed to peacefully enjoy his home, and the landlord was ignoring its obligations towards health and safety and to him as a vulnerable, disabled tenant. He said he was considering making a compensation claim for the lack of support and enforcement and the effect on his health.
15. The landlord said that it would record correspondence it had received as a complaint and scheduled a visit for 21 October 2020, which the resident cancelled due to an appointment. The landlord attempted to reschedule this and explained a staff visit was important to discuss the concerns, but noted the resident said he did not want to be visited and just wanted his neighbour to be told to remove the fence.
16. The landlord visited the neighbour to discuss the fence. The neighbour made counter allegations and reported the resident had called the police, who had said they were unsure why they had attended as there was nothing to investigate. The landlord inspected the fence and noted that there were reasons to keep the fence; a seven foot space between the fence and a shed allowed easy access to all areas; it was not permanent; and the neighbour was willing to bring it in slightly.
17. On 28 October 2020, the landlord issued a stage one response, which said:
    1. It acknowledged and apologised that a visit was not arranged when a previous letter was sent out. It explained it had thought it would be helpful to talk about matters and staff had been asked to email to arrange a time to discuss issues, agree a way forward and identify any support needs.
    2. The fence had permission on the basis the coverage area was reduced by one foot, which would be kept under review. It apologised if there had been conflicting information about the matter.
    3. It would not be taking action about reports to the police about the neighbour’s gatherings. It requested further information about animal numbers in his neighbour’s house being misrepresented, and about his dog being attacked by a previous tenant’s dog.
    4. It apologised that it was still investigating dissatisfaction about a lack of records for complaints against his neighbour and false complaints against him, and said an update about these would be provided by 6 November 2020.
18. On 6 November 2020, the landlord issued a follow up stage one response, which said:
    1. It had received a report on 30 July 2020, and a call the following day, about a fence being erected in the communal area. It said this was investigated and permission had been given for it to remain if a windbreaker was removed.
    2. It had received a complaint on 16 September 2020 about a webchat, which also highlighted the neighbour’s fence and number of pets they were keeping. It said the complaint was responded to, and the reports about the neighbour were investigated, but no further action was taken.
    3. It noted the resident’s neighbour had alleged his dog had attacked their dog, which on investigation there had been no evidence to substantiate. It apologised this was not communicated to him.
    4. It invited the resident to provide details of further calls or issues that remained outstanding.
19. The resident responded the same day and restated a number of issues, including concerns about the fence permission. He said his shed was virtually inaccessible and he had been forced to obstruct his entrance with his mobility scooter. He said the landlord had overlooked the police reportedly saying their involvement had not been necessary. He said a web chat complaint was an independent matter, and a complaint regarding the animals related to dissatisfaction with the neighbour’s reported reasons for the fence, such as an alleged attack by his dog and shielding which was not taking place. He asked if the response was the final word on the matter, or if any alternative arrangements to allow a peaceful existence could be offered.
20. The landlord explained on 12 November 2020 that it had responded at stage one of its complaints procedure, and suggested escalation to the next stage. It asked the resident to confirm if he wanted this and his desired outcome. In January 2021, the resident’s MP wrote to the landlord, which responded that it was unclear how it could resolve the issues, and asked the resident to discuss matters by email or telephone or confirm its understanding of the complaint.
21. On 5 February 2021, after no clarification was received, the landlord issued a stage two response, which said:
    1. The fence did not cause obstruction or prevent tenants from entering their properties and it had given permission for it to remain. It apologised that the resident did not feel the issue had been dealt with in a timely manner, and confirmed this had been fed back to the relevant team.
    2. It was difficult to investigate points raised in MP correspondence and it would have liked to have discussed comments in relation to disputed accounts of an alleged dog attack; police querying necessity for a visit; and how it had made the resident feel, disregarded vulnerabilities and driven him to seek external support.
    3. It noted the resident reported an email on 6 November 2020 was ignored, and it highlighted that a response on 12 November 2020 had requested confirmation to progress the complaint. It also noted the resident expressed concern about the complaints process, and explained how this was aimed to be impartial and address any identified service failures.
22. On 15 February 2021, the resident’s MP asked the landlord to escalate the complaint, enclosing correspondence from him where:
    1. He stated dissatisfaction with the fence permission; reasons his neighbour gave for the fence; and a delay in the fence being re-sized.
    2. He complained the landlord had limited matters to the fence issue and had not addressed the cumulative effect of his complaints and unnecessary police action; a breakdown of relationships with neighbours; and the previous ASB history of his neighbour, who had volunteered that they had been moved due to disruptive behaviour. He said the landlord had done nothing to protect residents about this, and that his complaints had also related to his neighbour having three dogs and two cats, which had disrupted his dog and his enjoyment of the property, and had led to giving his dog away.
    3. He said the landlord had disregarded complaints, policies and his vulnerabilities, and its actions had driven him from his home as he had moved. He sought an apology, assurances about service improvements, and compensation related to distress caused and his relocation to a new property.
23. On 8 March 2021, the landlord issued a follow up stage two response, noting it had said it needed further information to address the complaint and that it now felt able to do this.
    1. It said that it was sorry the resident felt it had trivialised the complaint, had experienced sleep disruption, had been unwell as a result of issues and had felt the need to re-locate.
    2. It said it found no evidence that it had ignored complaints, vulnerabilities and its policies, and said it had attempted discussion of the complaint, offered support and responded to complaints and communications from his MP.
    3. It said the fence permission was addressed in previous responses and the reasons were between it and the neighbour; but it acknowledged permission was granted retrospectively and it took longer than it hoped for the fence to be re-sized. It noted that the windbreaker was removed and the fence was observed to be solid and not cause rattling or vibration.
    4. It said that the police was aware of reasons they were contacted; any appropriate action was up to them; and it could not comment on what they said.
    5. It said it was unable to comment on his neighbour having moved into their property due to disruptive behaviour, due to data protection, but advised that it had robust measures for new tenancies. It said the neighbour was noted to only have two dogs for which permission was granted, and no other complaints had been received about the pets. It also said it was unable to find any record of requests for mediation but it was happy to facilitate this if ever requested.
    6. It said it did not accept that its actions had led the resident to relocate or re-home his dog, and said that while it recognised these were difficult for him,  these were decisions he made.
    7. It concluded that the fence caused no loss of access or prevented use of the outside space; complaints had been responded to and appropriate apologies given; and there were no records of ASB reports in respect of the neighbour. It said it would not offer compensation but would reduce the four weeks’ notice normally required to terminate a tenancy, to one week, and would reimburse a credit on the account. It detailed how the complaint could be escalated.
24. The resident responded on 25 March 2021 and:
    1. He restated dissatisfaction with the fence permission, saying this had not included assessment or discussion of his needs, and the landlord’s actions had led to his relocation and giving away his dog.
    2. He said he was being blamed for a lack of information, when the landlord already had this or had not requested clarification for this in writing, and he disputed it had tried to engage with him on a number of occasions.
    3. He said there had been a lack of investigation about his neighbour’s pets, and that a lack of other reports about them was invalid.
    4. He said the landlord failed to accept that a windbreak was replaced by further windbreak material and items that rattled, for which photos were provided.
    5. He said he felt the police being contacted was harassment because of his complaints.
    6. He disagreed that the fence did not prevent access or use of the outside space, and that there had been no ASB. He said the landlord had not sought to understand his needs; suggested the fence structure was an obstruction because it affected the previous rights of way; and said it was antisocial to erect fencing without prior consent, generate noise and disrupt pets.
25. On 1 April 2021, the landlord issued its final response, which said it felt the issues had been fully addressed in its previous responses. It noted that as a goodwill gesture, the contractually required four weeks’ notice had been waived, and said it could see no reason to offer further compensation.
26. The resident has explained that he raised a number of reports regarding ASB with the landlord. The resident detailed that his concerns remained unaddressed which resulted in him believing it was necessary to leave the property. The resident does not feel that the landlord considered his wellbeing or disabilities. The resident also reports that he has received demands for unpaid rent, although the landlord had informed him it was prepared to overlook his notice period and close his tenancy, and although his rent was paid by a local authority.

Assessment and findings

The landlord’s handling of ASB reports

27. ASB case management is a crucial aspect of a landlord’s service delivery. Effective use of an ASB procedure enables the landlord to identify appropriate steps to resolve potential areas of conflict, improve landlord/tenant relationships and improve the experience of tenants residing in their homes. ASB cases are also often the most challenging for a landlord as, in practice, options available to a landlord or chosen by a landlord to resolve a case may not include a resident’s preferred outcome, and it can become difficult to manage expectations.
28. This Service understands the resident’s situation, recognises that the concerns he has reported have affected and caused distress to him, and understands he feels the landlord failed to properly address issues which impacted living in the property and his health. In cases relating to ASB, it is not the Ombudsman’s role to determine whether ASB occurred or who is responsible. It is also not within the Ombudsman’s authority or expertise to make a determination in the same way as the courts on matters such as tenancy breach; breach of the Equality Act; rent arrears; impact on health; and alleged liability, negligence and claimed compensation. However, the Ombudsman can assess how a landlord has dealt with the issues and reports it has received in the timeframe of a complaint, and assess whether the landlord has followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case – which this investigation goes on to do.
29. Following the resident’s reports, it was necessary for the landlord to respond to his concerns and to take action in accordance with its ASB policies, such as assess the report; contact the resident; discuss the case with his neighbour; and deal with reports in a fair and proportionate manner, considering its obligation as landlord to treat allegations from all of its customers in a consistent and evidence-led way.
30. In this case the landlord visited shortly after the resident’s reports and discussed the issue with him and his neighbour in August 2020. The landlord then confirmed that the neighbour agreed to remove a noisy windbreaker from the fence, and that the fence erection itself would be referred elsewhere for action. This demonstrates that the landlord responded to the initial report in a timely manner, detailed next steps and was attempting to work with both neighbours to try to resolve the issues the resident raised.
31. There was then delay after the landlord said in August 2020 that the neighbour’s erection of the fence would be referred to relevant staff, and a further visit to assess the fence did not take place until October 2020, after chasing from the resident and it was stated a visit would be arranged in September 2020. The resident was also pre-emptively informed that it was likely the neighbour would not be allowed the fence following referral to another department. While there was no definitive commitment that the fence would be removed, this did not manage the resident’s expectations effectively, and it is understandable that the delay in the visit and delay in implied removal of the fence may have led the resident to feel that the issue was not being progressed, monitored and resolved. The time it took for the landlord to confirm that the fence had permission to remain does not seem overly excessive however, particularly considering the issue occurred during the Covid-19 pandemic which will have impacted on the landlord’s staff and resources.
32. Following the resident’s complaint, the landlord considered and summarised actions it had taken about issues he had reported according to its records; set out its position about the fence; acknowledged and apologised for the delay in its visit and conflicting information about whether the fence would remain; and invited him to provide further information about issues it had not addressed.
33. This investigation understands that the resident says the landlord’s permission for the fence went against its policies and what he was informed previously. The tenancy agreement says that communal areas must be kept free from obstruction and structures should not be put up without written permission, so it is reasonable to expect the landlord to take seriously reports about these being breached. However, while residents may have their own interpretations, the landlord has ultimate discretion to decide what it considers an obstruction that areas must be kept free from; to decide if a structure requires removal; and to decide to what extent it enforces what it considers to be a tenancy breach. It also has discretion to make different decisions if this is within the scope of policies.
34. This investigation notes the resident disagreed with the permission for the fence and some of the reasons he was informed the neighbour gave for the fence. The evidence shows that the landlord’s decision was made based on the resident and his neighbour’s feedback and an assessment of the fence. The landlord considered multiple factors and there is no evidence that the reasons the resident disputed were the sole basis for the decision. The evidence therefore appears to show that overall, the landlord made the decision to permit the fence in a reasonable way and in line with what this Service would expect to see, based on conversations with the parties involved and first hand inspection of the fence.
35. This investigation would have liked to have seen further discussion between the landlord and the resident about some of his concerns, particularly how he felt the fence impacted his use of the communal area, his mobility scooter and access to his shed. However, the evidence shows the landlord did attempt further discussion to understand the resident’s concerns about the fence, and attempted to highlight the importance of a staff visit, which the resident responded to by requesting for the landlord’s policies to be enforced. While the resident’s focus on policies was understandable, the landlord’s stated aim to work with him and his neighbour about the issue reflects it had some discretion over the matter and that a landlord generally sees enforcement action as a last resort. This investigation can see that the landlord offered appropriate support for separate issues, and that its consideration of the resident’s vulnerabilities for the fence matter was limited by its lack of opportunity to further co-inspect the issue with the resident.
36. This investigation notes that the resident said lack of other reports about issues such as the pets was invalid. It is reasonable for the frequency of reports from other residents to be a factor in a landlord’s consideration of ASB, as these may provide valuable supporting evidence; show that issues are not isolated and affect other residents; and ensure that any action is fair and proportionate and not based on only a small number of reports. In this case, it is understandable that the landlord may have considered limited action in respect to the fence, pets and any other allegations against the neighbour, as this investigation sees limited evidence in the form of further, ongoing reports to reasonably merit more action than was taken. Similarly, this investigation notes that the resident advises that a noisy windbreaker was replaced by other items, but sees limited evidence for separate, ongoing reports that other items caused significant annoyance to prompt further consideration and action from the landlord.
37. This investigation notes that the resident says the police informed him that visits to him at the landlord’s request were unnecessary, and that he felt that this aspect was not adequately addressed. There are conflicting accounts about the police’s comments, however in respect to the visit at the landlord’s request, its records advise that a threat was made by the resident at one point. The landlord’s ASB policy confirms it works with partner agencies such as the police, and it appears reasonable for the landlord to refer any threat to the police that it feels is necessary. The landlord will not be the best judge of any threat, and the police making their own conclusion on this is normal and does not mean that the referral itself was wrong.
38. This investigation understands that the resident reports that the cumulative impact of ASB he experienced led to him moving from his home and re-homing his dog, and this Service understands that this will have been very distressing. As detailed at paragraph 28, the main consideration for this investigation is whether the landlord considered issues and responded reasonably.
39. Overall, in the Ombudsman’s opinion the landlord’s response to the resident’s ASB reports was reasonable, considering all the circumstances of the case. This is because the landlord reviewed reports; discussed issues raised with the resident and his neighbour; reasonably liaised with police; took reasonable action where appropriate; and inspected, reviewed and confirmed a reasonable position on matters with accompanying explanation. There is no evidence under its ASB policy that it would have been fair, proportionate and reasonable for it to take more escalated action than it did in response to the level and frequency of the reports presented.
40. This investigation does note that the resident reports that he has received rent demands from the landlord, which appears to contradict its letter on 8 March 2021 that termination of the tenancy resulted in a credit, not debit, on the account. This investigation therefore makes a recommendation in relation to this.

The landlord’s complaint handling

41. The landlord was positive in seeking to try to engage with the resident and understand his concerns, and under its complaints procedure it appropriately addressed the issues he raised, even if he did not agree with stated positions. However, the progress of the complaint was more protracted than it should have been.
42. The resident expressed dissatisfaction with the November 2020 stage one follow up response the same day and detailed some reasons why. While it was positive that the landlord explained how the issue could be escalated in its procedure and invited the resident to detail why he was dissatisfied, it would have been more appropriate to simply interpret the resident’s communication for the clear dissatisfaction it was; escalate the complaint; and invite any required clarification required in a complaint acknowledgement. This prolonged progress of the complaint unnecessarily for three months, until the stage two response in February 2021 was supplied with what remained limited clarification from the resident.
43. It was then reasonable for the landlord to issue a follow up stage two response after more clarification was provided, this detailed that a further review of the complaint could be requested in order to progress to stage three.
44. This had a limited impact on the substantive issues, overall the three stages led to some time and trouble which was further compounded by the initial stage 2 delay and follow up stage 2 response, given the resident had to detail his complaint again.

Determination (decision)

45. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s anti-social behaviour reports.
46. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in the landlord’s complaint handling.

Reasons

47. In the Ombudsman’s opinion, the landlord responded overall reasonably to the resident’s ASB reports, as it investigated the issues, took reasonable action and set out a reasonable position on matters; and limited contemporaneous reports to the landlord ultimately limited its ability to try to help resolve matters.
48. The complaint was more protracted than it should have been. The landlord should have escalated the complaint after dissatisfaction was expressed with the stage one response, however it delayed doing so and this no doubt prolonged the complaint and caused an inconvenience for the resident.

Orders and recommendations

Orders

49. The landlord to pay £100 for the time and trouble caused to the resident by its complaint handling. The landlord should provide evidence it has taken steps to comply with this to this Service within four weeks of this report.
50. The landlord to review this case and take steps to ensure appropriate staff respond to complaints in line with its complaints policy. The landlord should provide evidence it has taken steps to comply with this to this Service within four weeks of this report, such as evidence of correspondence that shows senior managers have been reminded of its two stage complaints procedure.

Recommendations

51. The landlord to review unpaid rent demands sent to the resident, in light of previous correspondence noted at paragraph 40 of this report, and to provide clarification to him about why these are applicable.