Red Kite Community Housing Limited (202111113)

REPORT

COMPLAINT 202111113

Red Kite Community Housing Limited

19 January 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

The complaint is about the landlord’s handling of the resident’s:
1. reports of antisocial behaviour (ASB), and the counter allegations of ASB made against her;
2. concerns regarding her shared driveway and garden.

Background

The resident holds an assured tenancy that began on 12 December 2011. The property is a 3 bedroom semi-detached house, with gardens front and back. The landlord is a housing association.
The resident’s property shares a driveway with the neighbouring property, which is also owned by the landlord. The resident’s ASB reports and counter allegations detailed below, concerned the tenant of the neighbouring property who shared the driveway, and who for the purposes of this report is referred to as ‘the neighbour’.
The landlord’s records stated that the resident has various vulnerabilities related to her physical and mental health.

Tenancy agreement

The resident’s tenancy agreement detailed a tenant’s obligations. It stated that it was the tenant’s responsibility to keep their garden tidy and well maintained, to not cause a nuisance to other persons in the neighbourhood, and to obtain the landlord’s written consent ahead of undertaking property improvements.

ASB policy

The landlord’s policy said that it would respond to reports of less severe ASB, such as neighbour disputes, within 5 working days.
It stated that it would ensure residents could easily report ASB, and would be kept informed about the status of their case. It said its approach was to tackle ASB through methods including prevention and early intervention.
It said that it would actively encourage mediation, which it considered valuable in resolving neighbour disputes. It said it would work closely with mediation services to promote this approach.

Feedback policy

The landlord’s policy in place at the time of the resident’s complaint stated that it operated a 2 stage complaint process. It said that it would aim to formally respond to complaints at stage 1 within 10 working days.
It said that where a resident remained dissatisfied, they could request an appeal at stage 2 that would be, “considered based on any new evidence or information not previously taken into account”. It said that it would aim to formally respond to complaints at stage 2 within 10 working days.

Summary of events

On 18 June 2021 the landlord visited the resident. Its record of the visit noted that the resident was renovating her back garden. The record stated that progress with the garden was slow, but being made, and that the resident had said she was taking care not to let building materials impede the neighbour’s access on their shared driveway.
On 5 July 2021 the landlord received an allegation of ASB from the resident regarding her neighbour, and a counter allegation from the neighbour regarding the resident. Both reports included matters related to the use and condition of their shared driveway.
On 7 July 2021 the landlord discussed the resident’s reports of ASB with her. The landlord followed this up in writing to the resident with an action plan, which included the use of diary sheets and information regarding mediation. The landlord made a referral to an external mediation organisation.
On 13 July 2021 the landlord sent a similar letter and information to the neighbour. It also sent an ‘ASB awareness’ letter to the neighbour, which advised that allegations had been made against them. It stated that it was not yet known whether the allegations were justified, but that if they proved to be, the landlord may take breach of tenancy actions.
On 27 July 2021 the landlord sent the same ASB awareness letter to the resident. The landlord called the resident ahead of sending the letter to explain that it was part of its process, and nothing to be concerned about. The resident told the landlord that if she received the letter, she would consider it to be harassment.
During late July and early August 2021 the resident sent several lengthy emails to the landlord expressing her dissatisfaction with its handling of the ASB reports, and the conduct of one of its staff, which she said she viewed as harassment.
On 3 August 2021 the landlord acknowledged the resident’s emails. It provided a summary of the relevant actions it had taken so far with her and the neighbour. It reiterated that it had previously agreed that, if there had been no further issues, it would contact her on 4 August 2021 with a view to closing the ASB case. It advised that the staff conduct concerns she had raised were being dealt with separately, and proposed a visit to discuss this and other matters.
On 6 August 2021 the landlord visited the resident and discussed the ASB issues, the condition of her back garden, the need for her to have permission for the external works she had undertaken, and for the further works that she was intending. Following the meeting, the resident sent the landlord several emails protesting various aspects of what had been discussed, and her belief that it constituted victimisation and harassment.
On 11 August 2021 the landlord wrote to the resident to confirm the outcomes of its visit, and with regards to her recent emails. The key points were as follows:
1. It clarified that the resident’s and neighbour’s ASB cases had been handled by 2 different officers. It said that both officers had both followed its same process. It apologised that one officer had acted more swiftly than the other, which had resulted in the resident receiving her ASB awareness letter 2 weeks after the neighbour had received theirs.
2. It stated that it had received no evidence supporting the ASB allegations against the resident. It said that as mediation was due to begin, the case would likely soon be closed.
3. It reiterated that the resident should provide it as much information as she could, in order that it could assess her permission requests for her various external improvement works.
4. It confirmed that the current condition of the resident’s garden was below what was required by her tenancy agreement. It emphasised that it understood how this had come to be the case, and that the resident and her family’s health issues had hampered how quickly they could deal with it.
5. It stressed that it would not hold the resident to impossible timescales to improve the garden condition, but that it had asked the resident to suggest achievable timescales that it would then monitor.
6. It explained how the resident could make a formal complaint if she remained dissatisfied.
On 13 August 2021 the resident made her complaint to the landlord regarding what she said was the harassment, victimisation, and bullying of her by its staff, its bias towards her neighbour, and issues concerning her garden and external works permission requests. The landlord acknowledged the resident’s complaint the same day.
On 18 August 2021 the landlord called the resident for just over an hour to discuss her complaint. The landlord clarified to the resident that it would investigate her comments about the conduct of its staff in line with its complaint process. It advised that it would look into the large amount of information she had provided regarding her permission requests and the shared driveway, but respond to them as service enquiries.
On 23 August 2021 the landlord issued its stage 1 complaint response to the resident. The landlord’s key points were as follows:
1. It stated that it had followed its process regarding the reports of ASB made by the resident and her neighbour, and as such its contact with the resident had been appropriate and not discriminatory. It encouraged the continued use of mediation.
2. It explained its process for dealing with untidy gardens. It emphasised that it understood the resident’s health and financial constraints, and did not have unrealistic expectations.
3. It stated that it could not agree to a plan to improve the resident’s garden without any timescales at all, but only required a phased action plan that would allow progress to be monitored and achieved. It proposed an appointment to visit and discuss this further.
4. It provided detailed information in response to the resident’s queries regarding improvement work permission requests, and the history of the shared driveway.
5. It concluded that it was unable to uphold the resident’s complaint that there has been harassment, victimisation or bullying in its approach to working with her to resolve the issues. It advised how the resident could escalate her complaint if she remained dissatisfied.
During the remainder of August and into September 2021, the resident sent several lengthy emails to the landlord disputing its stage 1 response, and repeating her complaints of harassment, victimisation and bias by the landlord towards the neighbour. On 12 September 2021 she asked that her complaint be looked at again.
On 22 September 2021 the landlord wrote to the resident to confirm the outcome of its visit on 13 September 2021. The landlord’s letter stated how impressed it had been with the progress the resident had made with her garden. It summarised the further works that had been discussed and agreed. It advised it would visit again after 18 October 2021, and would agree an appointment with the resident nearer that time.
On 23 September 2021 the landlord responded further to the resident’s complaint. The landlord’s key points were as follows:
1. It explained that in order for it to complete a stage 2 review, the resident would need to have provided new information or evidence that had not already been considered.
2. It stated that it appreciated the resident’s frustration, but that she had not provided any new evidence of the allegations she had made. It said that it was satisfied that its stage 1 investigation had provided a detailed and comprehensive response to the resident’s complaint.
3. It reiterated its satisfaction with the progress the resident had made to date with her garden, and its intention to visit again in 4 weeks’ time.
4. It confirmed that both the resident and the neighbour would require each other’s agreement to store items on the shared driveway. It said that this should be progressed through the ongoing mediation, as it would open up dialogue and help find a resolution.
5. It referred the resident to this Service if she remained dissatisfied.
On 7 October 2021 the resident thanked the landlord for its visit the previous day, but stated that she did not consider her complaint to be resolved. She repeated her belief that she had been bullied, victimised, harassed, intimidated and threatened by the landlord. She complained that the landlord had not apologised to her, and stated that she would not commit to a timescale for her garden and works to progress.
On 14 October 2021 the landlord called the resident. The landlord’s record of the call stated that it had lasted about an hour, and ended very positively. The landlord followed up on the call in writing the next day. It advised that it would complete further visits to the resident, but that in light of her husband’s ill health, and the change of weather, no further garden progress was expected of her until the spring.
On 18 October 2021 the landlord’s internal email confirmed that it had inspected the shared driveway, and made recommendations for work it could complete to rectify what it said was a slight dip by the drain. The landlord also replied to queries made on behalf of the resident by the local Member of Parliament’s (MP) office. The landlord’s key points to the MP were as follows:
1. It confirmed that it was happy to complete any repairs necessary to the shared driveway, but would not alter the current shared arrangement that had been in place for many years, nor move the neighbour’s garage back by 1 metre as the resident had requested.
2. It said that it would review this again once it had received the occupational therapist’s report that the resident had said had been completed, but that it had not received to date.
3. It explained its process for dealing with reports of ASB, and its belief that mediation was the best way forward for the resident and neighbour.
4. It reiterated its position regarding the resident’s garden, its willingness to be flexible and for no further work to be done until the spring, but the need to work to an action plan with timeframes.
5. It stated that it would never be its intention to make a resident feel harassed, victimised or intimidated. It said that it had thoroughly investigated this via its complaint process, and had tried to explain its processes and approach to the resident.
On 20 October 2021 the landlord confirmed the findings of its driveway inspection to the resident. It said that it did not agree that the driveway was ‘extremely dangerous’, as the resident had stated, but that it would carry out repairs in the spring when the weather was suitable for that type of work.

Summary of events after the completion of the landlord’s complaints process

The resident continued to express her dissatisfaction to the landlord in the months following its complaint process, and up to the present day. She has a further case registered with this Service that covers some of these more recent events. As such, the resident was advised that this investigation would focus on her 2021 complaint to the landlord, as summarised above.

Assessment and findings

ASB

In cases relating to ASB, it is not the Ombudsman’s role to determine whether ASB occurred or who was responsible. Rather it is to assess how a landlord has dealt with the reports it has received, and whether it has reasonably followed its policy and good practice, considering all of the circumstances of the case.
The Ombudsman acknowledges the resident’s dissatisfaction with the landlord’s handling of both her own reports of ASB, and of the counter allegations made against her. It is also noted that better outcomes may have been achieved, had the landlord’s 2 investigating officers coordinated their approach. Nevertheless, it is the view of the Ombudsman that the landlord otherwise handled the resident’s reports, and the counter allegations, appropriately and in line with its policy. As such, no maladministration has been found.
Both the resident and her neighbour made their reports of ASB to the landlord on 5 July 2021. It was appropriate for the landlord to discuss the resident’s reports with her on 7 July 2021, which was well within the timeframe stated in its policy.
It was reasonable for the landlord to follow this up in writing to the resident the same day, and to include its action plan, diary sheets, and referral for mediation. This was in line with its policy, and its stated approaches of:
1. early intervention;
2. ensuring ASB could be easily reported;
3. promoting mediation as a means of resolving neighbour disputes.
The resident and neighbour’s reports of ASB were handled by the landlord’s 2 separate officers, who dealt with their respective cases independently. This meant that the resident received the landlord’s action plan and letter acknowledging her ASB reports, 4 working days before the neighbour received theirs. It also meant that the resident received the landlord’s ‘ASB awareness’ letter, concerning the counter allegations made against her, 10 working days after the neighbour had received theirs.
It was a shortcoming of the landlord that its 2 officers did not better coordinate their case handling, and it was appropriate that the landlord apologised for this on 11 August 2021. However the Ombudsman has seen no evidence that this caused any significant detriment to the resident, nor that it was as a result of bias or discrimination.
Furthermore, ahead of sending its ASB awareness letter to the resident on 27 July 2021, the landlord made a point of calling her to offer her its assurances, and listen to any concerns that she had. This was in line with the stated aim of its policy, to keep residents informed about the status of their case.
The resident subsequently expressed her dissatisfaction with the landlord, which included its handling of her ASB reports, and her view that the actions of its officer constituted harassment. The landlord responded in a timely manner, and it was appropriate for it to provide a summary of its actions to date, further reassurance about her ASB case, and propose a visit, which was completed on 6 August 2021. The landlord’s actions demonstrated an empathetic and resident focused approach.
It was reasonable for the landlord to confirm the outcomes of its visit to the resident, in its letter to her on 11 August 2021. The landlord’s letter included a further update of her ASB case, and the likelihood that the forthcoming mediation would mean it could be closed. This was again in line with the landlord’s policy commitment, to keep residents informed about the status of their case.
It was appropriate for the landlord’s letter to also provide information of how the resident could make a formal complaint, which she did 2 days later. The landlord called the resident 3 working days later, and it was reasonable that it spent over an hour listening to the resident’s concerns, and making clear the scope of its complaint investigation. This again demonstrated the landlord’s empathetic and resident focused approach.
The landlord issued a comprehensive stage 1 complaint response to the resident on 23 August 2021, which was well within the timeframe stated in its policy. The landlord appropriately explained its ASB process, and how both of its officers had worked in line with it. It also acted in line with its policy by further encouraging the use of mediation.
While the Ombudsman sympathises that the resident felt as she did, no evidence has been seen that supports the view that the landlord engaged in harassment, victimisation, or bullying. The landlord dealt with most matters fairly, and in line with its policy. As such, the Ombudsman has found no maladministration with the landlord’s handling of the resident’s reports of ASB, and the counter allegations of ASB made against her.

Shared driveway and garden

The resident did not dispute that her garden was in a condition that did not meet her obligations under the terms of her tenancy. The Ombudsman acknowledges the resident’s belief that it was unreasonable for the landlord to insist that the action plan to remedy this be aligned to timescales, and her belief that the shared driveway should be divided.
Nonetheless, it is the view of the Ombudsman that the landlord evidenced its consideration of the household’s vulnerabilities in its approach to seeking garden improvements, and acted appropriately with regards to the shared driveway. As such the Ombudsman has made a further finding of no maladministration.
The evidence seen by the Ombudsman stated that the landlord had visited, and was aware of renovation works being carried out by the resident in her back garden, in June 2021. It was not clear whether the work the resident was undertaking at that time would have required the landlord’s written consent, nor whether this was discussed. However the landlord did appropriately record the potential for the resident’s building materials to impede the neighbour’s access on the shared driveway, and the resident’s assurance that she would not let that happen.
The landlord visited the resident again on 6 August 2021, and its records stated that the resident had accepted that the condition of her garden did not meet the obligations of her tenancy agreement. It was appropriate for the landlord to also provide advice on the elements of the resident’s external renovation works that would require its written consent, and how she should seek this, which was again in line with her tenancy agreement.
The resident subsequently complained to the landlord about the outcomes of its visit, which the landlord clarified in writing to the resident on 11 August 2021. It was appropriate for the landlord to express its empathy as to how the situation with her garden had arisen, and to emphasise that it would not burden her with unachievable timescales to improve it. It was reasonable for the landlord to reiterate its offer that the resident suggest her own timescales, and to advise her of its complaint process if she remained dissatisfied. This demonstrated that the landlord had considered the household vulnerabilities, and further demonstrated its empathetic approach. It is acknowledged that the resident believed that the landlord’s actions constituted victimisation and harassment, but the Ombudsman has seen no evidence that would support this.
As above, having made her complaint, the landlord had a lengthy telephone discussion with the resident on 18 August 2021, and issued its stage 1 response in a timely manner, on 23 August 2021. The landlord had made clear to the resident that it was handling her works consent request, and shared driveway queries as service enquiries, rather than as part of her complaint. Nevertheless, its stage 1 response provided clear advice about works consent, and a detailed explanation of why the driveway was shared, and that it would remain so.
It was reasonable for the landlord’s stage 1 response to explain to the resident why the phased action plan to improve her garden needed to include timescales. The timescales would have allowed for clarity around expectations, and fair monitoring of progress. It was further reasonable for the landlord to again emphasise that it was considering the household vulnerabilities, and that it would ensure that any agreed timescales would be achievable.
The resident expressed her dissatisfaction with the landlord’s stage 1 response, and asked that her complaint be reviewed again on 12 September 2021. The landlord visited the resident the following day. It was reasonable that it again confirmed the outcomes of its visit in writing to the resident, and complimented her on the good progress she had made with her garden.
The landlord issued its response to the resident’s stage 2 complaint escalation request, on 23 September 2021, which was in line with the timeframe of its policy. The landlord stated that for it to complete a full stage 2 review, the resident needed to provide new information or evidence. Its letter said that, as the resident had not provided new information, and its stage 1 investigation had already provided a detailed and comprehensive response, its position remained unchanged. This was in line with the landlord’s policy, and it was appropriate for it to confirm to the resident that she had concluded its complaints process, and advise her of her right to refer the matter to this Service.
While the landlord did not issue a full stage 2 response, it was appropriate for its complaint letter to reiterate its satisfaction with the resident’s garden progress to date, and to provide further clarity on her and the neighbour’s responsibilities with regards to their shared driveway.
The resident continued to express her dissatisfaction with the landlord’s actions after the conclusion of its complaint process. The landlord has further evidenced its consideration of the resident’s household’s vulnerabilities, and practical weather concerns. It advised the resident that no further garden progress was expected before the spring, when it would also undertake repairs to the shared driveway.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in respect of the landlord’s handling of the resident’s:
1. reports of antisocial behaviour (ASB), and the counter allegations of ASB made against her;
2. concerns regarding her shared driveway and garden.

Reasons

The Ombudsman understands that the tensions with the neighbour with whom the resident shared a driveway, would have been very stressful for her, and that this would have been further worsened by her household’s health issues.
Nevertheless, the landlord handled the substantive issues of the resident’s complaint, and the complaint itself, in line with her tenancy agreement, and its relevant policies.
The landlord evidenced that it had appropriately considered the resident’s household vulnerabilities, and its patient and empathetic approach to her reports.

Recommendation

The Ombudsman recommends that the landlord review its process and training needs regarding neighbour disputes investigated by separate officers, with a view to ensuring a joined up approach.