South Liverpool Homes Limited (202104309)

REPORT

COMPLAINT 202104309

South Liverpool Homes Limited

29 April 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 response to the residents’ reports about noise and anti-social behaviour (‘ASB.’)

Background and summary of events

Background

2. The residents are assured tenants of the landlord, a housing association. The residents have recorded vulnerabilities on the landlord’s files in relation to their mental and physical health.
3. There is a history of the residents reporting ASB against their neighbour. On 19 May 2020, the landlord issued a stage one response to a previous complaint about how ASB reports had been handled. This advised that the landlord was satisfied that appropriate action had been taken in response to ASB reports, detailed some action on how the case would be monitored, and detailed how the residents could take the complaint further if they were dissatisfied. There is no evidence that this complaint exhausted the landlord’s complaints procedure or was requested to be escalated.
4. The Ombudsman’s remit in relation to complaints is set out by its Scheme. Paragraph 39(a) of the Housing Ombudsman Scheme advises that the Ombudsman will not investigate complaints which, in its opinion, “are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale.”
5. This means that the Ombudsman is unable to consider all the complaints the residents have about their landlord, and this investigation focuses on events from around April 2021, the most recent ASB reports before the residents’ complaint, up until the landlord’s final response on 12 August 2021. Events that pre and post-date the complaints procedure have not been investigated here and are referenced for contextual purposes only.

Summary of events

6. In September 2019, the landlord opened an ASB case for the residents, who reported that occupants at a neighbouring property had banged doors then been aggressive when the residents had knocked on their door about this. The neighbour made counter allegations. The landlord notes that recordkeeping for the investigation was not to the standard expected, but it notes that the ASB cases were closed in November 2019 after the residents confirmed matters had been resolved. Between April and August 2020, the landlord opened further ASB cases for the residents, who made reports about their neighbour that included:
   1. April 2020: having a party; playing loud music; a visitor being verbally abusive; having a fire in the garden; doing DIY in the garden.
   2. June 2020: having visitors that stayed with them; visitors being rowdy and causing excessive noise; driving a car at the residents aggressively.
   3. August 2020: having visitors who were noisy until 10.30pm.
7. The landlord decided there was evidence of excessive noise nuisance for a party in April 2020, and it issued a tenancy warning in which it expressed concern that Covid-19 restrictions were not being taken seriously and noted that police had attended. The landlord decided that there was no evidence that other reports were ASB, but it reminded the residents’ neighbour of their tenant responsibilities. The landlord discussed a fire and DIY in the garden with the local authority, who advised that issues such as the DIY was unlikely to be statutory nuisance that could be investigated by them. The landlord concluded that there were no tenancy breaches for these but it discussed them with the neighbour who agreed not to have any more fires or carry out DIY after a certain time. The landlord noted that a report of the residents being driven at aggressively was not linked to their neighbour and noted that no action was taken by the police, who it also discussed ASB with. The landlord and the police offered mediation but this was not taken up by the parties.
8. From April 2021, the landlord received further reports from the residents about their neighbour that included:
   1. April 2021: a visitor making threats; the house alarm going off.
   2. May 2021: concern that the neighbour was going to make major improvements due to wood in the garden; visitors being rowdy and urinating on the residents’ gate.
   3. July 2021: visitors drinking, banging and running up and down stairs between 1am and 5am; doing car repairs in the street; the house alarm going off.
9. The landlord decided that there was no evidence that visitor behaviour was a tenancy breach, but it warned the neighbour of their tenant responsibilities in respect to their own and visitors’ behaviour. The landlord discussed the wood with the neighbour who confirmed this related to shed works. The landlord reviewed information and video evidence the residents supplied about ASB from the neighbour’s visitors, and concluded this did not evidence the residents’ claims or excessive noise nuisance. The landlord discussed the house alarm with the neighbour on occasions it went off and on a repeat occasion, it issued a letter in which it highlighted available guidance for reducing noise nuisance in respect to alarms, and warned that repeated complaints could lead to the alarm’s disconnection. The landlord concluded that no further action was necessary for car repairs as this was not ASB or a tenancy breach.
10. The residents contacted this Service in May 2021 and explained how the ASB issues impacted them and their mental health, and led to them avoiding the property at weekends and not eating in the property. They raised dissatisfaction that warnings the landlord had given to the neighbour had not progressed to stronger action and a written eviction warning following further reports. They noted that the landlord had offered to move them to unsuitable properties, but said the neighbour should be moved because they only used the property for parties and to supply drugs. The residents stated that the landlord had admitted to making mistakes in earlier handling of their reports, had not followed procedures correctly, and left the residents open to threats, abuse, intimidation and criminality which had been reported to the police. The residents stated that they wanted an apology and acknowledgement that all the evidence submitted classed as ASB. After the complaint was referred to the landlord in June 2021, it detailed previous and current steps it had taken and asked this Service for advice, following which the Ombudsman asked the landlord to respond to the residents’ complaint.
11. On 15 July 2021, the landlord issued its stage one response to the residents:
    1. It acknowledged the residents were unhappy with service they had received, and apologised for this.
    2. It acknowledged that the residents felt that it had taken no action in response to their ASB reports against their neighbour, and felt it should take stronger action by evicting the neighbour due to the reported issues.
    3. It noted that since September 2019 it had received 14 ASB reports from the residents about their neighbour, and it was satisfied that it had investigated incidents in line with its ASB procedures. It advised that the neighbour was found to have breached their tenancy on two occasions and received formal tenancy warnings; and on other occasions where ASB was not proven, they were reminded of their tenancy terms and warned that further substantiated reports could lead to further action against their tenancy.
    4. It noted that the residents said police informed them incidents were ASB, and advised that the police had not provided any evidence of the neighbour engaging in ASB.
    5. It noted that the residents said it had not apologised for not dealing with the case appropriately at early stages. It noted that a report in September 2019 was dealt with by inexperienced and less senior staff, out of line with procedure. It apologised for this and explained that this did not affect the course of the investigation.
    6. It noted that the residents had informed this Service that the neighbour was involved with drugs and the landlord had left them open to physical attacks. It requested further information about this, and advised that it worked closely with the police and had not been made aware of such issues.
    7. It acknowledged that the residents requested eviction of the neighbour. It explained it would only evict a tenant as a last resort when all other options had been exhausted. It advised that it did not believe the neighbour’s behaviour warranted any legal action against them, and that legal advice it had sought had confirmed any type of legal action would not be appropriate or proportionate. It noted that throughout its investigations it had tried to support the residents, liaised with external organisations such as the local authority and emergency services, and offered mediation which had been refused by them and their neighbour. It said it could approach their neighbour again about this if the residents were willing to reconsider this option.
    8. It advised there was a clash of lifestyles, which it had acknowledged impacted the residents’ health, and it had offered support and discussed transfer to another home. It advised that after the residents requested a move, it had offered two different properties in Summer 2020 which had been declined as they felt ASB would be suffered at both properties. It noted that there had been no evidence for this and no ASB had been reported after new tenants had moved into the properties. It noted that in May 2021 the residents had requested it make a further offer for another home, and it was currently trying to identify a suitable home.
    9. It detailed concerns with the residents’ own behaviour. It raised concern that actions in respect to their neighbour could constitute harassment and lead to action being taken against them by the landlord or the police; raised concern about behaviour from the residents to landlord staff and each other; and raised concern about the residents reporting behaviour that would not constitute ASB, having unreasonable expectations, and placing excessive demands on its service for which it may have no option but to limit contact.
    10. It detailed how the residents could report incidents such as noise and how the residents could take the complaint further if they were dissatisfied.
12. On 19 July 2021, the residents wrote to the landlord and forwarded a copy to this Service. The residents detailed their version of events of issues and incidents that had occurred, and how it was their view that these qualified as ASB. The residents raised dissatisfaction with the landlord’s handling of issues, and with issues such as the alarm having to be addressed again. The residents raised dissatisfaction that early reports were not passed to more experienced staff as was promised. The residents raised dissatisfaction with the level of support they were provided given their vulnerabilities. The residents disagreed that mediation was refused and said they had been the ones to request it following the early ASB reports. The residents complained about the impact the neighbour was having on them and said the landlord was not empathetic or understanding and had bullied them. The residents refuted claims in the response and felt the landlord was trying to ‘suppress’ their ASB claims. The residents commented on reasons why previous properties offered were declined, and said they had provided two ‘professional’ witnesses who the landlord had called liars.
13. The landlord held a complaint review panel with the residents on 3 August 2021, where their ASB issues were discussed, then on 12 August 2021, the landlord issued its final response to the residents’ complaint:
    1. It acknowledged that the residents felt appropriate action had not been taken; felt that it had not been supportive over the past two years; and were unhappy with comments in the previous response. It noted that at the panel the residents had said the outcomes they were seeking were to live next door to respectful neighbours and to be considered for a transfer to a new home.
    2. It noted ASB reports which had been made since September 2019. It noted that four gatherings had been reported, for which the police had attended and taken no further action. It noted that the house alarm had sounded on three occasions, which the neighbour had been swift to attend when alerted. It noted that other incidents had been discussed which neither it nor the police had pursued action for. It detailed that it had taken steps to investigate reports; offered mediation which had been declined by the neighbour; done informal mediation with the neighbour; issued tenancy warnings; offered two alternative homes and considering a third offer; put tenancy support in place longer than usually provided; discussed matters with partner agencies such as the police; and sought legal advice to confirm its actions were proportionate. It acknowledged the residents disagreed with the strength of actions taken, but it concluded that it was satisfied with its response to the residents’ ASB reports.
    3. It noted that the residents’ escalation request complained about its lack of support, disputed its claims and reported feeling bullied by the landlord. It noted that this was not repeated at the complaint panel meeting and that the residents had acknowledged that staff had been supportive and taken what action could be taken. It advised that it considered appropriate support had been offered, but it apologised with the residents’ perception of how they had been dealt with, and said it hoped the response assured the residents that a thorough case review had been done.
    4. It identified that there were aspects of the complaint response that it would consider doing differently in future responses, but did not consider these to have been detrimental to the response.
    5. It detailed how the residents should report future incidents to the landlord and the police; how the residents should refrain from engagement with their neighbour; and detailed how the landlord would maintain weekly contact to identify any ASB and to discuss rehousing.
14. The residents raised dissatisfaction with the landlord’s response and said there had been more than four ASB incidents; said the landlord was not taking their case seriously enough; and said it had not done what it said it would do, which was stop the ASB. They raised concern that their neighbour would continue with ASB if not sent a warning letter. They said that the landlord would hear the neighbour’s ASB if it listened to recordings they had made. They said that their neighbour should be the one moving as they were the victims. They disagreed with the landlord’s views on legal action, and said that any judge who heard the case would be in the residents’ favour. The residents detailed that the issues had impacted both of their mental health, and detailed a desire for any move to be to a bungalow due to mobility issues.
15. The landlord responded that it would issue no further correspondence for incidents reviewed at the panel. It said that the agreed actions to maintain weekly contact and explore rehousing were being taken forward, and that any further incidents should be logged via a noise app and discussed during weekly contact. Later in August 2021, the landlord updated the residents about the status of a search for suitable accommodation, noted there had been no ASB incidents since July 2021, and explained that recent reports of the neighbour carrying out car repairs in the street were not considered ASB. It explained the neighbour had been spoken to in July 2021, reminded of tenant responsibilities, and warned that they could face action against the tenancy if found to have cause ASB. The landlord advised the residents that having reviewed supplied video footage, all appropriate action had been taken.
16. The landlord later made attempts to contact the residents to discuss ASB reports and a property it identified, then wrote to them in October and November 2021. The landlord asked the residents to log recent reports via an app if nuisance was caused and explained that issues such as the neighbour sweeping leaves were not considered a tenancy matter. The landlord said it had stopped looking for properties after the residents said they would not move before the Ombudsman investigated, and later invited the residents to confirm if they would like it to look for suitable properties again, although it noted that it would need to be able to make regular contact with the residents by phone to quickly discuss properties when they become available. The landlord informed the residents that it intended to close the ASB case, as there did not appear to have been any ASB reports for over three months; it was not procedure to keep ASB investigations open for periods that were not being investigated; and it was unfair on other parties involved to keep investigations open longer than necessary. The landlord went on to close the case after a period elapsed which it had given the residents.

Assessment and findings

17. 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.
18. This Service understands the residents’ situation and recognises that the concerns they have reported have affected and caused distress to them. This Service notes that videos provided by the residents to the landlord have been supplied toward the investigation, and the residents also supplied a doctor’s letter, which have been considered. In cases relating to ASB, it is not the Ombudsman’s role however to determine whether ASB occurred or who is responsible. It is also not within the Ombudsman’s authority or expertise to assess the impact on health, or decide on matters such as tenancy breach in the same way as the courts. However, the Ombudsman can assess how a landlord has dealt with 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.
19. Following the residents’ reports, it was necessary for the landlord to respond to their concerns and to take action in accordance with its ASB policies, such as assess the risk; contact the residents; discuss the case with the alleged perpetrator and other agencies; monitor the situation; and to deal with reports in a proportionate and appropriate manner, considering its obligation as landlord to treat allegations from all of its customers in a consistent and evidence-led way.
20. In this case, before and after the formal complaint, the landlord took appropriate action in response to the residents’ reports, as the evidence shows it fulfilled obligations to consider and respond to their reports in a timely and reasonable manner. It discussed the issues with the residents and their neighbour; it reviewed evidence such as the videos supplied by the residents; it liaised with police and the local authority; it took action such as wrote warning letters where it considered this appropriate; and it reviewed and confirmed a position on matters to the residents at appropriate times, with accompanying explanation. The landlord and the police also offered mediation which did not progress due to the residents or their neighbour.
21. The landlord was reasonable to explain that it would not take stronger action of the type the residents wanted, without sufficient evidence that the residents’ neighbour caused ASB to the level that would warrant such action. The taking of legal action against a tenant is not something the Ombudsman would expect a landlord to do without sufficient evidence, and in the Ombudsman’s opinion the landlord demonstrates it gave this the careful consideration this deserves. In order for a landlord to take action against a tenant for acts of ASB, a landlord has to be sure that it would be a proportionate and justified response to the allegations and the evidence available. This is in the interests of all parties including the landlord, the residents and their neighbour accused of ASB, who the landlord is obligated to treat as fairly as the residents. The landlord clearly carefully considered if it felt it had enough evidence to take action, carried out a thorough review in its complaints panel, and sought legal advice which confirms this. This Service has seen no evidence that the landlord or any other agency such as the police considered that the information available warranted further action than was taken.
22. While it is clear that the residents have a different view to the landlord, the landlord is entitled to rely upon the opinion of its professional staff, including legal staff, in making decisions on reports and evidence it receives. The residents may, as suggested at Paragraph 17 of this report, have different expectations about steps the landlord could take. While understandably frustrating, some issues occurring again a year after previous reports does not have automatically provide a basis for stronger action to be taken than before. The action that can be taken for noise or ASB can depend on current nature and frequency, and it is understandable if the landlord found it difficult to justify stronger action if issues were not evidenced to be of a sufficiently unreasonable, ongoing and persistent nature at the time that the residents experienced/reported them.
23. Overall, in the Ombudsman’s opinion the landlord’s response to the residents’ reports in the timeframe of the complaint was appropriate, considering all the circumstances of the case. This is because it adequately investigated the issues in accordance with its ASB policy; took reasonable action in regard to issues raised; liaised with other agencies; attempted to use different intervention tools such as mediation; provided reasonable position and explanation; and handled matters in an appropriate way before, during and after the complaints procedure.

Determination (decision)

24. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s response to the residents’ reports about noise and anti-social behaviour.

Reasons

25. The landlord responded to the residents’ reports in accordance with its policies and it considered and took reasonable positions or actions in regard to the issues raised. Its position that there was insufficient evidence to take stronger action was reasonable, as this followed multiple reviews of the case and seeking of legal advice.

Orders and recommendations

Recommendations

26. The landlord to liaise with the residents to review their current options in respect to ASB and a direct transfer.
27. The landlord to liaise with the residents to review whether they would wish to try to explore mediation again between them and their neighbour in relation to any current issues.