Southern Housing Group Limited (202328032)

REPORT

COMPLAINT 202328032

Optivo (now Southern Housing)

29 May 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:
1. Reports of antisocial behaviour (ASB) and noise:
2. Complaint.

Background and summary of events

The residents have lived as assured joint tenants of the landlord in a 1 bedroom, first floor flat since August 2021. In this report, the resident’s will be referred to jointly as “the resident” throughout this report. Where necessary, we have referred to each resident separately as “Ms C” and “Mr C”.
On 1 March 2023, the resident contacted the landlord to report that:
1. They were not complaining about the “dreadful noise” the neighbours below made late at night and during the day. However, they were “putting in a complaint for bullying”, and the abuse and swearing coming through the floor.
2. Since the neighbours had moved in, they have been “aggressive and intimidating”.
3. They felt “anxious and afraid” to move around the home, turn on the vacuum cleaner or use the washing machine.
4. They just wanted to live in their own home without the anxiety, tension and fear of moving around within the property.
The resident contacted the landlord again on 8 April 2023 to report that their neighbour was “throwing food out of their window”.
On 12 April 2023, the landlord replied and stated that it had asked the resident to gather evidence for a 2 week period and provided them with diary sheets and a guide to downloading the Noise App. As the 2 week period had ended on 6 April 2023 and they had not sent it any evidence, it had been unable to complete its review. It said it would therefore “close the report and deactivate their access to the Noise App”.
The resident contacted the landlord on 1 June 2023 to inform it that they had reported their neighbour below for threatening behaviour and provided a crime reference number. Following a telephone discussion with the resident on 6 June 2023 about the incident, the landlord wrote to them on 8 June 2023. It asked them to return diary sheets and provided a link where they could access the forms online. It added that it was also able to provide them by post if this was their preferred option.
The resident completed and sent a diary to the landlord, detailing incidents from 5 July 2023 to 28 August 2023. These included reports that the neighbours were:
1. arguing very loudly;
2. “banging around”;
3. making abusive comments about other residents;
4. swearing at them whenever they moved or made any noise in their flat;
5. belching loudly, driving fast in the car park; and
6. “parking across the road” when there were spaces available in the bays.
The landlord responded to the resident on 29 August 2023. It stated it had opened an ASB case and would undertake a number of actions, which included:
1. Updating the resident fortnightly;
2. Reviewing their diary sheets and Noise App submissions;
3. Contacting witnesses;
4. Visiting the alleged perpetrator;
5. Considering appropriate enforcement action and interventions;
6. Completing a door knock in the local area.
The resident raised a stage 1 complaint on 6 October 2023 and stated that:
1. They had been getting “abused, intimidated and bullied every day” for year and there was no resolution.
2. They had sent the landlord recorded evidence, diary sheets and evidence from other neighbours but had constantly been “fobbed off”. All the landlord did was to open a new case, which meant they was “pushed straight back to the beginning”.
3. Although it had offered mediation, the neighbour had “refused” the offer.
4. As they had an assured tenancy they felt the situation would not get any better for them.
The resident contacted the landlord on 26 October 2023 to chase the complaint. They said they had not received a response to their letter of 6 October 2023 that they had sent via next day delivery. They added that, if the situation with the neighbour did not improve, they wanted to be moved to another property.
The landlord wrote to the resident on 10 November 2023 to inform them it would be visiting the neighbour on 14 November 2023. It said it would “be insisting on mediation” as this was “the only way forward to a resolution”. Following the visit, the records show that the landlord made referrals for mediation and, on 14 November 2023 the resident had contacted it to ask for help registering on mutual exchange websites. On 15 November 2023, the landlord sent the resident a case closure letter. It outlined the actions it had taken to deal with the ASB and said it hoped that mediation would help.
The landlord sent the resident its stage 1 response on 24 November 2023. It stated that:
1. It was sorry about the issues they had been experiencing with the neighbour and the effect this had on them.
2. On 1 March 2023 it had opened an ASB case but closed it on 12 April due to lack of evidence.
3. On 15 April 2023, it opened another ASB case following receipt of diary sheets. It had monitored this until it received “sufficient evidence” and passed the case to a housing officer on 29 August 2023.
4. It was sorry the resident felt its communication was poor and that they were not being listened to. They had sent it diary sheets between 15 April 2023 and 23 August 2023 but asked it not to take any action. They had also spoken to housing officers on several occasions during this time.
5. On 23 August 2023 they completed a risk assessment and agreed for an ASB case to be opened. Since then, they had been in regular contact with their housing officer, in line with its ASB procedure.
6. The housing officer had been working in partnership with other agencies but, due to data protection, was unable to share information about the actions it was taking.
7. It was pleased the resident and her neighbour had agreed to attend mediation and hoped they would find this beneficial,
8. As it did not hold a transfer list, it was sorry it was not able to move them. It would only consider an urgent management move if a resident was at serious risk of harm.
9. It had visited them on 21 November 2023 to support them in registering them for a mutual exchange and wished them success in finding a new home.
The landlord has not provided a copy of the resident’s escalation request. However, the landlord’s stage 2 response summarised the resident’s concerns as follows:
1. They felt the ASB case had been poorly handled and had taken too long to resolve.
2. They were unhappy with the wording of the landlord’s stage 1 response and the dates it implied the resident had not logged diary sheets.
3. They wanted to be moved from the current property.
Following a stage 2 panel meeting on 12 December 2023, the landlord sent the resident its stage 2 response on 14 December 2023. This stated that:
1. Its ASB procedure states it will close an ASB case where there was insufficient evidence to take it forward.
2. Its records showed that the resident had called it on 21 June 2023 as they had not received further diary sheets they had requested. It was sorry it had not sent them.
3. Between May and July 2023, they had reported incidents but told it they did not want it to take action and only wanted them logged for information.
4. On 4 August 2023, they contacted it again about an incident and it offered to open an ASB case. However, they wished to discuss the matter between themselves first as they were worried about repercussions. Following the risk assessment on 23 August 2023, they had agreed for it to open an ASB case and investigate.
5. It was sorry the resident was unhappy with the wording of its stage 1 response. However it was unable to investigate a case unless the resident agrees.
6. While it understood their wish to move, they would not qualify for an urgent management move but noted they were actively seeking a mutual exchange.
7. It agreed to re-open the ASB case and the housing officer would continue to support them to resolve the issues with her neighbour. It asked the resident to continue sending diary sheets and recordings. It had included an action plan together with target completion dates.
8. It offered the resident £50 compensation for the delay in sending diary sheets and their time and trouble having to chase up their request.
9. It would remind staff about sending out diary sheets in a timely manner.

Events following completions of the complaints process

On 23 January 2024, following a telephone conversation with the resident, the landlord wrote to them to say that, as they had declined mediation and there was “insufficient evidence of ongoing ASB” it would close their case.
The resident wrote to the landlord on 2 February 2024 to say they had “just received a letter” saying it had “yet again” closed their case and that they had agreed to this over the phone. They disagreed with the landlord’s statement and said it had given them “no choice”. They added that all the landlord did was to open and close ASB cases, when it had been the same, ongoing issue for over a year.
The resident contacted the Ombudsman to say they were unhappy with the landlord’s final response letter. They advised that the ASB was ongoing, it had impacted their health and Ms C was on anti-depressants as a result. They added that the neighbour had also almost ran Ms C over with their car.

Assessment and findings

The landlord’s policies and procedures

The resident’s tenancy agreement states that the resident is responsible for their behaviour and that of everyone who lives in or visits their home. The resident must not cause or threaten to cause nuisance, annoyance or disturbance to anyone else including those in the neighbourhood. Some examples of such behaviour include, verbal or physical abuse, arguing and slamming doors, offensive behaviour, dumping rubbish and throwing things from balconies or windows. Although the landlord has not provided a copy of the neighbour’s tenancy agreement, it is understood the conditions of tenancy with regard to ASB will be the same as those of the resident.
The landlord’s ASB policy states that it will advise whether the resident’s report meets the criteria to open a case. If so it will:
1. Agree an action plan and assign an officer to lead on the case;
2. Investigate the complaint by gathering evidence and keeping the resident updated on progress;
3. Consider early intervention such as mediation, acceptable behaviour agreements and good neighbour agreements;
4. Work with other agencies such as the police to consider preventative measures;
5. Let the resident know its resolved the case and when it will refer the case for closure.
The landlord’s compensation policy makes payments in recognition of poor service, failure to follow policy/procedure or act in a reasonable manner. It states that “a goodwill payment” can be made, and those payments range from £15 and £50. Furthermore, it states that discretionary payments are made in recognition that every case is different, and take into account the severity of the issue and any vulnerabilities of the people affected. Discretionary compensation ranges from £50-£250 for lower severity failings, £250 to £700 for middle severity and payments of over £700 in recognition of where a resident has been severely impacted.
The landlord has a 2–stage complaints process and its policy states that it must acknowledge stage 1 complaints within 5 working days. It must issue a full response to stage 1 complaints within 10 working days of the complaint being acknowledged. If it needs to extend the deadline by more than 10 days, it must get agreement from the resident about how and when it will keep them informed. It refers to stage 2 of its process as a review of the stage 1 response and it’s timescale for response at this stage is 20 working days.

Scope of investigation

The resident has stated that the noise nuisance Ms C has experienced has caused her mental and physical harm. While the Ombudsman extends every sympathy for the impact the situation has had on Ms C’s health, the Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Matters of personal injury or damage to health, their investigation and compensation, are not part of the complaints process. They are more appropriately addressed by way of the courts or the landlord’s liability insurer (if it has one) as a personal injury claim. While we cannot consider injury to health, we have considered whether the resident was caused distress or inconvenience as a result of any failings by the landlord.

Reports of ASB and noise

It is acknowledged that the ASB the resident has reported has had a profound impact. However, when considering complaints relating to ASB and noise, it is not the role of the Service to reach a decision on whether the incidents themselves have occurred. Instead, the Ombudsman’s role is to consider whether the landlord has taken reasonable and appropriate steps to respond to the resident’s reports. This report will focus on whether the landlord acted in line with its policies and procedures, and if it took proportionate action and followed good practice.
It is relevant to acknowledge that ASB cases involving reports and counter-allegations over an extended period of time, sometimes with limited or no corroborating evidence, can be among the most difficult for a landlord to manage. This is not the fault of any party, but it is important our assessment of the landlord’s actions recognises this fact
It was reasonable for the landlord to initially ask the resident to complete diary sheets as these allow the landlord to assess the type, location frequency, duration, and effect of the ASB they were reporting. This in turn can inform what, if any, further action the landlord should take. Generally, everyday household noise is not considered to be a statutory nuisance. While tenancy enforcement action may not be taken in such cases, the evidence shows that much of the ASB the resident was reporting was related to the noise transference from the two properties concerned. In cases like this, the landlord should reasonably consider what can be done to reduce this.
The Ombudsman’s Spotlight Report on Noise Complaints, published in October 2022 recommends that to handle noise reports that do not meet the statutory threshold, landlords should adopt a proactive good neighbourhood management strategy. This should be distinct to the ASB policy, with clear options for maintaining good neighbourhood relationships. It states that, this requires some landlords to recognise that noise transference is often the key issue, and address the implications of this. By doing so, landlords could stop escalating complaints into ASB and focus more on prevention.
The Ombudsman accepts that landlords are not responsible for soundproofing homes above the standards applicable at the time of building. However, our Spotlight Report recommends that actions taken to prevent and/or mitigate for the typical sources of noise nuisance will, in the long run, be more cost-efficient than handling the subsequent noise nuisance report.
There is no evidence the landlord had sufficiently considered how any noise transference could be minimised. The landlord could reasonably have inspected the resident’s and the neighbour’s properties and explored any possible causes of noise transference, such as inadequate floor coverings or air vents. It could have discussed with both the resident and neighbour whether there were any improvements they could make that were more cost effective and less disruptive than installing soundproofing, or provide advice and support with regard to the soundproofing options. That there is no evidence the landlord considered how noise transference had contributed to the resident’s reports of ASB was a failing.
The records show that, while the resident’s ASB cases remained live, the landlord gave access to its Noise App, and provided information on how they could use it. It also visited and spoke to the neighbour about the incidents the resident had reported. However, there is no indication the landlord spoke to any of the other neighbours in the block, or considered doing so. The resident had reported that the neighbour had also directed verbal abuse at other residents, thrown food out of their window and driven at high speeds in the car park. It would have therefore been appropriate in the circumstances, as part of its evidence gathering, for the landlord to have made efforts to find out whether other neighbours had been similarly impacted. Such actions would have also ensured that the landlord was acting in accordance with its ASB policy.
The landlord’s letter to the resident of 29 August 2023 includes a list of actions it would take to investigate ASB. These included contacting witnesses and carrying out a door knock of the local area. Although it did take steps to gather corroborating evidence, the landlord could reasonably have done more to establish whether the ASB was a wider issue. This could have included speaking to potential third party witnesses, and those who lived nearby. It is evident the landlord had given some misleading advice on what steps it would take to investigate her reports and this in turn meant it had failed to properly manage her expectations. That the landlord departed from its policy in this respect was a failing.
In addition, the landlord’s policy states that it will work with other agencies, such the police and consider early intervention like mediation, and acceptable behaviour and good neighbour agreements. The landlord acted appropriately, and in accordance with its policy when it offered mediation at an early stage. Mediation is an established option for resolving low-level neighbour disputes, particularly over lifestyle matters. Mediation allows both parties to understand each other’s point of view and arrive at a mutually agreed solution, and can be an effective options for maintaining good neighbourhood relationships, as recommended in the Ombudsman’s spotlight report. The evidence shows that, although the resident and her neighbour were initially willing to engage in mediation, the offer was later declined. This was beyond the landlord’s control.
The landlord stated in its stage 2 response that it had worked with external agencies in order to resolve the resident’s case but could not provide details due to issues of confidentiality. It is accepted that the landlord may not have considered it appropriate to share this information with the resident. However, the landlord has provided no contemporaneous evidence of correspondence with the police, local authority or any partner agency to consider what preventative measures it could put in place to this Service as part of this investigation. It follows that we have been unable to consider this further or establish whether appropriate action was taken.
It is noted that there was a lack of corroborating evidence, and the reports may not have met the criteria for significant external involvement. However, as the resident was reporting verbal abuse, “bullying” and harassment, it is unclear why the landlord had not explored whether measures such as warning letters, good behaviour and good neighbour agreements would be appropriate in the circumstances. Furthermore, given the tenancy agreement lists arguing and slamming doors, offensive behaviour, and throwing things from windows as potential breaches of tenancy, it would have been reasonable for the landlord to write to the neighbour and remind them of their tenancy obligations. It could also have set out the implications of tenancy breaches if such behaviour were to continue. The failure to consider any such preventative measures at an early stage would have added to the resident’s uncertainty over whether the landlord was taking their reports seriously enough.
The landlord acted appropriately by carrying out a risk assessment. However, there are no records to show it had referred or signposted the resident to any relevant support services, such as Victim Support. Ms C had reported in the risk assessment that the ASB was causing her anxiety, tension and “fear of moving around” in her own home, and that it was affecting her wellbeing”. It would therefore have been reasonable in the circumstances for the landlord to discuss the support that was available to her. This would have demonstrated it was taking a resident focussed approach, and properly listening to her concerns. Therefore while it was appropriate to undertake the risk assessment, the evidence does not demonstrate that the landlord subsequently took steps to ensure Ms C was provided with adequate support.
The landlord’s records suggest it had sent the resident an action plan on 31 August 2023. However, it has not provided copies of any plans prior to issuing its stage 2 response, and there is no indication it had agreed an action plan with the resident. A comprehensive and meaningful action plan is an opportunity to agree a preferred method of contact, and arrange convenient dates and times when the landlord could catch up with the resident. It is also a chance for the landlord to manage the resident’s expectations in terms of what it is able to do and to set realistic objectives. A plan could have set a formal contact arrangement and, in the Ombudsman’s opinion, helped form a better relationship between the resident and the landlord. Although the landlord stated in its complaint response that the housing officer had kept in regular contact with the resident, the landlord has not provided evidence of the correspondence to evidence this.
Action plans can also be reviewed regularly, to ensure actions are taken and to set new ones, as necessity arises. The consequence of poor action planning on this occasion was that the landlord was repeatedly closing and re-opening the resident’s ASB case, and this would have created uncertainty and provided little assurance that it was taking all reasonable steps to improve the situation. It is noted that the landlord included an action plan as part of its stage 2 response. However, it was very brief and gave little indication of how the landlord proposed to try and resolve the ASB going forward.
The plan listed only 3 actions, one of which was to re-open the ASB case and the other was that the resident continued providing diary sheets. The Ombudsman’s Spotlight Report states that being clear on how a noise report will be handled can only aid good communication and expectation management. It will avoid the perception felt by many residents that they kept endless diary records for no purpose or outcome. Given the resident had already provided diary sheets from July to December 2023, it is unclear what purpose they would have served at this stage. There is nothing to indicate the landlord had explained to the resident the purpose of continuing to complete diary sheets, or the actions it proposed take as a result.
It is important that landlords manage residents’ expectations, especially when they ask them to complete a diary where the ASB largely relates to noise. Landlord’s should be clear that diary sheets alone are unlikely to prove that ASB has occurred. It should also explain the limitations of evidence from diary sheets, and that they should be used in conjunction with other means of evidence gathering, such as noise apps or third party witness statements. Given the circumstances of the case, that the landlord asked the resident to continue completing diary sheets in its stage 2 response was a failure in expectation management.
However, it is acknowledged that there were occasions when the resident had either not provided any evidence or asked the landlord not to take further action. As the landlord noted in its stage 2 response, it can only take action with the resident’s consent. The landlord therefore cannot be criticised for the periods of time when it took no further action, either due to a lack of evidence or when it did so at the resident’s request.
Given the landlord’s Management Move policy lists its criteria for management moves as being for residents fleeing domestic abuse and “possibly extreme ASB cases”, the landlord’s advice that the resident did not meet the criteria was reasonable. In addition, it acted appropriately by supporting the resident to seek alternative properties via the mutual exchange scheme.
The landlord was correct to identify that it had delayed sending the resident diary sheets when she had requested them, and that she had to spend unnecessary time and trouble to ask again. It is appropriate that it offered £50 compensation for this failure, which was in line with its compensation policy. Furthermore, it outlined the action it would take as a result of its learning from the complaint. However, that the landlord failed to:
1. consider how noise transference contributed to the ASB and what it could do to address this;
2. take some of the actions available to it as part of its ASB policy, such as speaking to other residents in the block;
3. ensure that steps were taken following the risk assessment to ensure Ms C was provided with adequate support.
We have therefore found maladministration in the landlord’s handling of the resident’s reports of ASB. We have also made a series of orders aimed at putting things right.

Complaint

There is no evidence that the landlord acknowledged the resident’s stage 1 complaint. It is unclear why it took 35 working days for the landlord to provide a response. However, that it did was a departure from the timescales set out in its complaint policy and the Ombudsman’s Complaint Handling Code (the Code).
The landlord was unable to demonstrate that it contacted the resident at any point during this time to agree a new timescale, explain why there had been a delay or keep her informed with regard to when it would likely respond. As a result, the resident was left to chase the landlord about the complaint they had sent via next day delivery.
It was inappropriate that the landlord did not acknowledge the delay in its response. It would have been reasonable in the circumstances for it to offer an apology for its poor complaint handling, and compensation in line with its compensation policy. That it did not was a missed opportunity to put things right. It is acknowledged that the delay in this case was not excessive. However, given that the landlord failed to adhere to its own policy and the Code, we have made a finding of service failure.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s response to the resident’s reports of antisocial behaviour (ASB) and noise.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s complaint handling.

Reasons

The landlord failed to consider how noise transference contributed to the issues the resident was reporting relating to ASB. Furthermore, although it took some measures to try and support the resident, the landlord failed to speak to potential third party witnesses or consider preventative measures such as warning letters and good neighbour agreements in line with its ASB policy.
The landlord failed to acknowledge the resident’s stage 1 complaint. It delayed responding without agreeing an extension with the resident, and failed to apologise for the delay or offer any compensation.

Orders

Within 4 weeks of the date of this report the landlord must:
1. Pay the resident total compensation of £500, which consists of:
  1. £350 in recognition of the distress and inconvenience caused as a result of its failure to consider or address noise transference, or to properly follow its ASB policy.
  2. £150 for its poor complaint handling, and the resulting distress and inconvenience.
2. Provide a written apology to the resident from a senior member of staff for the failures identified in this report.
3. Provide evidence of compliance with these orders to the Service within the timescales set out above.
Within 8 weeks of the date of this report:
1. The landlord is ordered to contact the resident and her neighbour to discuss if there is any advice or support it could provide in order to minimise any noise transference from their properties. It should offer to inspect both properties to check whether there are any factors contributing to the levels of noise coming from each property. Consideration should be given on any improvements or alterations the resident and neighbour could make to ensure any noises from other properties are less acute. The landlord to report back to the Ombudsman the outcome of those discussions within the timescale as mentioned above.
2. The landlord to carry out a review on how it deals with complaints relating to non-statutory noise nuisance and consider any amendments it makes to the relevant policy and procedure against the recommendations made in the Ombudsman’s Spotlight Report. The landlord to report back to the Service with the outcome of its review.
3. The resident has reported that she continues to experience ASB from her neighbour. The landlord to contact the resident and discuss what further actions it plans to take in response to these reports, and to consider whether there are any other measures it can take in order to provide any ongoing support, such as speaking to other residents in the block and signposting the resident to appropriate support services. The landlord to report back to the Ombudsman with an action plan, detailing what further actions it intends to take.