Sovereign Housing Association Limited (202010817)

REPORT

COMPLAINT 202010817

Sovereign Housing Association Limited

19 August 2021

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:
1. The landlord’s response to the resident’s reports of an erection of a gate and her reports of noise nuisance in relation to a neighbour’s dogs.
2. The landlord’s complaint handling.

Background and summary of events

The resident occupies a two-bedroom, ground–floor flat with a communal garden under an assured tenancy with the landlord. Her tenancy began on 20 May 2013. The neighbour, that the complaint relates to, was a leaseholder of a flat upstairs. They shared access to their respective flats via garden gates.

Legal and policy framework

The tenancy agreement prohibited the tenant from causing a nuisance. Examples included dogs barking and fouling. A tenant was not permitted to keep any animal or pet in the home or garden unless the tenant complied with the landlord’s pets policy. The landlord informed this service that it does not have a pets policy.
The neighbour’s lease stated that the lessee was not permitted to keep any animal in the premises without the prior written consent of the landlord. The lease also stated that the lessee should not do any act or thing which may be or become a nuisance to the occupiers in the building.

The ASB policy

The landlord provided the ASB policy dated March 2021 but has confirmed to this service that it was current at the time of the events in this case. The policy does not cover animals. Its website, however, currently differentiates between occasional noise, and noise causing nuisance. It refers a tenant disturbed by dog barking to the local authority. It suggests that the tenant could try having a quiet conversation with the pet owner and explaining the problem. If the barking is persistent, the resident can contact the landlord. If the issue is investigated by the landlord, it may offer mediation. If the tenant were concerned that the neighbour would respond with anger or threats, the tenant may contact the landlord. If the matter is not resolved, it suggests that the neighbour keep a record of the noise nuisance, including the date and time.

The complaints policy.

The complaints policy stated that the process was a two-stage process. It stated that the landlord would ensure that it understood what happened from the customer’s viewpoint and look for a solution that worked for them. It would keep in touch until everything was sorted out.

Chronology

On 10 August 2020, the resident reported to the landlord by telephone that her neighbour had 6 dogs, 5 of which were large. She reported that the neighbour ran a dog–walking business from the flat. The landlord said it would talk to the neighbour, as the dogs barking were causing “quite a lot” of disturbance, The landlord spoke to the neighbour on the same day.
While it was not clear whether this was a report or a complaint, the report was referred the landlord’s complaints team. According to the landlord’s internal records, there was an ongoing neighbour dispute, with mutual complaints against one and other. It was thought that the resident had been told she should make her reports about the dogs to the local authority and the landlord would not get involved. The neighbour had permission for the dogs. However, the housing officer took the view another housing officer should deal with the matter, in order to avoid any appearance of bias due to an acquaintanceship between the parties. The landlord subsequently concluded that it had dealt with the matter by highlighting the issues to both parties.
On 23 September 2020, the landlord attended the resident’s property following her report that she had to open three gates in order to access her property, instead of two gates. She said this allowed the neighbour to leave her flat door open and her six dogs to access her garden using the shared access which effectively made the shared access part of her garden. This also presented a risk to anyone using the shared access as they had to go through the area the dogs were in. The resident also reported that the dogs created a lot of noise in the flat. The landlord had taken photographs of the gate.
According to the landlord’s records of 9 November 2020, the resident made a formal complaint that the landlord had not responded to her reports that a) her neighbour had installed a gate across their shared path: she was of the view the neighbour had not obtained permission for the gate, and b) the neighbour kept six dogs in the flat which was above her and she could hear everything they did. The resident would like the flat sound–proofed. The complaint itself was not provided to this service. According to the resident, she had made reports over the telephone and did not have a copy of her written complaint.
In an internal email on the same date, the landlord commented that it was aware of the issue about a gate, but not of a complaint. It would not ask the neighbour to sound–proof her property, as there was no evidence of any noise. It was thought that the neighbour had installed another gate across a communal pathway shared by both parties.
On 11 November 2020, according to the landlord’s records, the landlord spoke to both parties. The resident was upset that the dogs were given access to the shared pathway. She stated that her delivery drivers and visitors were too frightened to walk down the pathway. She was also unhappy at having to pass and negotiate the erected gates. She wanted them removed.
The neighbour informed the landlord that she had erected two gates on the pathway in order to prevent her dogs from escaping, on the advice of a dog warden. The dogs had previously escaped and killed chickens at another property. The neighbour had assured the landlord the dogs did not run around on the pathway. They were only there on the way to go on a walk.
On 25 November 2020, the resident reported that the dogs were congregating on the pathway. The landlord’s view was that it a case of one person’s word against the other. The neighbour requested an on-site visit. The landlord explained to her that it was a shared pathway, and the gate should not be there without its permission.
On 1 December 2020, the landlord made a site visit. It noted that the gates had divided the space and the access to each property’s garden and considered the advantages and disadvantages of the gates being left in place.
On 4 December 2020, the landlord secured an agreement that the neighbour would remove one of the gates. It proposed that the remaining gate be made secure with a board at the bottom so as to protect the chickens and prevent dogs from escaping. It would take the neighbour a few weeks to make the necessary arrangements, as she needed to secure assistance. According to the landlord’s records, it left a message on the resident’s telephone.
According to the landlord’s records, on 7 December 2020, the resident chased her complaint as follows:
1. The neighbour had installed a gate and was using the communal walkway as her own.
2. The neighbour kept her dogs in this area, which was unacceptable. She did not wish to step over numerous dogs in order to access her property. The landlord had informed her there were no further steps it could take.
The landlord replied on the same day that the neighbour had agreed to remove a gate she has erected along the shared pathway but it would take a few weeks while she arranged for this to be done. The neighbour would arrange for the other gate to be secured so there would be no gap along the bottom giving access to the dogs or chickens. It asked the resident not to remove the board from the gate.
On the same day, the resident supplied photographs of the dogs in the shared walkway and not enclosed in their garden. She provided further photographs on 8 December 2020, which, according to the residents, showed the dogs not on leads.
The landlord wrote to the resident on 10 December 2020 referring to a telephone conversation ‘the other day’ to say the landlord had exhausted the complaints process and there were no further steps it could take and had closed the complaint. The landlord has confirmed to this service that this email was the second stage response. According to the landlord’s records, the reviewing complaints officer did not appear to be aware the resident’s complaint was in relation to her reports of nuisance caused by the dogs.
While the period after the completion of the landlord’s internal complaints procedure is beyond the remit of this report, it is noted that the neighbour was due to remove the gate on 21 December 2020. She did not do so. However, the landlord followed this up with the neighbour who informed the landlord the gate would be removed on or by 6 January 2021.
On 6 January 2021, the neighbour had removed the gate, and according to the landlord’s records, the resident was satisfied with that outcome.

Assessment and findings

This investigation was delayed and hampered to a degree by the delays and gaps in the provision of records by the landlord. The Ombudsman bases its decisions on the documentary evidence provided to it by the parties and there is an expectation that the landlord, as the professional organisation with resources available to it, should be in a position to provide adequate evidence of its actions. Those gaps have been highlighted throughout this report. Good record-keeping is vital in order to maintain a record of its actions. It is also important in instilling confidence in the landlord in its managements systems and information. The landlord should therefore take steps to ensure that its record keeping practices are adequate and that care is taken to provide all necessary documentation requested by the Ombudsman for its investigations.

The landlord’s response to the resident’s reports of an erection of a gate and her reports of noise nuisance in relation to a neighbour’s dogs.

It was appropriate of the landlord to action the resident’s report of the 10 August 2020, at which point it took a sympathetic attitude to the resident’s reports. It was also appropriate for one officer of the landlord to refer the matter to another officer, in order to avoid even the appearance of bias, and to involve the complaints, or resolution, team. It was also appropriate to discuss the matter with the neighbour.
It is reasonable to conclude that the provision of records to the service is incomplete as there is no evidence of the referral to the local authority or previous exchanges with the resident, however it is accepted from the landlord’s notes that was the case. However the landlord limited itself to referring the resident to the local authority, which was not adequate in the circumstances, given that the local authority would deal with the reports of noise nuisance against a different set of criteria to the landlord. Moreover, the landlord should have considered providing advice, and whether the barking would amount to nuisance, taking into account the number of dogs and use of the shared access area.
It was not appropriate that the landlord then closed the matter, without ensuring the matter had been resolved, as required by its complaints policy, and without addressing the issue of there being three gates for the resident to negotiate.
While the internal records of 9 November 2020 indicated it had considered there was no evidence of noise, this conclusion did not appear to have been communicated to the resident, nor was there evidence of the landlord having investigated the matter to any degree.
As a result of closing the case without communicating with the resident, the resident took the view the landlord had not responded to her reports, and therefore made a complaint on or just prior to 9 November 2020. Also, as a result of closing the case, the landlord, presumably working from memory, stated that at that point, it was not aware of previous reports of noise nuisance.
It was, however, appropriate that, on being contacted again on 9 November 2020, the landlord decided to speak to both parties again, and to investigate the erection of a gate.
It was reasonable to make an on-site visit. It was also reasonable and appropriate that, if delayed, the landlord reached an agreement with the neighbour that she would remove one of the gates, given the neighbour did not have a right to install it. Its decision to retain the other gate was reasonable as it could see the advantage of retaining it – and it was the third gate the resident was objecting to. While events after the conclusion of the landlord’s complaint procedure are outside the remit of this investigation, it is noted that there was a reasonable explanation for a short delay over the Christmas period in removing the gate. From that point of view, the issue regarding the gate was resolved.
The resident having raised the matter again with the landlord, the landlord’s response to the resident’s reports of the dogs congregating in the garden, and the noise was not appropriate. The landlord’s website currently suggests there are circumstances in which barking dogs would be treated as ASB, which if so, would give rise to further actions the landlord could consider taking. While it is not the role of the Ombudsman to determine whether or not noise nuisance or ASB occurred, its role is to assess how the landlord responds to reports made, and whether its responses are in accordance with its own policies and procedures and are appropriate and reasonable, in all of the circumstances.
The only evidence of the landlord’s responses to the reports, was to consider a referral to the local authority’s Environmental Health Officer (EHO) regarding statutory noise nuisance, and to state what it would not do, namely not ask the neighbour to soundproof her property. Even though the neighbour had permission to keep dogs, the landlord needed to consider whether the dogs caused nuisance to the resident. There was a dispute as to how the neighbour controlled her dogs, whether she allowed them to roam free on the shared pathway or failed to clear up after them. While a landlord may be faced with two conflicting versions of events, and even though the neighbour had been permitted to keep six dogs, that is a large number of dogs in a residential property.
The complaints policy required the landlord to understand a complaint from the complainant’s point of view. While there was no evidence that the neighbour had a dog walking business, and there was no further mention of this by the resident, the Ombudsman would have expected the landlord to investigate the resident’s reports further, and if appropriate, to consider mediation, to offer diary logs, to consider a Noise App, if that were available to it, to make enquiries with other neighbours, who might also be affected. If it did not identify ASB, or was limited in its options to take action, it should provide a clear explanation to the resident.
While there was no conclusive evidence of noise nuisance, the landlord’s failures in service meant that the resident was unclear as to its position and whether matters would be addressed, which would have caused uncertainty and frustration for her.

The landlord’s complaint handling.

While the report sets out a chronology, it would be useful to summarise the complaint timeline. The landlord provided a timeline but without dates, and its process was carried out by telephone. The landlord did not provide the telephone notes to this service. It was therefore difficult to follow the history and progress of the resident’s complaint. A complaint was raised on or before 9 November 2020. While the complaint was referred to in an internal email of the landlord, it was not provided to this service. The resident chased her complaint on 16 November 2020. According to the landlord’s records, the landlord discussed the complaint with the resident on 16 November 2020 which discussion focused on the gates and nuisance caused by the dogs using the shared pathway. There is no evidence of a written response to the complaint. Equally, the evidence shows there was a telephone conversation between the resident and the reviewing complaints officer, no telephone note was provided to this service. The landlord’s written second stage response 10 December 2020 merely stated that it had closed the complaint.
The landlord dealt with both stages of the complaint on the telephone, and no notes were provided. This was not satisfactory. The Ombudsman would expect to see a clear trail of the complaints process, preferably with written responses. While it is clear the landlord was satisfied it had addressed the resident’s complaint by securing the agreement from the neighbour to remove the gate, it was not clear what its review of the complaint consisted of. Its responses only addressed part of the resident’s complaint, namely the gate, and not the dog nuisance the resident complained of, in particular the noise nuisance, and the dogs “congregating” in the path without leads. The need for good record-keeping is highlighted by the reviewing complaints officer not appearing to be aware of that aspect of the complaint, even though the resident had sent photographs of the dogs in order to illustrate her point.
The landlord’s complaint response was not adequate or appropriate. It did not explain why it closed the complaint initially. The lack of clarity in the process and the failure to address the dog nuisance resulted in the complaint not being resolved one way or another.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman’s Scheme, there was:
1. Service failure in relation to the resident’s reports of an erection of a gate and her reports of noise nuisance in relation to a neighbour’s dogs.
2. Service failure in relation to the landlord’s complaint handling.

Reasons

While there was an initial delay, the landlord addressed the issue of the gate by arranging for one gate to be removed and made a reasonable judgement to retain the second gate. However, the landlord failed to adequately investigate the resident’s complaint in relation to her reports of the noise and nuisance caused by the neighbour’s six dogs.
The process of the complaints procedure was not clear, due to the lack of written responses, and did not address all of the resident’s complaints.

Orders

The Housing Ombudsman orders the landlord to take the following steps within 28 days of this report:
1. Pay the resident £100 in relation to its failure to investigate the resident’s reports of nuisance caused by her neighbour’s dogs.
2. Contact the resident by phone or home visit to check the current position in respect of the dogs and whether she has any current concerns. It should then confirm in writing this discussion and any further action agreed, including any planned investigation, with a clear explanation of any decisions, and provide a copy of this letter to the Ombudsman.
3. Pay the resident £75 in relation to its poor complaint handling.
The landlord is requested to confirm compliance with the above orders to the Housing Ombudsman.

Recommendation

The landlord should consider responding to all complaints in writing so that the resident can identify a clear complaints pathway. Even if the landlord concludes that a written first response is not a good use of its resources, it should retain clear records of its telephone or face-to-face attendances, preferably followed with a summary in writing. The landlord should provide a full second-stage response, in writing, and ensure it has addressed all the issues raised in a complaint.
The landlord has informed this service that it does not have a pets policy, although there was a reference to such a policy in the resident’s tenancy agreement. It should therefore consider that it either adopts a pets policy or removes any reference to a pets policy in its documentation.
The landlord should consider improving its record-keeping systems so as to maintain a proper paper trail, and is referred to paragraph 3.10 of the Complaints Handling Code in relation to its record keeping. The Housing Ombudsman’s Complaint Handling Code (housing-ombudsman.org.uk)