Swan Housing Association Limited (202108977)

REPORT

COMPLAINT 202108977

Swan Housing Association Limited

9 February 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

This complaint is about the landlord’s handling of:
1. Reports of anti-social behaviour (ASB).
2. Reports of damage to the balcony floor.

Background and summary of events

Background

The resident is an assured tenancy of the landlord. The property is a 1-bedroom flat. The tenancy started in March 2009.
The landlord has no vulnerabilities recorded on its system for the resident. Within her correspondence, the resident referenced several medical conditions and disclosed she uses a walking aid.

Scope of investigation

The resident said she felt her landlord discriminated against her. We may not investigate matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, other tribunal, or procedure. This Service cannot determine whether discrimination has taken place, as this is better suited to a court to decide. However, we can look at whether the landlord responded fairly and appropriately to the resident’s concerns.
The resident said she has been impacted mentally throughout the complaint and this has affected her health and her sleep. The Ombudsman acknowledges the resident’s comments. However, as this Service is an informal alternative to the courts, it is unable to establish legal liability or whether a landlord’s actions or lack of action had a detrimental impact on a resident’s health. Nor can we calculate or award damages. The Ombudsman is therefore unable to consider the personal injury aspects of the resident’s complaint. These matters are better suited for consideration by a court or via a personal injury claim. Nonetheless, the Ombudsman has considered the distress and inconvenience that may have been caused to the resident.
In the resident’s correspondence, she referred to historical issues of ASB in the property going back to 2012. The Ombudsman encourages residents to raise complaints with their landlords in a timely manner, which would normally be within 6 months of the matters arising. This would ensure the landlord has a reasonable opportunity to consider the issues whilst they are still ‘live,’ and whilst the evidence is available to reach an informed conclusion on the events which occurred. As the issues become historical, it is increasingly difficult for either the landlord, or an independent body such as the Ombudsman, to conduct an effective review of the actions taken to address those issues.
Considering the above, this determination is limited to events from April 2020 up to the date of the landlord’s most recent stage 2 response letter dated 6 January 2023. This is a reasonable timeframe to consider in the circumstances and considers events 6 months before the resident made her initial complaint in October 2020. Historical events may be referenced for context only.
Within the resident’s correspondence, she expressed concerns about the landlord’s handling of reports of pigeons and mice within the property. This complaint subject has not been considered by the landlord through its internal complaint procedure. The landlord needs to have an opportunity to investigate and formally respond to this concern. Therefore, it is not something that this Service can consider within this investigation. It is open for the resident to contact the landlord directly and raise a separate complaint about this.

Relevant policies, obligations, and laws

Section 11 of the Landlord and Tenant Act 1985 places a statutory obligation on the landlord to keep the structure and exterior of a property in repair.
The landlord’s hate crime and anti-social behaviour policy states:
1. It is committed to tackling ASB in a responsive, proportionate, and robust way.
2. It aims to work in partnership with other agencies to adopt a problem-solving approach to effectively tackle hate crime and harassment and ASB regardless of tenure.
3. It recognises that some behaviour may have an impact on individuals but would not be classed as ASB or considered under the hate crime/ASB policy. These include:
  1. Daily living noise, such as talking, babies crying, normal use of kitchen and bathrooms, people walking around, doors and cupboards being opened and closed, using domestic appliances, or carrying out DIY at reasonable times during the day.
  2. Children playing in their homes at reasonable times.
4. It will investigate reports of hate crime or ASB by using all methods available through the development of a tailored action plan. This will include speaking to those involved and gathering evidence to help the landlord identify which tools and/or powers would be the most appropriate to use.
The landlord’s customer service policy (November 2020) has a 3 stage complaints process. Informal response may be resolved quickly and without a written response. The landlord will respond to a complaint within 6 working days when possible. The policy was updated in January 2021 where it specified a response timescale of 15 working days at stage 2.
The landlord’s updated complaints procedure (September 2022) sets out a 2 stage complaints process. It aims to issue a response within 10 working days, with a further extension of 10 working days if required. At stage 2, it aims to respond within 20 working days. If unable to respond within this timeframe, it will contact the resident to advise of its expected response date.
The landlord’s compensation procedure sets out a matrix where it can offer up to £500, depending on the landlord’s responsibility and impact on the resident. Payments exceeding £500 must be authorised by a director/assistant director.

Summary of events

The landlord wrote to the resident on 26 October 2020. It said:
1. It was sorry to hear the resident was not satisfied with the response she received to her ongoing reports of items being deliberately thrown onto her balcony from the tenants situated above. It recognised she had complained on 20 October 2020.
2. CCTV was to be installed on the balcony to try to gather evidence. It would consult with its CCTV operators and make necessary arrangements.
3. Mediation was discussed, but the offer of mediation was not something the resident wanted to explore.
4. It discussed the resident’s concern over staff attitude and apologised if the resident felt the service received was not appropriate. It said calls were not recorded so it was unable to investigate this further.
5. It discussed whether alterations could be made to the balcony above to stop things falling between the slates. It would discuss this with a manager.
This Service has no evidence of what happened between 26 October 2020 and April 2021.
In April 2021, the landlord wrote to the resident’s neighbour asking her to remove items from her balcony, including netting.
Covert CCTV was installed on the resident’s balcony on 17 May 2021.
On 7 June 2021, the landlord’s solicitor wrote to the resident’s neighbour about the items on the balcony.
On 23 June 2021, the landlord advised the resident that contractors had reviewed the CCTV footage from her balcony and confirmed nothing was thrown during the period the camera was in-situ. The landlord agreed to speak with the neighbour about the netting as the resident reported it was still hanging down.
This Service contacted the landlord on 4 August 2021. We asked the landlord to contact the resident directly and provide a written response to her complaint, in line with the Ombudsman’s Complaint Handling Code. It called the resident on 9 August 2021 to discuss her complaint.
The landlord issued its stage 1 response on 11 August 2021. It said:
1. In May 2020 and June 2020, the resident reported that her neighbours were feeding the birds and items such as tissues, wipes, pegs, and cotton buds were being thrown onto her balcony. She also reported a bird’s nest on her neighbour’s balcony and suspected mice in the ceiling.
2. It had spoken to the neighbour twice and appointed pest control. It was unable to obtain evidence of a bird’s nest.
3. In July 2020, the resident told the landlord that although matters had improved regarding items thrown onto her balcony, she still wanted it to be addressed. The landlord said evidence would be required if further action was to be taken. The resident did not agree to CCTV cameras at this time.
4. Around September 2020, the resident reported further instances of items being thrown on her balcony, such as half an onion. It offered to install CCTV to capture evidence, but the resident refused.
5. In October 2020, the resident complained about how her ASB concerns had been managed. The landlord responded to this via its informal complaint process. During a discussion on 26 October 2020, the resident agreed for CCTV to be installed. The landlord issued a letter explaining the next steps.
6. The installation of CCTV was put on hold due to the COVID-19 lockdowns.
7. In December 2020, the landlord followed up with the resident to which she reported no further items had been thrown onto her balcony. It advised no works could be carried out to the balcony as the gaps were part of the design to ensure rainwater could drain away.
8. In April 2021, the resident reported further items being thrown onto her balcony and that the neighbours had plastic sheeting/netting on the balcony. It agreed to install CCTV and to contact the neighbours to remove the items.
9. A CCTV camera was installed from 17 May 2021 – 1 June 2021. The engineer said the resident did not provide diary sheets and had only been on the balcony twice while the camera was in place. After a further review of the footage, no evidence of ASB was identified.
10. On 3 June 2021 and 9 June 2021, the resident reported the neighbour still had netting up and was stamping. It agreed to escalate action to remove items from the balcony and offered to install a noise machine which the resident refused.
11. On 8 July 2021, the resident reported that pink jelly and a glass which had then smashed had been thrown onto her balcony. On 16 July 2021, the resident reported that a liquid had been thrown onto the balcony which she had reported to the police on 12 July 2021. The resident said she had not received a response from the landlord. It apologised for this and said it was still waiting for a response from the police which had been chased.
12. It was sorry a member of staff informed the resident that it would never prosecute the neighbours. The landlord explained it needed evidence to support any legal action and it should have been explained in this way instead. Coaching was provided to the staff member as a result.
13. Following a further conversation with the neighbour, the last piece of netting was removed from the balcony on 6 August 2021.
  1. Prior to the incident reported on 8 July 2021, it was satisfied appropriate action had been taken. The resident confirmed that the issues with feeding birds and birds’ nest ceased, the netting and plastic sheeting had been removed and it had not been able to establish that the items thrown or pushed onto the balcony had been carried out deliberately. As such it had no evidence to support further tenancy action.
14. Recent incidents involving the smashed glass, liquid and intimidating stamping had yet to be addressed with the neighbour, despite attempts to contact them.
15. A formal ASB case had been opened and a fixed point of contact had been provided. It outlined possible options going forward.
16. Considering the delays, it offered £50 compensation.
The landlord spoke to the resident on 24 August 2021 and wrote to her setting out an action plan to:
1. Open an ASB case to monitor.
2. Visit the neighbour at home, interview them and issue a warning.
3. Install CCTV for a further 4-week period. This would be on the basis that the resident supports the footage review by providing diary sheets of incidents as they occur.
4. Install a noise machine.
It also asked the resident to report incidents to the police, to keep a record of reference numbers, and to keep a record of incidents noting the date, time, and place. It asked the resident if it could obtain a witness statement from her and advised that the police had closed the case from July 2021 due to a lack of evidence.
The landlord records from 27 August 2021 demonstrate it completed a risk assessment.
Contractors advised the landlord on 6 September 2021 that the resident informed them she did not consent to CCTV being reinstalled on 1 September 2021.
The resident escalated the complaint to stage 2 on 6 September 2021. She outlined the history of her complaint and said:
1. She felt staff members were mocking her mental health and not taking her reports seriously.
2. The incidents she had experienced since 2012 had a serious impact on her health. She felt the landlord’s staff had covered up the incidents.
3. She felt that keeping a record of incidents during the period CCTV was installed would be doing the contractors job for them, which she was unable to do.
4. It did not matter how many times the contractor saw the resident go on her balcony during the period the CCTV was in place as she could see everything from inside her home.
5. When she made her first complaint, the neighbour’s husband challenged and intimidated her.
6. The neighbour’s property was overcrowded, with 2 adults and 2 children in a 1-bedroom flat.
The landlord interviewed the neighbour on 13 September 2021. It updated the resident and reminded her that it wanted to take a witness statement.
This Service has been provided with 2 copies of the landlord’s stage 2 response, dated 20 September 2021 and 28 September 2021. These said:
1. The stage 1 response and action plan outlined its actions in response to the resident’s concerns.
2. It can be difficult to prove a nuisance case where the noise experienced could be interpreted as daily living noise, whilst the design of the balcony with gaps in the wooden slats may mean small items could fall through.
3. Since agreeing the action plan, it had spoken with the neighbour and issued them a letter to remind them of their tenancy conditions.
4. The police confirmed they would not be taking any action regarding the incident reported by the resident on 12 July 2021.
5. Its CCTV contractors contacted her on 1 September 2021, but the resident advised she did not want CCTV to be installed. The resident could contact it should she change her mind, and the option of a noise machine and mediation remained available.
6. It had contacted the resident to arrange to take a witness statement as without Police, CCTV, or noise recording evidence it would need to rely on the resident’s statement to take any further action. This would be reviewed by its solicitor to ensure the evidence meets the threshold to commence legal action.
7. It was sorry the resident’s mental health had been impacted. It explained staff needed to remain impartial and make decisions based on the evidence available.
8. It found no evidence that its staff lied or falsified evidence.
9. It confirmed the resident was told that she could not have a rug or netting on the balcony. However, an agreement was made with the neighbour that they could use a mat whilst using the balcony as this might limit unwanted items falling. However, it must be taken inside when the balcony was not in use. This option was also offered to the resident.
10. It could not discuss the neighbour’s circumstances but advised there was a high demand for family accommodation in the area and the average waiting time was 11 years.
11. It recognised the impact on the resident and offered a goodwill payment of £175 to resolve her dissatisfaction with historical incidents and responses from staff.
The resident reported an incident of stomping on 19 October 2021. Between October 2021 and December 2021, the landlord evidenced it contacted the resident several times to obtain a witness statement with no response. As there was no contact from the resident and no further reported issues, the landlord closed the case.
In April 2022, the resident reported items being dropped onto her balcony and loud intermittent banging from the upstairs property. The landlord asked for photos of the items and enquired whether the resident would agree to the installation of a noise machine or to use a noise app to record the disturbances.
The resident said she would not use her electric for a noise machine and explained she did not respond to previous emails from the landlord as she needed to distance herself from the situation. She said netting was back on the neighbour’s balcony. The landlord asked the neighbour to remove this.
In August 2022, the resident contacted the landlord to report that her neighbour was feeding pigeons, causing faeces on her wall and balcony. She also reported banging and a handwritten note that was allegedly pushed down from the balcony above.
In August 2022, the resident told the landlord that she was verbally abused and nearly attacked by the main entrance door. The landlord contacted its CCTV engineer to request camera footage and made enquiries with the police. It also chased pest control for it to respond to the resident’s concerns.
The landlord chased the CCTV engineer on several occasions throughout September 2022. It also communicated with the police regarding the incident and updated the resident.
On 3 October 2022, the resident chased for an update. She asked the landlord who was responsible for repairing her damaged balcony flooring. The landlord responded the same day to explain pest control had attended the upstairs balcony and said there were no bird nests. It asked for a photo of the damaged balcony flooring and said CCTV engineers were due to review the footage.
On 20 October 2022, the CCTV engineer advised the landlord that the incident was not captured on CCTV. On 21 October 2022, the landlord contacted the police and requested an update into their investigation. It updated the resident and asked her again to send a photo of the damaged balcony flooring.
The resident raised a complaint on 21 October 2022. She said:
1. The incident from 2021 was not investigated properly.
2. She was told the CCTV was working at the time of the incident in August 2022.
3. She reported issues with nesting pigeons months before pest control attended.
4. She has had over 10 years of issues including items being dropped onto her balcony, feeding pigeons, and stamping very loudly.
5. She had been lied to, discriminated against, and insulted by staff.
The landlord acknowledged the complaint at stage 1 on 24 October 2022.
The resident submitted a photo of the damage to the balcony. This was sent to the property services team on 25 October 2022.
The landlord issued its stage 1 response for the second complaint on 26 October 2022. It summarised recent events and said:
1. The neighbourhood officer and ASB officer investigated each allegation in line with its policy and procedure, sent updates and responded to the resident when she contacted them.
2. It would continue to collaborate with the police and take appropriate action when it had the evidence to do so.
3. It reiterated its previous offer to install noise monitoring equipment and CCTV on the balcony.
4. Future issues should continue to be reported.
5. The complaint was not upheld.
On 27 October 2022, the landlord updated the resident. It said the property services team did not identify anything of concern in the photo submitted by the resident. It offered to inspect the balcony flooring the following week. The same day, it chased the police for an update.
The resident escalated her complaint on 8 November 2022. She said:
1. She had experienced issues since 2012 and outlined these.
2. The ASB incident from August 2022 was not investigated by the landlord even though she gave evidence over the phone. Witnesses provided statements to the police.
3. She received a bundle of ASB information, but it was too much to read.
4. Staff ‘‘downplayed’’ her experience.
5. She was paying for a service that did not work (the CCTV).
6. There were long delays sending pest control to investigate and by the time they attended, there was no evidence of nesting pigeons.
The police updated the landlord on 30 November 2022 regarding their investigation, responses from witnesses and the next steps it would be taking. The landlord informed the police it would issue the neighbour with an ASB warning.
The landlord extended the response date for its stage 2 response on 21 December 2022 and advised the resident of this.
The landlord issued its stage 2 response on 6 January 2023. It said:
1. It encouraged the resident to report any further incidents straight away.
2. It wanted to install a temporary camera on the resident’s balcony and noise monitoring equipment in her home.
3. It offered mediation and could arrange this so the resident and her neighbour would be in separate rooms.
4. It understood it was disappointing that the CCTV footage was not available. It confirmed the CCTV around the block was now working.
5. It explained if her neighbour wanted to move, they would need to make an application for rehousing.
6. It recognised there were delays responding to the resident on some occasions and so it offered £50 compensation.

Events after the end of the landlord’s internal complaint procedure

The landlord wrote to this Service on 29 August 2023 providing an overview of events. It explained it recognised that in this case there was a service failure in relation to the CCTV camera that was not working, and at times it was delayed in responding to the resident. As such, it increased its offer of compensation to £875.
On 1 September 2023, the landlord wrote to the resident. It asked if she was still experiencing problems with her neighbour and said it could:
1. Open an ASB case.
2. Arrange a home visit to discuss the case and take a witness statement.
3. Install noise equipment and CCTV to assist in gathering evidence.
4. Send her its ASB app which allows her to keep diary sheets and record evidence in one place.
It also said had arranged for regular patrols of the block. It reviewed the compensation previously awarded but said this was not paid as it did not receive the resident’s bank details. After further consideration, it offered to increase the compensation by £650 for the inconvenience experienced, making a total compensation award of £875.

Assessment and findings

Where there are admitted failings by a landlord, the Ombudsman’s role is to assess whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In investigating this, the Ombudsman considers whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: be fair, put things right and learn from outcomes.

The landlord’s handling of reports of anti-social behaviour (ASB).

It is clear from the resident’s submissions that she has been distressed by the situation and she believes this distress has been exacerbated by the lack of strong action by the landlord to tackle the problem. The resident’s feelings are duly acknowledged, and it is not disputed that dealing with the incidents would have been stressful for the resident.
However, the Ombudsman’s role in such situations is not to investigate the actual ASB itself, but to look at how the landlord responded to the resident’s reports and her concerns. It is important to note that it is not the purpose of this report to investigate the severity of the incidents or to assess the credibility of the resident’s reports. Our role is to consider the landlord’s response to the reports it received and consider whether its response was reasonable in the circumstances, in accordance with its policies and its obligations under the tenancy agreement and any relevant legislation.
A landlord cannot take any formal action against alleged perpetrators of ASB, such as an injunction or eviction, without strong supporting evidence to show the behaviour is serious and prolonged. In this case, it is evident the landlord took reasonable steps to investigate and obtain evidence in line with its ASB policies. It repeatedly offered the installation of a noise recorder and CCTV, the use of a noise app/diary sheets and asked the resident to provide a witness statement.
Evidence demonstrates the landlord spoke to the neighbour on several occasions, conducted a formal interview with the neighbour, took action for the neighbour to remove items from the balcony, encouraged the resident to contact the police and to continue to report all incidents, and arranged for an inspection by pest control. It also completed a risk assessment.
A landlord would also be expected to show the court that it had attempted to resolve the matter informally such as through mediation or tenancy warnings before taking legal action and had worked with other agencies such as the police. The evidence demonstrates that it had offered mediation to the resident and consulted with the police in an attempt to resolve matters.
It is noted the resident refused to have noise monitoring equipment installed and did not allow CCTV to be installed for an additional period. Additionally, she did not respond to the landlord’s repeated attempts to obtain a witness statement from her. The Ombudsman is not questioning the reasons why the resident refused to engage with the landlord in terms of obtaining evidence. However, the landlord would not typically be responsible for any delays caused in this instance. The Ombudsman is satisfied from the evidence available that the landlord managed the resident’s expectations and clearly set out why it needed evidence.
The landlord recognised there were delays responding to the resident on occasion and miscommunication from its staff in terms of a staff member stating the landlord would not prosecute the neighbour. The landlord acted appropriately by reviewing the communication records, discussing the matter with the resident, and speaking with the staff involved. It apologised to the resident for miscommunication, identified learning, provided training, and clarified its position with the resident. This is what the Ombudsman would reasonably expect in the circumstances, in line with our dispute resolution principles.
The landlord offered £175 compensation in the first complaint and £50 in the second complaint – a total of £225. The Ombudsman’s remedies guidance (available on our website) sets out 3 compensation ranges we consider when determining cases. The compensation of £225 falls into the range where they have been instances of service failure that may have had an impact on the resident but may have not significantly affected the overall outcome for the complainant. Considering the circumstances of this case and the evidence available, the Ombudsman finds the landlord offered appropriate compensation in line with our guidelines for the failures identified.
The landlord increased its compensation award from £225 to £875, around 8 months after it issued its second stage 2 complaint response. It is a concern that this offer was made significantly after the end of the landlord’s internal complaints process. This approach opens questions as to how effectively the landlord is using its complaints process to offer redress and whether resolutions are only being considered in greater depth once a resident has brought a complaint to the Ombudsman. The landlord did not provide a concise breakdown of how it calculated its increased offer. Therefore, it is difficult for the resident and the Ombudsman to understand its decision making here.
The Ombudsman is unable to assess whether the lack of CCTV evidence in relation to the incident in August 2022 impacted the landlord’s actions in its response to the resident’s reports of ASB. Moreover, it is noted that even without the CCTV evidence, the police and landlord intended to take action.
After considering all the evidence available, the Ombudsman has made a finding of reasonable redress for the £225 initially offered by the landlord. The landlord is therefore recommended to pay this sum to the resident in accordance with our finding.
The landlord’s increased offer exceeds what this Service would recommend in the circumstances. Nonetheless, as this has already been offered to the resident and her expectations have been raised, it would be good practice for the landlord to pay the £875 in full.

The landlord’s handling of reports of damage to the balcony floor

In accordance with the Section 11 of the Landlord and Tenant Act 1985, the landlord is obligated to keep the structure and exterior of a property in repair. This would include the balcony. It was therefore necessary for the landlord to investigate the resident’s report of damage to the balcony floor. From the limited information available, it is unclear whether the resident was reporting general damage to the flooring or if she felt this was caused by ASB.
The landlord responded appropriately to the resident’s concerns regarding the balcony floor by obtaining a photo from the resident and submitting it to its property services team. It is recognised that the property services team identified no faults with the flooring. Even so, the Ombudsman finds it was appropriate in the circumstances for the landlord to schedule an appointment to review the flooring in person, to assess if there were any issues that may not have been observed in a photo. It is unclear whether the resident agreed to this appointment.
Based on the evidence available, the Ombudsman has identified no maladministration in the landlord’s handling of a report of damage to the balcony floor.

Determination (decision)

In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, there was reasonable redress in the landlord’s handling of reports of ASB.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of reports of damage to the balcony floor.

Reasons

There were service failures, such as delays responding to the resident and miscommunication from the landlord’s staff. The landlord has explained to the resident how it will acknowledge and respond to her reports of ASB going forward. The Ombudsman is satisfied that the landlord has conducted a reasonable investigation into its actions and provided appropriate compensation in line with our remedies guidance.
The landlord responded appropriately to the resident’s concern over her balcony flooring by referring to the property services team and arranging an inspection.

Recommendations

It is recommended for the landlord to pay the resident £225 compensation as per its initial offer (if it has not done so already).
It is recommended for the landlord to pay the resident £650 as per its correspondence dated 1 September 2023 (if it has not done so already).
It is recommended that the landlord contacts the resident to discuss any vulnerabilities she may have and updates its internal records accordingly, subject to any data protection requirements.
The landlord should contact this Service within 4 weeks, setting out its intentions regarding the above recommendations.