Thames Valley Housing Association Limited (201912488)

REPORT

COMPLAINT 201912488

Thames Valley Housing Association Limited

25 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

This complaint is about:
1. The resident’s liability to pay for some of her service charges.
2. A legal charge against the resident’s property.
3. The landlord’s handling of the resident’s reports of anti-social behaviour (ASB) by her neighbours.
4. The landlord’s response to the resident’s allegations of racism by its staff.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.

The resident’s liability to pay for some of the service charges.

Paragraph 39(i) of the Housing Ombudsman Scheme (the Scheme) states the Ombudsman will not consider complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.
On 31 May 2019, the resident complained to the landlord that, since a 2005/2006 judgement by the First Tier Tribunal regarding her liability to pay estate service charges, the landlord has continued to charge her.
On 17 July 2019, the landlord issued its stage one response in which it said that it had reviewed the resident’s charges and acknowledged that it had incorrectly charged the resident for some items for which it apologised and that a credit adjustment for £640.58 had been applied to her service charge account.
On 9 September 2019, the resident again wrote to the landlord saying that one of the communal grounds’ items related to tilling and that there were no tiles outside the shared area. The matter was addressed in the landlord’s final response to a subsequent complaint made by the resident, which the landlord issued on 18 March 2021.
In its final response of 18 March 2021, the landlord acknowledged that the resident had been incorrectly charged a block cost for bulk rubbish and for a fire risk assessment for which it apologised, acknowledged that this was an error and offered the resident £20 compensation for her time and trouble in relation to this. The landlord confirmed it would ensure that these charges were removed and the £7.62(bulk rubbish) and £73.58 (fire risk assessment charges) were credited to her service charge account. The landlord also responded to the resident’s concerns about her liability for a communal ground tiling charge, explaining that this charge related to ceramic tile replacement in the external communal area and therefore was chargeable as a communal repair which the resident was obliged to contribute to in accordance with her lease.
When the resident referred her complaint to this service she confirmed that she remained dissatisfied with the landlord’s response as it had continued to charge her for items she had not been liable for since 1998 when she moved into the property.
Complaints that relate to the level, reasonableness, apportionment, or liability to pay service charges fall within the jurisdiction of the First-Tier Tribunal (Property Chamber). In order to decide liability a tribunal also decides whether service charge costs have been reasonably incurred and if so whether the standard of any services or works for which the costs are charged is reasonable.
As the resident is challenging her liability to pay for some of the charges included in her service charge account, this complaint is a matter for the First-Tier tribunal to consider. Therefore, in accordance with paragraph 39(i) of the Scheme, this complaint is outside the jurisdiction of the Ombudsman.

A legal charge against the resident’s property.

Paragraph 39(h) of the Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern matters that are, or have been, the subject of legal proceedings and where a complainant has or had the opportunity to raise the subject matter of the complaint as part of those proceedings.
The resident wrote to the landlord on 9 September 2019 to say that in order to resolve an outstanding complaint the landlord should write off a £6,915.66 legal cost order and instruct its solicitors to remove the charge against her property on the Land Registry.
On 28 September 2020, the resident wrote to the landlord to acknowledge that it had agreed to waive the interest on the cost order, for which she was grateful, and that she would be willing to pay £1,000 followed by £50 monthly payments if the landlord was, in turn, to remove the charge from her Land Registry records as it unfairly affected her credit score.
In its stage one complaint response of 6 November 2020, the landlord advised that its Revenues and Central Home Ownership teams were considering her request.
In its final response of 18 March 2021, the landlord confirmed that the cost order which had been awarded by the High Court in 2007 had now been fully paid, the charge placed against her property at the Land Registry was to be removed and that it would not be refunding the cost order as it was the resident’s obligation to pay.
When the resident referred her complaint to this service she confirmed that she remained dissatisfied with the landlord’s response saying that the legal charge against her property was illegal and the landlord should refund the £6,915.66 in full and apologise.
The cost order the resident is challenging relates to legal proceedings in 2007. As this order is a consequence of a court process, the Ombudsman cannot consider this complaint further. It is not the role of the Ombudsman to review any court orders for costs or any action taken by the Landlord to recover those costs such as a charge against the property as these are matters for the court to consider. If the resident had concerns about the legality of the costs, she had the opportunity to raise these matters through the court process.
Having reviewed all the evidence relating to this complaint, and as all the evidence relates to matters that have been the subject of legal proceeding, I can confirm that under Paragraph 39(h) of the Scheme, the Ombudsman cannot investigate any element of this complaint.

Background and summary of events

The resident is a shared ownership leaseholder of the landlord. The property is a ground floor flat. The lease commenced on 28 January 1998.
On 31 May 2019, the resident complained to the landlord about what she described as a ‘history of abuse’’ going back to 2006, by the neighbour in the flat above, which she said was racially aggravated and which the landlord had failed to address. That her property manager had made unfounded accusations which the resident said were discriminatory and for which landlord had failed to provide a response and apologise. Following what the resident described as an act of vandalism targeted at her, the entry system to the garden either did not work or the gate had been left open by gardener or other residents.
The landlord issued its stage one response on 17 July 2019 in which the landlord said that:
1. Given that the allegations of antisocial behaviour date back to 2006, more than 10 years earlier, this was not something it could consider under its complaints process.
2. If the resident was still experiencing ASB or felt targeted she should ensure that she reports such incidents to the police.
3. That the resident’s allegations of discrimination by her Housing Manager date back to 2015, that the landlord had investigated the resident’s allegations at the time and found no evidence to support the resident’s claims.
4. That it takes allegations of discrimination very seriously and if the resident was making a new allegation asked that she provided current information which it would be happy to review.
5. With regards to the resident’s report that the side gate was not working or had been left open, it would remind its grounds maintenance team to shut the gate, write to all residents to remind them to lock it and would ask that her property manager inspect the lock when she returned from leave and to raise a repair if it was broken.
On 9 September 2019, the resident wrote to the landlord to say that she did not agree with its stage one response.
21 January 2020, the landlord wrote to the resident, following her email of 9 September 2019 to ask if she could confirm whether the complaint was dealt with or if she still had any outstanding issues. There is no evidence of the resident responding to the landlord’s email of the 21 January 2020, nor of the resident pursuing her complaint at that time.
On 29 July 2020, the resident wrote to the landlord to report what she described as harassment by the residents of four neighbouring properties. The resident reported that:
1. About a month ago she had heard one of her neighbours refer to her as a ‘‘mad woman’’, that their children were causing a nuisance running and screaming in the car park when there were playgrounds about five minutes’ walk away, some play equipment had been left in front of her windows, some children had on numerous occasions squatted under her bedroom window with their father encouraging them to be a nuisance and harrassing her.
2. That two male neighbours had stood at the edge of the footpath and stared at her kitchen window,
3. That another neighbour, in the flat above, who she had previously complained about was knocking on her ceiling and violently banging.
On 21 August 2020, the landlord responded to the resident’s letter of 29 July 2020.
1. The landlord said that it was sorry to learn that the resident felt harassed by her neighbours and advised that activities that amounted to harassment should be reported to the Police. However, based on what the resident had described the landlord said that it was difficult to establish whether harassment existed or whether this was a case of neighbours who struggle to co-exist.
2. The landlord went on to explain that whilst children playing in the car park was unsafe, such activities or adults having conversations near to the building were not matters it would take action on.
3. The landlord also noted that the resident had related a more recent incident, of her upstairs neighbour knocking on her ceiling, to one that had happened more than 10 years ago and therefore it was unable to agree with her that the most recent incident reflected a pattern of behaviour that could constitute harassment.
4. The landlord asked that the resident keep a log of incidents, including the time date, the parties involved, a description of what happened and the impact this had had on her, so that her concerns could be reviewed further. The landlord also asked that if the resident was in contact with the Police and if so that she provide their contact details so that it could, with the resident’s permission, discuss this further with the Police.
5. In response to the resident’s suggestion that her neighbours’ action against her were racist, the landlord advised that this was a matter for the Police too, as was the alleged harassment, however, a detailed log of these incidents would assist the landlord in understanding what was happening and whether there was any action that it could take.
6. The landlord ended by saying that it was concerned that the resident felt upset by the matters she referred to in her letter and asked whether she had access to any additional support and whether it would be appropriate for the landlord to signpost her to agencies that may be able to assist.
Following contact from the resident, this service wrote to the landlord on 2 October 2020 to advise that the resident had said that she had made a formal complaint to the landlord but had received no response. The landlord was asked by this service to log this matter under its formal complaints process if it had not done so already.
The landlord’s issued its stage one response on 6 November 2020, referring the resident to its response of 21 August 2020, which it said addressed the issues the resident had raised in her letter of 29 July 2020.
1. The landlord said that as the areas around the building were communal it could not require her neighbours to refrain from being in that area and that if she felt that there was criminal activity occurring, as it had explained in its correspondence of 21 August 2020, she should report this to the Police.
2. Whilst the videos that the resident had sent on 5 October 2020 showed that beds the communal area had been dug up, this was likely to be the behaviour of foxes and it was unable to agree that the video provided evidence of action by certain neighbours nor that the holes dug might undermine the safety of the building itself.
3. The landlord also referred to the photos the resident had sent on 5 October 2020 which the landlord noted showed some minor injuries to her hand, but had no further information attached. The landlord invited the resident to provide some context for the photos if she still required a response regarding this.
On 4 January 2021, the resident wrote to the landlord to escalate her complaint. The resident said that whilst the historic ASB was responded to by the landlord on 17 July 2019, the landlord failed to take any action against her neighbours who she said continued with their racially aggravated harassment and violent behaviour. The resident referred to her neighbour violently throwing furniture on the floor in the middle of the night on New Year’s Day 2021 and that they had also thrown something heavy on their floor above her living room ceiling around the same time, which made the whole flat vibrate and caused a crack in the corner of the living room. The resident also made further allegations about her property manager saying that they had made racially aggravated and unfounded accusations about her.
The landlord acknowledged the resident’s escalation request on 19 February 2021, in which it apologised that the resident’s email of 4 January 2021 had not been acknowledged. The landlord explained that this was due to the email being sent to a member of its staff who had since left the organisation.
On 18 March 2021, the landlord issued its stage two and final response.
1. With regards to the resident’s reports of ASB, the landlord:
  1. Said that it was sorry to hear that the resident was affected by noise from her neighbour on New Year’s Eve and 1 January 2021 and that it had contacted the neighbour who denied that there was noise from their flat. The landlord also suggested that the resident download the Noise App so it could assess the level of noise from the neighbours flat and advise on the appropriate course of action.
  2. Said that the resident’s earlier reports of ASB had been fully responded to in its stage one response and that it was satisfied that these had been dealt with in accordance with its process.
  3. Suggested that the resident keep a log of any further ASB which she should report to her property manager for investigation, noting that it did not currently agree with the resident’s view that the neighbour’s behaviour constituted violent behaviour or harassment. The landlord also reiterated that the resident should report such incidents with the Police and provide it with the crime reference number so that it would then work with the Police and where required, take action against the alleged perpetrator.
2. With regards to the resident’s allegation that her property manager had been racist in their approach, the landlord said that the resident had not provided any information that supported her claims, any letters sent by the property manager had been sent in line with its policies and procedures and that the resident’s allegations had been fully investigated at stage one of her previous complaint and found no grounds for racism, a position which the landlord still maintained.
3. With regards to the alleged structural damage in the corner of the resident’s living room, which the resident had said had been caused by her neighbour, the landlord said that whilst the damage to the corner of the resident’s living room ceiling was likely to be a hairline crack in the plaster, which would normally be the responsibility of the leaseholder to repair, it would arrange for a surveyor to inspect her property to double check that was the case. It also provided the resident with a copy of its insurance policy should she wish to make a claim.
The resident referred her complaint to this service on 28 March 2021 explaining that she was not happy with the outcome, stating that:
1. The landlord had failed to take appropriate action with regards to her reports of ASB by her neighbours.
2. The property manager had been racist in making malicious accusation about her and when they attempted to visit her with the Police in 2009.

Assessment and findings

The landlord’s ASB policy states that it is committed to respond to reports of ASB in a timely manner, based on risk, to use its professional judgement as to whether reports of ASB can be reasonably investigated and resolved, to undertake action that it reasonable and proportionate and be clear with customers on the range of interventions and solutions available.
The Policy list a number of examples of behaviour that would be treated as ASB including: Extreme noise that is persistent, actual violence/threats of violence against people or property, verbal abuse, harassment, intimidation or threatening behaviour. The Policy goes on to state that the initial assessment for reports meeting the ASB threshold will determine case priority, response times and frequency of contact. Where the initial reports do not meet the threshold, the landlord may ask for more information.
The policy goes on to state that the landlord will encourage residents to report all crimes to the Police, take responsibility for minor personal disputes with their neighbours and try to resolve such problems themselves in a reasonable manner, to respect other peoples’ right to their chosen lifestyle and everyday reasonable level of disturbance and to work with the landlord to resolve disputes/issues by reporting incidents, providing witness statements etc.
Under the terms of the lease, the resident is responsible for the maintenance and repair of the internal walls and ceilings, including plaster.

The landlord’s handling of the resident’s reports of anti-social behaviour (ASB) by her neighbours.

The role of the Ombudsman is to investigate the landlord’s response to the resident’s reports rather than to establish who was responsible for any anti-social behaviour. In determining whether there has been service failure or maladministration, this report has considered what the landlord was committed to do under its ASB policy and whether it behaved in a manner that was fair and reasonable in all the circumstances.
When the resident initially contacted the landlord in May 2019 she complained about incidents of ASB which she said dated back to 2006 but neither referred to any reports made more recently nor made any new reports. As the resident was not reporting any more recent, current or ongoing issues it was reasonable for the landlord not to take any further action at that time, as it said the resident’s historic reports had been previously investigated, and to advise the resident that if she was still experiencing targeted ASB she should ensure that she reported any harassment incidents to the police.
With regards to the resident’s report of issues with the gate being left open, the landlord said that it would remind its grounds maintenance team, write to all residents to remind them to lock it and would ask that her property manager inspect the lock when she returned from leave and to raise a repair if it was broken. As there was no evidence to suggest that this was a targeted attack on the resident, these were reasonable and proportionate steps for the landlord to take.
There were then no further reports made by the resident regarding her neighbours until 29 July 2020, over a year later when the resident wrote to the landlord to report what she described as harassment by the residents of four neighbouring properties.
As the resident did not provide dates for any the incidents she was reporting, that appeared to be relatively low level incidents and as it was unclear how frequent the incidents were it was not possible at that time for the landlord to judge whether those reports related to ASB or to a difference in lifestyle and an everyday reasonable level of disturbance. In such cases the landlord would be expected to seek further information from the resident, which it did by asking the resident in its correspondence of 21 August 2020 to keep a diary of incidents so that her concerns could be reviewed further. In addition, the landlord also advised the resident, in accordance with its ASB policy, to report any incidents of harassment to the Police.
By the time the landlord issued its stage one response on 6 November 2020, three months later, there is evidence of only one further report of alleged ASB, a video sent to the landlord on 5 October 2020 showing areas of the beds at the communal gardens which had been dug up and which the resident alleged was further evidence of ASB by her neighbours. There is no evidence of the resident providing the landlord with further evidence related to the reports she made on 29 July 2020, of her submitting any completed diary sheets or of her contacting the landlord to advise it of any incidents reported to the Police.
It is evident that the landlord viewed the resident’s video of 5 October 2020, however, did not consider it to be evidence of ASB but rather action by foxes. Again the landlord advised the resident regarding contacting the police if she believed she was being harassed and requested that she provide further information regarding both her reports and a photo she had sent, which the landlord said showed minor injuries to her hand. Again there is no evidence of the resident doing so.
There is then no evidence of any further reports of ASB by the resident until she submitted her escalation request on 4 January 2021. In her request the resident said that the landlord had failed to take any action with regards to her reports and made a new report regarding noise disturbance on New Year’s Eve and 1 January 2021. Where the evidence was insufficient to support action against the alleged perpetrator it was appropriate for the landlord to ask for additional information and for the resident to maintain an incident diary so that any future incidences could be easily recorded and reviewed. Despite the landlord’s requests there is no evidence of the resident providing either diary sheets or any additional information. As that was the case there was no further action that the landlord could reasonably take at that time.
With regards to the resident’s report of noise disturbance on New Year’s Eve and 1 January 2021, the landlord took reasonable steps to address this by contacting the neighbour. As the neighbour denied the allegation, and as the resident had provided no further evidence to support that allegation, there was little the landlord could do at that time. However, it again recognised the need to gather evidence in order to ascertain whether this was a one off incident or whether it might amount to a more persistent issue that may require further action under its ASB policy. This is did by again asking the resident to complete diary sheets and also by suggesting that she download the Noise App so that the level of noise from the neighbours flat could be assessed.
The landlord also took reasonable steps to address the resident’s concerns about the crack in her living room ceiling, which she said had been damage by the actions of her neighbour on New Year’s Eve and 1 January 2021. This is did by agreeing to arrange for the ceiling to be inspected by a surveyor in order to establish whether there was any evidence that the cracks were as a result of her neighbour’s behaviour.

The landlord’s response to the resident’s allegations of racism by its staff.

This Service cannot determine whether discrimination has occurred, as these are matters which are better suited for a court to decide; nor can this Service establish the veracity of the allegations. Rather, this Service will consider, and make a determination on, whether the landlord responded fairly and appropriately to the resident’s allegations and decide whether or not the landlord acted in a reasonable way.
When accusations are made of discrimination and prejudice by members of a landlord’s staff, the landlord would be expected to conduct a fair and objective investigation, take appropriate action where necessary, and clearly relay its findings to the resident.
In this case, the resident made allegations of discrimination by her property manager, who she said had made racially aggravated and unfounded accusations about her, and that the landlord was racist in its approach.
In its response of 17 July 2019, the landlord acknowledged the resident’s allegations of discrimination by her Housing Manager, however as these dated back to 2015, it was reasonable for the landlord not to consider them further, especially, as it said it had investigated the resident’s allegations at the time and found no evidence to support the resident’s claims. In order to ensure that there were no more recent allegations, which it would be required to investigate, the landlord acted appropriately by asking the resident if she had any current information which it would be happy to review. There is no evidence of the resident providing any further information at that time.
On 4 January 2021, approximately 16 months later, the resident again made allegations that her property manager had made racially aggravated and unfounded accusations about her. As the resident had provided no information relating to any new incidents nor any new evidence to support her previous allegations, there was nothing further for the landlord to investigate and so it was reasonable for the landlord to rely on the response it had previously provided to the resident, that it refuted the allegations.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its handling of the resident’s reports of anti-social behaviour (ASB) by her neighbours.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to the resident’s allegations of racism by its staff.

Reasons

The landlord followed its policies and procedures, and behaved reasonably and appropriately in response to the resident’s reports of ASB by her neighbours. As it was difficult for the landlord to judge whether the resident’s reports related to ASB or to a difference in lifestyle and an everyday reasonable level of disturbance, it was reasonable and in accordance with its ASB Policy for the landlord to ask the resident for further information and to ask that she keep diary sheets. There is no evidence of the resident doing so. It was also reasonable, and again in accordance with its ASB policy, for the landlord to advise the resident to report any incidents of harassment to the Police. Having received no further evidence, diary sheets or reports of matters being reported to the Police it was reasonable for the landlord to take no further action.
The landlord has demonstrated that it has took the resident’s concerns regarding its staff conduct seriously and investigated accordingly. Having been unable to find, and not having been provided with, any evidence to support the resident’s claims, it was reasonable for the landlord to not uphold the resident’s complaint.