Clarion Housing Association Limited (202011806)

REPORT

COMPLAINT 202011806

Clarion Housing Association Limited

31 May 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

The complaint is about the landlord’s handling of:
1. The issuing of a final warning letter to the resident following her anti-social behaviour (‘ASB’) reports and counter allegations.
2. The resident’s request to be rehoused.

Background and summary of events

Background

The resident is an assured shorthold tenant of the landlord, a housing association. The resident has vulnerabilities.
The landlord’s definition of ASB covers behaviour that includes harassment, which it states can include behaviours such as threats, verbal abuse, abuse via social media, violent behaviour, stalking and behaviour causing or intended to cause alarm or distress.
The landlord’s approach to ASB aims to prevent incidents occurring; investigate in partnership with external agencies; use available tools such as mediation, warnings, and acceptable behaviour commitments; and take appropriate action to stop ASB where there is sufficient evidence.
The policy divides ASB reports into three separate categories. For ASB involving crime, the landlord will work with police on a collaborative basis, take action to enforce tenancy conditions and refer victims to support agencies while police investigate and bring charges against the perpetrator. It will not take the lead on resolving such incidents, but in some serious cases if it is appropriate to do so, it will explore its options for taking its own legal action such as an injunction. For other forms of ASB, the landlord generally investigates ASB within five working days if thresholds are met based on the frequency of reports, and if three separate incidents are reported within seven days by the same household; five within 28 days by the same household; or two within 28 days by two different households.
The landlord will not investigate every individual report of ASB, as they are often one-off events or and residents are expected to try to resolve issues amongst themselves. The landlord also exercises discretion to handle matters differently if it considers residents are particularly vulnerable; if there is low level but repeated ASB; if a threshold is met but a complainant is being unreasonable; or if a threshold has not been met but there has been a serious one-off event. The landlord will use evidence the police provide together with evidence it may obtain to take enforcement action where appropriate.
Under the Anti-Social Behaviour, Crime and Policing Act 2014, housing providers can apply to a court for an injunction with a power of arrest if breached. The court may grant the injunction if they are satisfied on the balance of probabilities that a person has engaged or threatened to engage in anti-social behaviour, and the court considers it just to grant the injunction to prevent the person engaging in anti-social behaviour. Such an injunction is granted for a period of time and will require a person to do a certain thing or prohibit them from doing a certain thing, with the aim to stop the anti-social behaviour and stop individuals getting involved in crime. They are a civil order and do not give individuals a criminal record.
The management transfer policy sets out that the landlord aims for its tenants to live in safety in their home and community, and in exceptional circumstances tries to urgently rehouse a tenant outside its normal allocations criteria where there is serious threat to personal safety in the form of serious ASB, harassment or domestic abuse. It aims to rehouse a tenant within three months and asks them to widen areas of preference if this means finding a property is likely to take longer. The landlord will only do a management transfer which is on a permanent basis. The priority is to move a tenant out of a property and area where they are currently at risk, and therefore the landlord tries to take account of rehousing area preferences “where we can;” it will offer the first suitable property that meets the housing need as defined by its allocation policy; and it will only make one offer.
The mutual exchange policy sets out the approach for mutual exchanges of properties. Permission to mutual exchange is not unreasonably refused unless there are grounds. In respect to ASB, these are where there are injunction; demotion; ASB or possession orders in place or are in the course of being obtained. A warning or final warning does not prevent a mutual exchange from taking place under the policy, however the policy notes that in providing a reference to other landlords, it discloses all known criminal activity related to a property; ASB complaints; and ASB breaches. Depending on the tenancy agreement, a mutual exchange may be refused if an incoming tenant’s landlord has not provided a “satisfactory reference.”
The landlord operates a two stage complaints procedure, responding at stage one within 10 working days and at stage two within 20 working days. The landlord’s policy indicates it does not investigate complaints over six months old.

Summary of events

The records are limited in regards to ASB prior to the timeframe of the complaint. In March 2019, the resident then made reports about a neighbour and their visitors touching her dog and verbally abusing her, calling her a ‘snitch.’ In April 2019, the landlord wrote to the resident and informed her it would be taking no action about ASB she had reported.
This investigation then understands that following incidents in May and June 2019, the resident was issued two ‘prevention of harassment’ letters by the police about her behaviour to two neighbours (different to previous ones mentioned), which included shouting abuse; sending text messages; sending threatening/abusive voicemails to multiple individuals; and approaching and intimidating/verbally abusing multiple individuals in public. The information provided advises that the police possessed some evidence for the allegations, and they warned that if the resident committed any further harassment, she may be liable for arrest.
The landlord made a police disclosure request on 28 June 2019. The information seen by this investigation advised seven reports had been received about the resident. The information provided shows that the landlord considered these and reports from complainants, and noted there was sufficient evidence to take action in the form of an application for an injunction with the power of arrest, to try to stop bad behaviour. The landlord also noted that the resident had vulnerabilities and that it would make an appropriate referral.
The resident advises that before allegations were discussed with her, she made reports of her own about neighbours’ attempts to slander her. The landlord’s records confirm that on 1 July 2019, she reported an encounter with some neighbours where one of them had said that the resident would “get arrested in the morning” due to complaints and evidence about her. The resident also reported that the neighbour had been ‘slandering’ her name to other neighbours and that she was seeking independent advice.
The information provided advises that a meeting was subsequently held with the resident with a councillor present. The landlord’s summary of this meeting notes:
1. The resident summarised a breakdown of relations with neighbours, and supplied some information the landlord considered and set out its position on. This included that text messages received by her were not considered to be threatening, and that it would not get involved in personal affairs she mentioned.
2. It informed the resident that it had tried on more than one occasion to have meetings with her, which she had declined. It offered to refer her for support for her vulnerabilities, which it noted she declined and said she intended to get independent advice.
3. It informed the resident about reports from neighbours and the police and ‘pending’ police charges. It informed her that her behaviour was unacceptable, and she should not have contact with individuals she had got into ‘altercations’ with.
4. It had initially informed her it was going to apply for an injunction with the power of arrest because she was not engaging; she had failed to attend interviews; it had received reports from the police about assault, drug possession and other behaviour; and it had received several reports alleging harassment, verbal abuse and intimidation. It then noted she made counter allegations, and so it informed her it would not apply for an injunction but would give her a final warning, due to the seriousness of the allegations.
On 26 July 2019, the landlord wrote to the resident. It said that it had concluded an investigation into allegations against her, and after speaking to the police, complainants and witnesses, it “had no doubt” that she had perpetrated acts of aggression against neighbours. It stated that her behaviour breached her tenancy agreement, and if further substantiated complaints were received, enforcement action would be taken without warning. It stated that if she was evicted for antisocial behaviour, the local authority would not rehouse her as she would have made herself intentionally homeless. It stated the letter was a final warning about her conduct and asked her not to approach specified individuals; not to harass, threaten, intimidate or verbally abuse anyone within the locality including specified individuals; not to allow her dog in public areas without a lead; not to erect a gazebo in communal areas; and not to smoke cannabis in the property.
The landlord next wrote to the resident on 4 September 2019. This noted there had been an allegation of verbal abuse and intimidation from a new complainant which it wished to discuss; invited her to provide evidence of any counter allegations she had; offered to refer her to a team that could provide support; and invited her to provide details of any support workers she had.
The resident later made ASB reports about four individuals (different to previous ones mentioned) from November 2019. These related to allegations of harassment; verbal abuse; works in a property; being shoved by a neighbour; being grabbed by an unknown male when walking her dog; talks with neighbours about her dog; a neighbour ringing her doorbell; and comments by neighbours. Between December 2019 and September 2020, the landlord wrote to the resident on several occasions about her reports, stating it would take no further action.
In late August 2020, Citizens Advice contacted the landlord. They said that bullying targeted at the resident was having a damaging impact on her health, and it was believed a management move to alternative accommodation was the best solution to resolve the bullying. They detailed her background and vulnerabilities and raised concern about her being subject to abuse including racist language; being ganged up on; having rumours spread about her that she was a police informant; being challenged to fights; being grabbed by teenagers; and being afraid to leave her flat. In separate contact from the resident in September 2020, it was noted that issues had been going on for a year but escalated recently. It was noted that the resident said she hid in her flat so as not to be seen by neighbours, and had recently slept in nearby woods for a few nights to get away from them.
The information provided advises the landlord considered the request for a management move, visited the resident and in early October 2020 completed an initial assessment of the request. It reviewed ASB reported by the resident and concluded that while she was not at immediate risk, ongoing racial intimidation, deterioration of her mental wellbeing and concerns about lack of resolution of issues over the past four years led it to recommend a management transfer from the area.
The resident then made a complaint on 2 October 2020, in which she raised dissatisfaction about staff handling of the ASB case a year prior, and about being provided a final warning without any previous verbal or written warning:
1. She said that she was vulnerable, and the landlord’s actions about untrue and malicious allegations had been insensitive and extreme.
2. She said that before complaints had been made against her, she had contacted the landlord to report benefit fraud, abuse and slander committed by neighbours, and to request a call-back to discuss excessive bullying.
3. She was unhappy her comments and evidence were disregarded, and that she had been informed she had no complaints; legal action was going to be taken; and the police would be involved.
4. She said that she had since been bullied, harassed, had her home broken into and her phone snatched away, which she felt was due to the landlord’s inaction. She said her neighbours had made her life a living hell and she felt unsafe in her home and area.
The landlord emailed a stage one response to the complaint on 29 October 2020:
1. It advised that concerns about specific staff were discussed with an appropriate manager.
2. It advised that the resident’s behaviour had been discussed in person, over the phone and with her cousin; she had been sent a warning letter; and the case had then been closed soon after. It advised it was confident her cases had been dealt with properly.
3. It advised that any further ASB issues should be reported to the landlord and the police, and it detailed how to do this.
The resident replied the same day, requesting a call-back from a specific individual and advising that she would pass the response to Citizens Advice, as they were dealing with the issue. The information provided then advises that the landlord emailed the resident on 22 November 2020 to confirm she was on the waiting list for a management transfer and would be contacted when a property became available, aimed to be within three months. It advised that only one offer would be made, and if an offer was made and refused for reasons deemed unreasonable, her priority status would be revoked and she would be withdrawn from the waiting list.
In January 2021, the landlord informed the resident that it would be taking no action about some ASB she had reported, and carried out a review of her management transfer, noting it informed her support worker that she should remain on the waiting list. The same month, the resident complained to this Service that she had requested escalation of the complaint the same day she had received the response, and following referral by the Ombudsman the landlord provided a final response on 26 February 2021:
1. It acknowledged the resident’s dissatisfaction to this Service that she was issued a final warning without any pre-warnings; that neighbours made complaints about her and she no longer felt safe in her home; that she was not able to do a property swap due to the final warning; and that she was not being allowed to move out of the area or away from the landlord.
2. It advised that it could see the letter confirming a final warning was the first time it had written issuing a warning. It advised that previously, there had been conversations and meetings about complaints neighbours were making in which there were warnings that behaviour must change. It apologised that this was not made clear in the letter. It advised that on the basis of information the police shared confirming a conviction for assaulting a neighbour, the issuing of a verbal then written warning was in line with policy and procedure.
3. It advised that the warning letter did not prevent the resident from carrying out a mutual exchange and that these were only prevented where legal proceedings for ASB had commenced, which was not the case here. It provided information on how the resident could pursue a mutual exchange.
4. It noted a management transfer was previously approved due to the impact that neighbour issues were having on the resident’s wellbeing, and noted that she had said she would like to move to a certain town or the surrounding area. It advised that a property 26 miles outside the town was due to become available and asked the resident to confirm if she was interested in a move to this property.
5. It acknowledged and apologised that there had been delays responding to the resident’s stage one and final complaints, and awarded £100 for this.
On 4 March 2021, the landlord noted it spoke to the resident along with a support worker from MIND:
1. It noted she had declined the offer of the property mentioned in the final response, as this was too far away from an area she had specified. It noted she was seeking properties that matched a number of criteria, and she was aware it may not manage properties in areas specified and it was quite possible it would be unable to meet her requirements. It noted she was asked to consider approaching local authorities in the event it was unable to assist.
2. It noted she raised concern that the final response mentioned an assault conviction three years prior. It noted she explained the victim had since moved and had no involvement in the ASB case that resulted in the final warning being served. It noted she felt both cases were being mixed up and still contested the decision to issue the final warning as opposed to a verbal warning, which she would be more receptive to.
The information provided advises that the resident refused a second property offer made on 12 March 2021, explaining this did not have a garden and was in a block. The landlord spoke to the resident again on 16 March 2021, and subsequently emailed her on 23 March 2021 that the refusal had been considered to be unreasonable and so the management transfer application had been withdrawn. It said she could appeal the decision by responding within ten working days.
The resident emailed outside this timeframe on 22 April 2021 and complained about the landlord’s final response, withdrawal of the management transfer, and a lack of duty of care and action to stop her being abused and attacked by other tenants. Following this, the landlord reviewed whether it needed to clarify any misinformation such as if it had been wrong to state there had been a conviction. It noted this was not disputed by the resident and it was satisfied with the position set out in its the final response.
The landlord raised a new complaint to include additional issues raised by the resident and provided a stage one response on 15 June 2021, in which it confirmed the previous response had addressed the written warning she had received. It advised that the resident was offered two properties as part of the management transfer process and it had felt her reasons for refusal of the properties were not reasonable. It advised that under its policy it could withdraw an application and explain why, which it had done. It noted the resident had been given the opportunity to appeal the decision within ten working days and nothing was received. The landlord acknowledged and apologised for a delay responding to the complaints on 22 April 2021 and awarded £25.
In July 2021, the landlord confirmed new reports of ASB from the resident were being investigated; detailed actions it and she would take; and wrote to her about mediation.
In contact to this Service, the resident has restated dissatisfaction with the landlord’s handling of matters. In information provided:
1. She advises she was unhappy the warning was issued without the landlord discussing the allegations with her and considering that she was being harassed and falsely accused. She was unhappy the landlord did not take evidence she provided about being elsewhere when she was alleged to have behaved antisocially. She noted that messages and voicemails that were sent were not threatening, they were her trying to have her say and telling the recipients of her plan to expose them. She advises that she was only reacting to other people’s actions and reacting to being disrespected.
2. She states dissatisfaction with the offers she was made due to area and property type, and noted in information provided that she was happy to wait for the right offer which met her mental and physical need.
The resident most recently informs this Service that since the landlord’s final response, she has moved via mutual exchange into a property managed by a different landlord.

Assessment and findings

The landlord’s handling of the issuing of a final warning letter to the resident following her anti-social behaviour (‘ASB’) reports and counter allegations.

This investigation does not comprehensively investigate all of the issues around the time the landlord issued the final warning letter. This is because the formal complaint was brought to the attention of the landlord on 2 October 2020, approximately fifteen months later.
The Ombudsman’s remit in relation to complaints is set out by its Scheme. Paragraph 39(e) of the Housing Ombudsman Scheme states that “the Ombudsman will not investigate complaints which, in its opinion, were not brought to the attention of the member as a formal complaint within a reasonable period, which would normally be within 6 months of the matters arising.” The landlord’s own complaints policy advises similar. This reflects that the longer the time goes on, the more the landlord and the Ombudsman’s ability to conduct an effective investigation is impacted. This investigation therefore mainly focuses on around May 2020 onwards, six months before the complaint was made, and the landlord’s consideration of matters from this point.
This Service understands the resident’s situation and recognises that the concerns she has reported have affected and caused distress to her. In cases relating to ASB, it is not the Ombudsman’s role to determine whether ASB occurred or who is responsible. However, the Ombudsman can assess how a landlord has dealt with matters in the timeframe of a complaint, and assess whether the landlord followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances.
ASB case management is a crucial aspect of a landlord’s service delivery. Effective use of an ASB procedure enables the landlord to identify appropriate steps to resolve potential areas of conflict, improve landlord/tenant relationships and improve the experience of tenants residing in their homes. ASB cases are also often the most challenging for a landlord as, in practice, options available to a landlord or chosen by a landlord to resolve a case may not include a resident’s preferred outcome, and it can become difficult to manage expectations.
As set out above, this investigation does not comprehensively investigate historic issues around the time the landlord issued the final warning letter. However, following the complaint, the landlord clearly considered the resident’s dissatisfaction with the warning letter fifteen months before, and set out its position that this followed warnings in conversations; followed information the police shared; and was in line with policy. It also acknowledged and apologised for delays in its complaint responses and awarded compensation for this.
This investigation understands the resident feels she should have received different types of warnings before the type of letter the landlord sent. The landlord’s ASB policies confirm the landlord may employ a range of intervention tools including warnings, behaviour agreements and mediation. There is however no set process about what such warning letters should be preceded by, and the landlord has discretion over the intervention tools it decides to use based on its assessment of matters and what it considers to be proportionate in the circumstances.
This investigation notes that the landlord’s records about the circumstances the warning letter was issued are not as complete as would be expected, even fifteen months after events. The landlord should ensure that its recordkeeping is effective and robust to enable accurate and effective decision-making in the future, as well as to enable effective investigation of matters by the Ombudsman. This has not significantly affected this Service’s consideration of matters in this case, however a recommendation is being made in relation to this.
The landlord’s records advise that prior to the written warning, it informed the resident that it had received police reports about assault, drug possession and other behaviour; and had received several ASB reports alleging harassment, verbal abuse and intimidation. The written warning then went on to say that the landlord “had no doubt” acts of aggression had been perpetrated against neighbours. As explained, this investigation does not comprehensively investigate historic issues, however the information provided advises that the landlord had reviewed the resident’s ASB reports, received her reports that her neighbours were slandering her, and considered her counter allegations along with other information, before deciding its approach.
The landlord clearly felt it had some basis for its approach, and this investigation can see there were police harassment letters; reports which appear to meet the landlord’s thresholds for ASB investigation due to their frequency; and an assault conviction which the resident does not dispute she had, although she advises this was not directly related to the warning letter. This Service understands the resident feels the warning letter was unfair, however the above suggests that the issuing of the written warning was not done without information that the landlord felt supported its approach.
The landlord’s records also advise that before it termed the written warning as a ‘final warning,’ the landlord informed the resident of an intention to apply for an injunction. The landlord then confirmed that, on listening to the resident’s account, it would reduce this to a final warning, because of what it considered to be the seriousness of the allegations. This advises that the landlord did consider the resident’s side of matters. The landlord clearly saw the letter as a warning however that if there were further ASB reports supported by evidence, it would take enforcement action such as apply for the injunction. As such, it appears to have been fair and reasonable to explicitly inform the resident that the warning was a ‘final’ warning before it would take such action.
This investigation notes that the resident was unhappy with the final warning because she felt it affected her being able to transfer from the property via mutual exchange. There is no evidence that the letter alone would affect transferring from the property, as the landlord’s mutual exchange policy does not say a warning or final warning prevents a mutual exchange from taking place. Under the mutual exchange policy the landlord will disclose records such as ASB complaints to other landlords, as this investigation understands it did in the resident’s case, however this did not prevent her from successfully moving.
Overall, while this Service understands the resident feels the warning letter was unfair, the evidence shows the issuing of the written warning was done with information the landlord felt supported it. Since the landlord intended to take enforcement action if there were further ASB reports supported by evidence, it was also fair and reasonable to explicitly inform the resident that the letter was a ‘final’ warning before it would take such action. Further, the landlord was positive and customer focused by acknowledging, apologising and compensating for delays in its complaint responses.

The landlord’s handling of the resident’s request to be rehoused.

This Service understands the resident feels the landlord failed to provide her with a property that met her needs and that its handling of matters impacted her health. This Service understands the resident’s situation and recognises that the concerns she reports have affected and caused distress to her.
In cases in relation to the issues raised, it is not the Ombudsman’s role to determine whether a tenant should be rehoused. It is also not the Ombudsman’s role to make a determination on matters such as the impact on health, as this is not in our expertise and jurisdiction. The Ombudsman’s role when considering complaints is to assess whether the landlord appropriately considered matters within the timeframe of the complaint, and correctly applied its policy and procedure when reaching decisions.
Under the landlord’s management transfer policy, it may urgently rehouse a tenant outside its normal allocations criteria where there is a serious threat to personal safety in the form of serious ASB or harassment, and it generally only makes one offer when doing so.
Following contact from Citizens Advice in August 2020 to request a management transfer due to the resident’s situation, the landlord visited her before internally recommending a management transfer in October 2020. The landlord took appropriate steps to assess the request and set out a position in line with its policy, and then confirmed in its final complaint response that it had found a property that appeared to meet location criteria.
The landlord’s authorisation appears to have been reasonable, customer focused and mindful of the resident’s stated vulnerabilities, as it considered that she was not at immediate risk but that authorisation of a move was an appropriate response to her situation. The three months it took for the landlord to consider and respond to the request is longer than would be expected, however this Service recognises the wider impact the Covid-19 pandemic may have had on landlord resources, and this delay did not have enough of an impact on the circumstances in this case to find a failing.
This Service understands the resident feels the landlord could have done more to find a suitable property that met her specific needs, and understands her dissatisfaction that the landlord withdrew its offer of a transfer, after it made two offers to her.
The landlord’s management transfer policy, under which the landlord was offering to move the resident, is aimed to urgently rehouse residents where there is a serious threat to personal safety. While the landlord tries to take into account housing preferences, the aim of a management transfer is to remove someone as quickly as possible from an area where they are at risk, to a property that meets their assessed housing needs in terms of criteria such as number of bedrooms. Further, the landlord normally only makes one offer, and it is not unusual for a landlord to withdraw a management transfer if it considers a refusal of an offer to be unreasonable.
The landlord does not appear to have considered the resident to be in any immediate danger and so appears to have exercised discretion by offering a management transfer. The landlord sought to locate a property that met the resident’s preferences but also managed her expectations that it might not be able to. The subsequent withdrawal of the management transfer was after the landlord had exercised discretion to make two offers, rather than the one it normally makes, and after it informed the resident that it did not consider her refusal to be reasonable.
This investigation understands the resident feels the properties were unsuitable, however the landlord’s withdrawal of the management transfer appears reasonable given it made two offers. The resident has stated that she was happy to wait for the right offer, however it would not have been in line with the policy to keep her on the management transfer list indefinitely, given the aim of a management transfer is to urgently move tenants at serious risk which the one offer normally made reflects.
Overall, the landlord’s handling of the request to be rehoused appears to have exceeded the requirements of its policy and appears to have been reasonable and customer focused. The landlord acted reasonably in accordance with its policy when confirming it would offer the resident a management transfer, and exercised discretion beyond the policy to make more than one offer when attempting to rehouse her. Further, the landlord was positive and customer focused by acknowledging, apologising and compensating for delays in its complaint responses.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s issuing of a final warning letter to the resident following her anti-social behaviour (‘ASB’) reports and counter allegations.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s request to be rehoused.

Reasons

While this Service understands the resident feels the warning letter was unfair, the evidence shows the issuing of the written warning was done with information the landlord felt supported it. Since the landlord saw the letter as a warning that if there were further ASB reports supported by evidence, it would take enforcement action, it was also fair and reasonable to explicitly say the letter was a ‘final’ warning before it would take such action.
While the consideration of the request took longer than might be expected, this Service recognises the wider impact the Covid-19 pandemic may have had on landlord resources, and this delay did not have enough of an impact on the circumstances in this case to find a failing. The landlord’s handling of the request to be rehoused generally exceeded the requirements of its policy and was reasonable and customer focused.
For both matters, the landlord was positive and customer focused by acknowledging, apologising and compensating for delays in its complaint responses.

Orders and recommendations

Recommendations

The landlord to review its ASB recordkeeping to ensure relevant records are kept and are accessible.
The landlord to review the management transfer authorisation timeframe and to ensure that it responds to requests in a timely way.