Clarion Housing Association Limited (202106127)

REPORT

COMPLAINT 202106127

Clarion Housing Association Limited

7 February 2023

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

1. The complaint is about the landlord’s response to the resident’s reports of antisocial behaviour (‘ASB’) by his neighbours, including noise and throwing cigarette butts into the resident’s garden.

Background

2. The resident lives in a two-bedroom ground floor flat in a converted house, He has sole use of the garden at the property. He has held an assured tenancy agreement since 2015 and has referred to mental and physical health issues which are noted by the landlord.
3. In June 2021, the resident complained to the landlord that the upstairs neighbours had thrown cigarette butts from their window into his garden. He said he wanted five months’ rent refunded from when the neighbours moved in, and for their tenancy not to be renewed. In August 2021, an ASB case was raised in respect of the butts and reported noise. The resident was given diary sheets, advised to contact the local authority about the noise, and asked to provide evidence of the butts.
4. The landlord’s complaint response on 13 September 2021 noted that the resident had first raised the issue on 29 April 2021 and on 26 May 2021 was advised to contact the local authority regarding the noise. The landlord had left a message to arrange to visit the neighbours and would visit the resident on 15 September 2021 to discuss an action plan. The landlord offered £204 compensation for the delay in the issue being attended to, the unreasonable level of involvement taken by the resident and for the delay in the complaint response.
5. The resident appealed and said the landlord was not taking seriously the risk of him contracting Covid from the cigarette butts and he wanted compensation for collecting over 1,000 butts. The landlord visited the property in September 2021 when a couple of butts were seen in the garden.
6. The landlord issued its final response letter on 12 November 2021. It noted that the resident felt vulnerable and wanted to move and that there had been many emails on this subject since March 2021. The landlord had opened at least 11 ASB cases and had asked the resident to keep diary sheets, but officers had not appreciated the number of reports and no holistic approach was taken prior to the site visit in September 2021. The issue should have been escalated to a specialist team earlier and had not been handled as the landlord would like. Compensation was increased to £454 to include an additional £200 for the inconvenience caused to the resident by no one taking overall responsibility for the issue. 
7. The resident continued to send emails on the same subject, and the landlord visited the neighbour on 25 January 2022 who admitted their friends had thrown butts in May 2021, but they had cleared them up. The landlord could see no butts in the garden and another resident of the property said there had been no noise from the neighbour’s flat.
8. The resident does not want the neighbour’s tenancy to be renewed and for further compensation to be paid.

Assessment and findings

Scope of the investigation

9. There are four other complaints about the landlord that the resident has brought to this Service since 2021, and several prior to that. This investigation is about the landlord’s response to the resident’s reports of the neighbour’s antisocial behaviour (‘ASB’) including making noise and throwing cigarette butts into the resident’s garden. There are separate Ombudsman complaint cases regarding a member of landlord staff and the landlord’s handling of complaints, as well as noise from a dog in the property above, that were closed prior to investigation, or opened after the landlord’s final complaint response for this case. Those issues are not investigated here.
10. In January 2023, the resident said he would submit two USB sticks of CCTV evidence to the Ombudsman. The landlord’s notes indicate that it was provided two USB sticks and diary sheets on 30 May 2022. The investigation was not delayed to include this evidence, as it is not the role of this Service to determine whether the ASB took place, but rather to consider if the landlord responded appropriately to the resident’s reports. There is no evidence to suggest that CCTV footage was shared with the landlord prior to the final response letter in November 2021, and therefore this investigation focuses on action taken by the landlord regarding the ASB reports, up to the time of the landlord’s final response letter for this complaint.

Assessment

11. The landlord’s Antisocial Behaviour policy section 3 covers the threshold for investigating category 2 and 3 ASB cases (relating to ‘noise’ and ‘other’, category 1 being ‘crime’) to separate them from one-off or minor inconsiderate incidents where it is unlikely that any action taken will make any difference. Section 4 covers the landlord’s duty of care towards vulnerable residents and says the threshold (i.e., number of incidents in a timeframe) will not apply in these cases. The policy lists key steps in the investigation to include interviewing the complainant, agreeing an action plan, collecting other evidence, and interviewing perpetrators if there is evidence they have done wrong. Section 6.17 covers closing a case, for example where the behaviour cannot reasonably be described as a nuisance, there is not enough evidence to take further action or when the ASB has stopped or there is no action that can be taken. Section 12.5 covers the action that can be taken by local authorities, who have legal responsibility for noise nuisance. The policy says that where the landlord receives complaints that do not reach its thresholds, the complainant can be advised to contact the local authority.
12. In this case, no detailed log of the various ASB cases opened and the action taken to close each one has been seen. However, there is evidence that the landlord followed its policy by seeking evidence of the ASB, and speaking to the resident, neighbour and other residents. It also offered mediation and noise recording equipment. The resident was advised to contact the local authority, but it is not known whether he did so, or if not why this was. However, the landlord did visit the property when no noise nuisance was witnessed.
13. In its final response, the landlord acknowledged that the investigations were not managed as it would like. It noted that the neighbours lived a different lifestyle to the resident, that the house was a Victorian conversion and so not as soundproof as newer buildings, and that it was not possible to match residents in the way the resident had suggested. The landlord said there had to be give and take on both sides. It said that there was little more it could do regarding the cigarette butts. The neighbour had said he did not smoke, but some butts may have been dropped by visitors, for which they apologised. Photos submitted had shown one or two butts and at a visit in September 2021 there were only a couple, and no evidence of the ‘several hundred’ the resident had described. The landlord said it would send a block reminder regarding tenants’ responsibilities relating to cigarettes.
14. The landlord said that a new officer would take over the ASB investigation, following concerns raised by the resident about the previous member of staff as it was clear that the relationship had broken down. They would review diary sheets and would contact the resident to consider noise monitoring equipment or a professional witness and would discuss referral to a sustainment team in respect of the resident’s vulnerabilities that had been raised. The landlord said it would review how it managed low level ASB as it was concerned its processes had led to the situation.
15. The landlord said there was no evidence the resident was treated differently due to his tenancy type, and it was common for tenants to have different tenancies in a building. The landlord managed the resident expectations by saying that the outcome to the ASB investigation may not be what the resident was seeking. These was reasonable behaviour in order to try and support the resident while being realistic given the lack of corroborating evidence.
16. The Ombudsman looks to assess whether the landlord’s actions were in accordance with the Ombudsman’s ‘dispute resolution principles,’ that is to have a process that seeks to put things right for residents, is fair, and that learns from outcomes.
17. The landlord has shown that once the complaint was made, it acted upon the reports made and in this instance, took steps to obtain evidence. There is no record that evidence of unreasonable noise, or the neighbour being responsible for a problematic number of cigarette butts had been submitted to the landlord, and the landlord made enquiries to ascertain what had happened.  The neighbour did admit to an issue in May 2021 when friends had visited, but apologised and said that these butts were removed. The resident stated that there were several hundred butts prior to the landlord’s visit in September 2021 but has not said why no photograph was taken of them, or why they were not left in situ when he was aware the landlord would be visiting.  At a later stage, the resident said that he had a carer who stayed over sometimes and that he had witnessed the neighbours throwing butts, but there is no statement from the carer on this issue or concerning the noise reported at the address. Other tenants at the address said that they had not heard noise from the neighbour’s property. That is not to say that the resident’s concerns are not heard, or that his word is doubted, but it is difficult for a landlord to act in cases where there is no evidence.
18. Photos of cigarette butts were provided by the resident after the final response letter, but these were out of focus, meaning the date on the newspaper included in the photo could not be seen. There was no evidence that these were thrown from the neighbours above. The landlord has deemed that the ASB reported was low level and that there was little it could do about the butts, and this seems reasonable in the circumstances given the evidence available to the landlord.
19. The resident had advised this Service that the noise issue was resolved prior to the final response letter, although noise was reported again after this time. There is no evidence that the resident reported the noise to the local authority as directed by the landlord, to enable them to investigate further. It is noted that after the final response, the landlord provided the resident with instructions to use a noise recording app but that the resident did not wish to use this as he did not think it would be effective. The resident is entitled to make this decision, but the landlord clearly considers the app appropriate to record ASB noise in its properties and by offering it, the landlord shows it has attempted to take steps to gather evidence to support the resident’s concerns. It is also noted that no other residents in the address reported a noise problem, and the landlord could hear the resident’s TV from inside the neighbour’s property, which supports the landlord’s position that noise may not have to be extraordinary or deliberate to be heard in other flats in the building.
20. The landlord did acknowledge that it should have done more to manage the ASB process better for the resident in his particular circumstances, and it is reasonable that it compensated the resident for this. The sum of £454 would be broadly in line with the Ombudsman’s remedies guidance which allows for sums of between £100 to £600 in cases where there was a failure which adversely affected the resident. There is no evidence to suggest that the landlord was in error by not taking further action in relation to the ASB reports, given the lack of corroboration. Given this, the sum already awarded is reasonable in all the circumstances.
21. The resident has stated that collecting cigarette butts put him at risk from catching Covid. The resident has not stated that he did catch Covid during this time. The Ombudsman recognises that this was a concern to the resident and caused him anxiety, but should note that it is beyond our expertise to decide whether there would be any risk to the resident from such contact. The Ombudsman’s role when investigating ASB complaints is also not to determine whether the incidents have occurred as alleged, but we can assess the available evidence and determine whether the landlord has complied with its duties and obligations when responding to reports.
22. From the evidence that has been provided to the Ombudsman, there is nothing to suggest that the landlord has failed to deal with the resident’s reports in line with its procedure, as detailed above. In response to the resident’s reports of noise nuisance, the landlord appropriately explained that the evidence did not show that there was a statutory noise nuisance. The landlord’s policy says that ASB cases will be opened when reported by vulnerable tenants, without reaching the usual thresholds for frequency, but this does not suggest that evidence will not be required in order to progress the case and take any action against the alleged perpetrators. In respect of both the reported noise and cigarette butts, there was no evidence that these were more than isolated incidents which the landlord would be unable to reasonably act upon.

Determination

23. In accordance with paragraph 53 (b) of the Housing Ombudsman Scheme, there was reasonable redress in the landlord’s response to the resident’s reports of antisocial behaviour by his neighbours, including noise and throwing cigarette butts into the resident’s garden.

Recommendations

24. The landlord to, if it has not already done so:
    1. pay the resident the £454 it previously offered.
    2. advise the resident of its findings and any action it is taking after reviewing the USB recordings it received on 30 May 2022.