Guinness Housing Association Limited (202109934)

REPORT

COMPLAINT 202109934

Guinness Housing Association Limited

26 November 2021

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s handling of:
1. the resident’s reports of antisocial behaviour (ASB).

Background and summary of events

There are two tenants in the complainant’s property. Both are referred to as the resident in this report for ease of reference. The resident is an assured tenant and lives in a flat.
The resident reported racial abuse and threats of assault from a neighbour (neighbour B) to the landlord and police in December 2019; however, from the information provided it is not clear what further action was taken at the time.
The resident began reporting ASB in October 2020 about a different neighbour, neighbour A. According to the landlord’s log, on 13 October 2020 the landlord interviewed the resident as she had reported that she was persistently woken up at night by music coming from neighbour A. The landlord noted that the resident said she had: used the noise app, but this did not always pick up the noise; called the police on many occasions, but they would not attend; and contacted the local authority who could not attend to witness the noise as it happened. The landlord noted that the resident referred to historic ASB and believed neighbour A was targeting her family due to their faith and detailed the impact that this had. She also asked for a new case handler to investigate her reports. The landlord also logged that it had completed a risk assessment. The resident continued to report incidents of loud music at night and sent the landlord recordings.
On 28 October 2020, in a “weekly witness support call” with the resident, the landlord noted that it tried to manage the resident’s expectations by explaining the actions it was able to take, and that it was unable to take enforcement actions immediately. It recommended that the resident attend mediation with neighbour A and discussed the local authority’s involvement. The landlord noted that it informed the resident that it could not investigate past incidents.
On 30 October 2020 the landlord called the resident regarding video evidence it received from her, in which it noted that music that the resident said was coming from neighbour A’s property could clearly be heard. The landlord noted that it had tried to call neighbour A, but was unsuccessful, and had sent them two contact letters. It also noted that the resident had said they needed further time to think about mediation.
The landlord noted on its system on 5 November 2020 that neighbour A had not responded to its letters or calls. It noted that it would speak with the resident and direct the resident to contact the local authority because its noise monitoring equipment would pick up a better level of noise than the resident’s phone.
The landlord and resident corresponded on 6 November 2020 and:
1. The landlord advised there was no previous tenancy action taken against neighbour A. The new case handler would continue to investigate but could not act on historic events.
2. The resident reported an incident which occurred on 5 November 2020 where a relative of neighbour A insisted that the resident opened her door for some time while the relative tried to establish if the resident had complained about neighbour A. The resident explained they found this distressing. The resident informed the landlord that the police came and approached neighbour A, but it did not appear that action was taken.
3. The resident insisted that her complaints about her neighbour were kept confidential and refused mediation. The landlord discussed a level setting exercise and noise recording with the resident and also discussed any other witnesses who may be affected. The resident identified one neighbour who may also be affected and asked the landlord to send neighbour A tenancy warnings and carry out spot checks.
On 12 November 2020 the landlord contacted the local authority, and asked it to provide any information regarding both properties and if anything had been witnessed at neighbour A’s property. The landlord updated the resident, who continued to report noise, and confirmed it had contacted the local authority. It asked her to capture on video where the resident was in the property when recording noise. However the resident said they were unable to do so without getting reduced audio quality. The landlord explained that due to the coronavirus pandemic and staff absence it was difficult to attend the property to witness the noise. It explained that the resident’s new caseworker would update her the following week.
The resident called the landlord on 18 November 2020 and reported further incidents of noise nuisance from neighbour A. She asked who had taken over her case.
It is understood that the resident’s neighbour (neighbour A) installed CCTV in December 2020.
The resident’s new caseworker contacted her on 5 January 2021. The caseworker noted that the resident said that neighbours A and B were connected, and detailed previous incidents. The resident said issues with neighbour A began when she reported them for noise nuisance and expressed that her family was scared to leave their home. The landlord explained to the resident that it could only investigate the recent allegations and agreed to liaise with previous caseworkers, the police and local authority. It also noted that it would “investigate use of cameras”.
The resident contacted the landlord on 19 January 2021 and said her previous case handler (appointed in November 2020) never contacted her and there was a seven-week period where nobody contacted her. She reiterated that she felt her neighbour’s CCTV camera was being used to target her and, considering the nature and history of the situation, she refused mediation with the neighbours.
On 21 January 2021 the resident contacted the landlord in relation to video evidence, which she said she would send to her caseworker via a mobile app. However, the caseworker advised that her work phone was broken and asked the resident not to send the evidence at this time. The caseworker said they would inform the resident when she could send it.
On 27 January 2021 the landlord’s records show that it sent the resident a letter to close the case. A copy of the letter has not been provided for this investigation.
The resident made a formal complaint on 1 February 2021 regarding the landlord’s handling of her reports of ASB. She was unhappy that the landlord refused to deal with past incidents and expressed her concern that the landlord had closed the case, knowing she was waiting to send new video evidence.
The landlord liaised with the police on 9 February 2021 and the police confirmed its officer attended in late December 2020, but no action was taken.
The landlord wrote to the resident on 17 February 2021 and concluded that it managed the ASB case in line with its policy. It confirmed it could only investigate current, ongoing incidents and that it was not always necessary to review old cases and it would only do so if required. To help aide its investigations it asked that the resident provide evidence. It said that the case worker’s manager confirmed that the case worker’s phone was broken and when she requested the evidence this was refused. The case was closed at this time because no evidence was provided.
The landlord said that there was no agreement in place for the case worker to contact the resident on a weekly basis and apologised if this was the impression that the resident was given. It confirmed that the resident’s case would continue to be investigated by the current case handler because all correct procedures were being followed. It would contact the resident as soon as it had an update.
The resident contacted the landlord on 17 February 2021 and asked to escalate her complaint. She reiterated the previous incidents and her concern that neighbour A put up CCTV in December 2020, which pointed directly at her. The resident remained unhappy that the case worker would not investigate previous incidents, and that there was poor communication with her caseworker, who was not considering all of the evidence.
In the stage one complaint response, dated 19 February 2021, it said it believed that it had handled the resident’s reports correctly, however it acknowledged that there had been occasions where the resident had not been given the opportunity to send in evidence. It confirmed it had fed back this and going forward the resident should continue to report any ASB and provide any evidence where necessary. It confirmed the existing caseworker would continue to manage the case, but if the resident had any further concerns that her evidence was not being handled correctly, she should raise them. The landlord noted that, in a call, the resident mentioned that there were several discrepancies with emails and calls she received from her caseworker and asked that the resident provide evidence so that it could review them.
The resident emailed a detailed complaint escalation to the landlord on 9 March 2021. She reiterated her concerns with neighbour A’s CCTV and that neighbour A was friends with neighbour B, that her case worker closed the case knowing she had more evidence, that she received no support or contact for several weeks following the departure of a previous caseworker in November 2020, and with the lack of support provided. She expressed her dissatisfaction that the landlord took over 20 days to respond and gave a brief reply which relied on the word of another staff member and did not address her concerns.
On 15 March 2021 the landlord informed the resident that it was considering the next steps and seeking legal advice regarding what could be done, including in relation to the neighbours CCTV.
The landlord acknowledged the resident’s stage two complaint on 22 March 2021 and said it aimed to contact the resident within ten working days.
Between 31 March and 2 April 2021 the resident contacted the landlord to enquire about having a new case handler in relation to the ASB and expressed her dissatisfaction that she had received a letter from her case worker, who was the subject of the complaint, threatening to close the case within seven days. A copy of this letter has not been provided for this investigation.
On 9 April 2021 the landlord advised the resident that it had extended the timeframe for its response by a couple more days.
In its final complaint response, dated 10 May 2021, the landlord confirmed that it had received evidence from the resident showing ASB taking place, allowing it to revisit the matter with the neighbour. It confirmed it would work with the resident’s family to provide support while it investigated. The landlord asked the resident to continue to keep an incident log and where possible (and safe to do so) evidence. It confirmed it would re-appoint the resident’s case and arrange for the new Caseworker to introduce themself to the resident and agree an action plan. It confirmed that part of the investigation will look at the issues surrounding the CCTV at the neighbour’s property and the impact that this was having on the resident.

Assessment and findings

Landlord’s obligations

The tenancy agreement that the resident holds with the landlord says the landlord will not tolerate ASB including harassment, victimisation, annoyance or nuisance and will take action within its powers and under its policies and procedures to deal with them. The tenancy agreement says the landlord expects most people to solve their own issues with neighbours, but if they cannot it may take action especially in cases of nuisance, harassment or victimisation. This may be by involving other agencies. The tenancy agreement gives playing loud music, radios and televisions as examples of behaviour that will or are likely to cause a nuisance and may lead to a breach of the tenancy agreement. The tenancy agreement says any actions it may take in relation to breaches of tenancy include applying for a court order to evict the perpetrator, demoting tenancy, or applying for injunctions.
In line with the landlord’s ASB policy, the landlord will: communicate clearly with residents to explain anti-social behaviour and its approach to manage expectations; encourage residents to resolve their own matters with their neighbours where it is safe and appropriate do so; ensure residents can easily and safely report incidents and are kept proactively informed about its response to those reports and progress; risk assess the level of harm the anti-social behaviour, hate crime or hate incidents causes to individuals when the matter is reported; aim to resolve cases promptly using the full range of methods and legal powers available, including referral to mediation; work in partnership with other agencies; and provide appropriate support to victims and witnesses, including referrals to support services. In line with the ASB policy, the landlord will close an ASB case when the behaviour has improved to an acceptable level; when there is no further reasonable action that the landlord can take to resolve the matter; or at the request of the resident reporting the ASB. It will seek to discuss its intention to close the case with the reporting customer before closure.
The landlord’s complaints policy says it will provide its stage one decision within ten working days from receipt of the complaint, and it will provide its stage two decision within 20 working days from the request to escalate the complaint.

Handling of the resident’s reports of ASB

It is evident that this situation has been distressing for the resident, who remains unhappy with the landlord’s handling of her reports of ASB, including noise nuisance and the position of her neighbour’s camera. It is important to clarify that the role of the Ombudsman is not to establish whether the ASB reported was occurring or not. Our role is to establish whether the landlord’s response to the resident’s reports of ASB was in line with its legal and policy obligations and whether its response was fair in all the circumstances of the case.
For a landlord to take formal action in respect of ASB, a landlord requires corroborative evidence of the alleged behaviour to support formal action. In this case the landlord largely took reasonable steps to investigate and seek corroborative evidence. For example, it encouraged the resident to report any incidents and provide any possible evidence, referred the resident to contact the local authority to obtain noise monitoring equipment, and liaised with the local authority and police regarding the information that they held. The landlord also attempted to resolve the matter informally, by attempting to contact the neighbour A in relation to the reports of noise and offering mediation to the resident.
However there was a failure in the landlord’s ASB service when it stated it could not accept the resident’s video evidence on January 2021 due to a technical issue, and then wrote to the resident to say it would close the case as there was no new evidence. It is not possible to say what impact this specific report would have had on the progress of the ASB case, therefore the failure was about the case management and communication as opposed to missed or overdue enforcement action.
The 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. Therefore, it was appropriate to request diary entries to be used as evidence. The 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. The landlord should also work with other agencies such as the police and local authority, which it appears to have done so in this case.
Ultimately, there is no evidence to suggest that more serious action was required at the time of the closure of the complaint, and the landlord confirmed that it was still investigating the resident’s concerns.
However, the evidence shows that there were periods where the landlord’s communication with the resident could have been better. In line with the landlord’s ASB policy, the landlord should keep reporters of ASB updated and it appears that up to 12 November 2020 the resident was receiving weekly calls in relation to her ASB case. Between 12 November 2020 and January 2021, the resident continued to report incidents and asked for an update from her new caseworker but does not appear to have received any update. This was a part of the resident’s formal complaint, but the landlord does not appear to have meaningfully responded to it, which was a service failure. Furthermore, the landlord stated that it had not committed to weekly calls or updates. However its own log refers to contact in October 2020 as ‘weekly witness calls.’ Even if an explicit offer of weekly updates had not been given, it would have been appropriate to acknowledge the expectations that had been created by the regular contact prior to November 2020. And as stated, even if weekly calls had not been offered, the delay from November to January, given the ongoing reports, was unreasonable.
The resident also reported in January 2021 that they believed Neigbhour A had installed CCTV that recorded her home. The landlord did not respond to this issue in its January and February correspondence. Despite not addressing this issue the landlord also proposed closing the ASB case during this period. It only stated it would seek legal advice in March 2021, and this was only following the resident’s repeated ASB reports and their initial and escalated complaint. The delay in the landlord’s response to this issue was unreasonable.
The resident complained that the landlord did not investigate the handling of the ASB case in 2019. While the resident has stated that neighbour A and neighbour B knew each other, there is no evidence on file from either the resident or the landlord to show a direct link between the two ASB cases. Furthermore the period of time between the two cases (almost a year) means that it was reasonable to not connect them. The Ombudsman asks that residents raise formal complaints about the landlord’s service with the landlord within 6 months of an issue occurring. The resident made their formal complaint in February 2021. If the resident was dissatisfied with the handling of the November 2019 ASB case with neighbour B they would have needed to submit a formal complaint closer to that time. This is to ensure the landlord’s records and knowledge is as up to date as possible, and so that the landlord’s efforts are focused on the most relevant and ongoing issues.
The resident has also raised concerns regarding the time taken for the landlord to respond to her complaint. The landlord sent its stage one complaint response on 19 February 2021, 15 working days after the stage one complaint of 1 February 2021, which was just outside of its published timescales. The landlord sent its stage two response on 10 May 2021, 26 working days after the escalation of 9 March 2021. This was, again, a couple of days outside of the landlord’s published timescales, but the evidence demonstrates that the landlord provided the resident with an update that it would need a few extra days to respond to the complaint, which was in line with good practice. Therefore the time taken to respond to the complaint was not unreasonable.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in the landlord’s response to the complaint about its handling of the resident’s reports of ASB.

Reasons

The landlord was correct to explain that it did not have sufficient evidence to support formal tenancy enforcement action. The landlord also liaised with the appropriate authorities to share information, and tried to resolve the ASB case informally. However there were specific failures in the landlord’s communication and case management that will have caused understandable distress and inconvenience to the resident including: limited contact at times; closing a case when it had been notified of further evidence; and not responding to all of the resident’s concerns.

Order

Based on the determination above the landlord is ordered to, within 4 weeks:
1. Pay the resident £150 consisting of:
  1. £50 to acknowledge the inconvenience in pursuing an update on the ASB case between November 2020 and January 2021.
  2. £50 to acknowledge the distress of suggesting the case would be closed when the resident had notified the landlord of evidence it couldn’t receive.
  3. £50 to acknowledge the inconvenience of having to repeatedly raise the concerns about the neighbour’s CCTV position.