Guinness Housing Association Limited (202204395)

REPORT

COMPLAINT 202204395

Guinness Housing Association Limited

13 July 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 handling of the resident’s reports of antisocial behaviour (ASB).

Background

2. The resident is an assured tenant of the landlord which is a housing association.
3. The resident lives at the property with his partner who is vulnerable, reporting to suffer with anxiety and stress, and his 2 children who have additional needs. The landlord says it had no vulnerabilities recorded for the resident.
4. The tenancy agreement 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 actions it may take in relation to breaches of tenancy include applying for a court order to evict the perpetrator, demoting a tenancy, or applying for injunctions. The tenancy agreement adds that the landlord expects most people to solve their own issues with neighbours and that it is important that neighbours understand and tolerate the different lifestyles of others. 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. It says a resident must not use this equipment so that it can be heard outside of the premises.
5. In its ASB policy, the landlord says:
   1. It encourages residents to resolve their own issues with their neighbours where it is safe and appropriate to do so, while being clear about the circumstances in which it may take action.
   2. It will ensure residents can easily and safely report incidents and are kept proactively informed about its response to those reports and progress in dealing with ASB.
   3. It will risk assess the level of harm the ASB, hate crime or hate incidents causes to individuals when the matter is reported and while a resolution is sought.
   4. It aims to resolve cases promptly using the full range of methods and legal powers available; taking reasonable, timely and proportionate action appropriate to the harm caused.
   5. It will provide appropriate support to victims and witnesses, including referrals to support services.
   6. It will close an ASB case when the behaviour has improved to an acceptable level; when there is no further reasonable action that it can take to resolve the matter; or at the request of the customer reporting the ASB. It will seek to discuss its intention to close the case with the resident before closure and will only consider re-opening a case if it is appropriate to do so.
6. The regulatory standards for registered social housing providers include working in partnership with other agencies to prevent and tackle ASB in the neighbourhoods where they own homes. All residents should be able to easily report ASB and be kept informed about the status of their case where responsibility rests with the organisation, and appropriately signposted to other services where it does not. It should also provide support to victims and witnesses.
7. The landlord’s complaints policy says it will provide its stage 1 response within 10 working days from receipt of the complaint, and it will provide its stage 2 response within 20 working days from the request to escalate the complaint. It will not consider an issue that occurred over 6 months before a complaint is made.

Summary of events

8. The Ombudsman previously completed an investigation on 26 November 2021 following a complaint from the resident about his landlord. The Ombudsman considered the resident’s complaint about the landlord’s handling of ASB. In its report, the Ombudsman considered events reported to the landlord from October 2020 to the date of the final complaint response on 10 May 2021.
9. The investigation found service failure in the landlord’s response to the complaint about its handling of the resident’s reports of ASB. The report stated:
   1. The landlord was correct to explain that it did not have sufficient evidence to support formal tenancy enforcement action.
   2. The landlord liaised with the appropriate authorities to share information and tried to resolve the ASB case informally.
   3. 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 the resident’s concerns.
10. This investigation will focus on the landlord’s handling of ASB from 10 May 2021, the date of the landlord’s final response in the previous investigation. The ASB the resident reports is a continuation of the ASB referred to in the previous investigation. The resident has reported ASB from 2 neighbours referred to in this report as neighbour A and neighbour B.
11. There were several emails exchanged between the resident and landlord in May and June 2021. The landlord confirmed that it discussed the ASB cases with an external solicitor at the end of February 2021 and the internal legal team at the end of March 2021. It advised that neighbour A was due to attend court for a hate crime against the resident. The resident expressed concern about the legal advice the landlord had received about neighbour B which said legal action was unlikely to be successful. The resident said he was concerned that the landlord had not provided the full details of the case to the solicitor. The landlord said it was due to visit neighbour B with a police officer to discuss their CCTV camera, which the resident had previously complained about.
12. The resident contacted the landlord again on 17 June 2021. The resident said his family had been going through unbearable stress mainly because of the CCTV which was installed 170 days previously by neighbour B. The resident said the CCTV was pointing towards their property and the neighbours were watching their movements. The resident expressed frustration that he had provided log sheets as requested before and nothing was done. The resident said he had reported noise from neighbour B, which he described as loud, pounding, abusive music, to the local authority who said it was the landlord’s responsibility to take action. The resident expressed concern that neighbour B was associated with neighbour A who was due in court for a hate crime against his family. The landlord replied and confirmed it had received the resident’s WhatsApp messages. It said it had visited neighbour B, but they were not in, and it would follow up the concerns about the CCTV. The landlord also said that whilst it appreciated the resident felt neighbour B was associated with neighbour A, it could not associate the hate crime with the incidents the resident was reporting about neighbour B.
13. There were several more emails throughout June and July 2021. The landlord advised the resident it had been trying to contact him by phone to provide a case update. The resident requested the landlord update him by email.
14. The landlord advised it had spoken to the solicitors again and discussed the case. It advised the resident that it was not able to take legal action to remove neighbour B’s CCTV camera, however the neighbour had agreed to remove the camera if the resident agreed to remove his. The landlord advised it had looked at the latest recordings the resident had provided and it was not satisfied they provided proof of statutory noise nuisance due to the time the music was played, the timeframe between incidents, and the level of noise heard. It said that contacting the local authority’s environmental health team was the best way forward in dealing with the noise nuisance and offered to contact the local authority on the resident’s behalf.
15. The resident said neighbour B’s CCTV was being used to intimidate the family and that the landlord was promoting stalking and abuse. The resident said the fact the neighbour would not remove their camera unless he removed his was proof that the purpose of the neighbour’s camera was to target and intimidate his family. The resident said the landlord’s opinion on the noise nuisance was wrong, and not what was stated in the tenancy agreement.
16. The landlord contacted the resident on 18 August 2021. The landlord advised the resident that the ASB case in relation to neighbour B had been reviewed and it was unable to take any further action. While the landlord agreed that ASB had previously been perpetrated by neighbour B or their visitors, it had spoken to the neighbour and made it clear the behaviour should cease immediately. The landlord said it had not received sufficient evidence to prove the behaviour had continued. The landlord said action may be taken against neighbour A but it was awaiting the outcome of the court case before a decision was made on this. The landlord assured the resident that it had liaised with the police. It also advised the resident it worked in partnership with the local authority’s environmental health team, who have separate powers to the landlord in relation to noise nuisance.
17. During September and October 2021, the landlord and resident were in contact again. The resident reported noise nuisance from neighbour B on 28 and 29 August 2021, and the landlord asked if the resident had any recordings. The landlord said it had spoken to the neighbour in the past about the noise and they denied playing music at an unreasonable level. The landlord advised that the local authority’s environmental health department had the equipment to ascertain whether a statutory noise nuisance was occurring. The resident requested an enforcement officer from the landlord visit him to hear the noise from the neighbours. On top of the issues with loud music, the resident said he could often hear ‘banging and smashing’ noises. The landlord offered to send the local officer to the property but said this would not be a tenancy enforcement officer as they were not based locally.
18. The landlord advised it had not received a response from the resident to an email dated 19 October 2021. It said it may look at closing the ASB case (neighbour B) if no response from the resident was received within 7 days. The resident responded to this, and expressed dissatisfaction that the landlord had said it might close the case. The resident requested the legal team review the case. The resident said an email had failed to send and attached it. The attached email listed allegations of ASB the resident made against neighbour B. The landlord requested further details from the resident about incidents he had provided via a webform dated 19 and 31 October 2021. The landlord advised the resident it was not able to complete a ‘sound test’. It said it would speak to the legal team for a case review.
19. On 18 November 2021, the landlord’s in house solicitor wrote to the resident to confirm that they had reviewed the case in respect of neighbour B. The landlord said it understood the resident had raised issues for a considerable amount of time and that he had clearly been affected greatly by the reported ASB, but the opinion of the solicitor was that, following a review of all the information provided, the landlord was not able to take any further action at that time. The landlord reiterated the advice to report issues of noise to the local authority, and provided an explanation of the powers and actions the local authority could take. The email confirmed that the issues with CCTV had been explored considerably and the landlord was unable to take any action. It said the most appropriate authorities for dealing with this particular aspect of the case would be the police and the Information Commissioner’s Officer (ICO).
20. The landlord contacted the resident on 15 December 2021. It advised it had closed the ASB case. It said that, after reviewing the case with management and the legal team, it was agreed that no further action could be taken based on the evidence. It said that if evidence from an independent or professional witness was provided this would be reviewed.
21. The resident made a complaint to the landlord dated 19 December 2021. The complaint said:
    1. The landlord had not taken action against perpetrators of ASB and was making up excuses for its inaction. The resident said he had been told by the landlord that it was closing the ASB case on 15 December 2021, a few days after him submitting further evidence. The case officer refused to give the resident his contact number and tried to close the ASB case prematurely on several occasions. The resident questioned the case officer’s court experience who had said in a phone call that the court would expect the landlord to continue to send letters out to perpetrators of ASB following ASB complaints, and the resident did not think this was correct.
    2. The resident complained that he was no longer able to submit evidence via Whatsapp, and he was concerned that the landlord was using this as a way to prevent submission of evidence.
    3. The resident questioned whether the solicitor had been the provided with all the evidence on the ASB case. He said he had then spoken to the legal team, but none of his questions were answered.
    4. The resident did not believe the landlord needed to rely on other independent witnesses to support enforcement action due to the amount of evidence he had provided. The resident said other residents had complained about the same neighbour and the landlord was covering up this information. The resident described 3 incidents dated between 2019 and 2021 where other residents of the block had been affected.
    5. That the perpetrator faced no action despite the resident’s ‘endless’ reports of noise nuisance. The landlord had said it was not able to carry out a sound test after previously agreeing to do so. The resident was not satisfied that the landlord said the number of incidents did not constitute a noise nuisance but was not able to confirm how many incidents did constitute a nuisance. The resident said it was the landlord’s responsibility to deal with the noise and not the local authority’s responsibility.
    6. The resident said the landlord was tolerating and rewarding hate crime when it asked neighbour A to ensure its visitor (the perpetrator of the hate crime) did not visit. The resident did not believe this properly safeguarded him and his family as stated by the landlord. The resident was then discriminated against as the landlord provided neighbour A with a parking permit, and the resident was denied one.
22. An internal landlord email on 6 January 2022 confirmed the case was very difficult with both neighbours objecting to each other’s cameras, each stating that they have put them there for their own protection and that neither would remove theirs until the other party did. It said it was further complicated as different police officers gave conflicting information to both parties. There had been allegations and counter allegations between both parties with no evidence to substantiate either side and the case had been dealt with by 3 different case managers. Most recently, the case officer had reviewed the case with line managers and the police and an external solicitor. The landlord confirmed it had a lack of independent evidence (noise complaints) to enable it to proceed with further enforcement action.
23. The landlord responded to the complaint on 12 January 2022. The landlord said:
    1. It did not have enough evidence to take any further action in relation to the ASB case (neighbour B). It said until it received evidence from an independent or professional witness there was no further action that it could take.
    2. The complaint would investigate cases, phone calls, and issues that had occurred within the last 6 months. Incidents prior to 10 June 2021 could not be investigated any further.
    3. WhatsApp guidance had been received and it was no longer able to use the platform to receive evidence. It said policies and procedures were continuously reviewed to ensure data was protected and it had to follow this guidance.
    4. The landlord attempted to arrange a visit with the resident who refused. It asked the resident to contact it if he wished to arrange this.
    5. The ASB case handling had been investigated, and it was concluded that all correct processes had been followed.
24. The resident requested his complaint was escalated on 23 January 2022. He said the stage 1 response did not address his complaint. He said only 2 of the points raised in his complaint were responded to – one response was incorrect and the other ‘used an entire paragraph to fill the space’. The resident said:
    1. He did not refuse a visit from the landlord. The resident said he was the one that requested the visit, but that the landlord said the caseworker would not be able to visit as requested but could instead ask another officer to attend.
    2. The resident said it was extra work for him to send evidence by email, and by refusing to take evidence through WhatsApp the landlord was deliberately supressing his evidence.
    3. The landlord’s use of the term ‘unable to take further action’ was misleading as the landlord had not taken any action. The resident felt that the evidence he had provided against the perpetrators was overwhelming.
    4. The resident felt independent witnesses were not required for the landlord to take action due to the amount of evidence he had submitted, but that the landlord had said during a visit that other residents had also complained about the same neighbour.
25. The landlord completed a stage 2 review of the complaint and sent a letter to the resident dated 22 February 2022. The landlord said it had reviewed the first response and maintained its position. The landlord reiterated that it was no longer able to accept evidence through WhatsApp and the reasons why. It advised the resident he could submit evidence either through email or online. It said that following further investigation it found the following information:
    1. On 17 June 2021, the resident provided recordings of noise disturbance and the landlord sent a warning letter to the perpetrator.
    2. On 6 September 2021, the resident reported further instances of noise. The landlord requested the resident contact the local authority’s environmental health department as they have a statutory obligation to investigate reports of noise nuisance and can visit to witness noise and gather evidence. The landlord would then work with the local authority to help resolve matters.
    3. On 23 September 2021, the landlord offered to visit the resident to discuss the situation further. It also advised that it could arrange mediation with the neighbour and asked the resident whether he wished to consider moving as another option. The resident declined these options.
    4. The landlord acknowledged how difficult the resident was finding the situation, and said it was committed to supporting him and improving his situation. It said its previous offers remained available for the resident to consider.

Post final complaint response

26. The resident contacted the landlord on 3 March and 2 April 2022. The resident advised that at the visit on 18 November 2021 he told the landlord 3 other residents were experiencing ASB from the same neighbour and the landlord visited those residents the day after. The resident said irrespective of the other residents’ information, the landlord was making up excuses and suppressing evidence. He said hundreds of reports of noise nuisance going on for years had been submitted. The landlord responded and said the stage 2 outcome explained the landlord’s position and the next steps if he remained dissatisfied.
27. The resident contacted the Ombudsman on 18 July 2022 to escalate his complaint. He has provided information to the Ombudsman of events since the landlord sent the final stage complaint response. The resident explained that he felt the landlord had not taken any action to address the ASB and explained the result of the ASB on him and his family. He stated they are anxious and stressed, and not sleeping or eating. The resident stated his partner and him had been dismissed from their jobs as they were too anxious to leave the property.
28. He said that his family was physically and verbally attacked in April 2022, and the landlord did not take any action. From the contact log provided by the landlord, the resident reported this to the landlord on 3 October 2022. The resident said this was recorded but does not state whether he reported the incident to the police.
29. The resident also provided a copy of a letter from his GP dated 16 August 2022 that was sent to the landlord. This letter stated that the resident’s children had sensory processing difficulties and that loud noises had a significant impact on them. The resident had expressed concern to a GP that the children were regularly woken up and upset from the noise, impacting their wellbeing and education. The GP expressed concern that the CCTV camera belonging to the neighbour pointed directly to the resident’s door and could be capturing images of vulnerable children.

Assessment and findings

30. It is not the role of the Ombudsman to establish whether ASB was actually perpetrated or by whom, nor to tackle the ASB itself. The Ombudsman seeks to determine whether the landlord acted fairly and reasonably to the resident’s reports of ASB and consider what was fair in all the circumstances of the case.
31. From the correspondence seen, the landlord has responded to all the emails the resident sent, usually on the same day. The case officer asked to speak to the resident on the phone to discuss the progress of the case, which he declined. The resident requested a visit from the ASB case officer, so that they could understand the concerns of the resident in person. The landlord explained that this was not possible as the ASB case officers are based nationally and offered to send a local customer liaison officer instead who would then liaise with the ASB case officer. The landlord gave a reasonable explanation for why the case officer was not able to attend and provided an alternative option.
32. The resident has complained that he was no longer able to submit evidence to the landlord by using Whatsapp, explaining he found it cumbersome to submit evidence another way. The landlord has provided a reasonable explanation for the reasons why it could no longer accept evidence this way and provided alternative methods for the resident to report ASB, through email or the online form. The evidence shows the resident has then used these routes to report incidents of ASB as the landlord has received incident reports via these methods and requested further details from the resident in its correspondence. There is no evidence to suggest the landlord said it could no longer use WhatsApp as a way of suppressing evidence as claimed by the resident.
33. The landlord has stated that it works in partnership with the local authority’s environmental health team. In this case, the resident said the local authority had advised him that the landlord was responsible for responding to the noise complaint. Although the landlord is responsible for taking proportionate action against their tenants who are perpetrators of noise nuisance, the local authority has different powers to the landlord. As the landlord was unable to establish noise nuisance, it was reasonable that it asked the resident to report noise to the local authority who have powers to witness noise and declare a statutory noise nuisance. If the local authority then serve a noise abatement notice this would provide the landlord with independent evidence and enable it to consider whether it was appropriate to take legal action. The landlord offered to contact the local authority if the resident reported the noise to them and they said they were unable to assist him. It was reasonable that the landlord explained its position in relation to noise the resident reported and offered its support in his communications with the local authority.
34. Although no evidence has been provided by the landlord about its contact with the police, the landlord has stated in correspondence with the resident that it had previously spoken to them about neighbour B, and correspondence showed that the police had been involved in the case of neighbour A. The landlord was awaiting the result of a court case before proceeding with further action against neighbour A, which the resident said was reasonable.
35. In his correspondence, the resident stated that he was aware the landlord had spoken to other neighbours in November 2021. Although the nature of the information received is not known, this demonstrates that the landlord had attempted to gain evidence and information from other neighbours to provide supplementary evidence and help inform its actions.
36. It is good practice for a landlord to contact a tenant if they are an alleged perpetuator of ASB. This makes a tenant aware of a possible tenancy breach and that unreasonable behaviour and noise nuisance for example, are not acceptable. The landlord wrote to neighbour B about an incident of ASB and spoke to them about their behaviour during the ASB case. The landlord has demonstrated it gave the neighbour an opportunity to address their behaviour. The landlord explained to the resident that it had not received sufficient evidence since it spoke to neighbour B to warrant further action. It was reasonable that the landlord explained to the resident that one confirmed incident of ASB did not warrant legal action and attempted to manage the resident’s expectations in this regard.
37. The use of CCTV and ring doorbells is a difficult area for the landlord to get involved in. The situation was made more complex as both residents had a form of CCTV or ring doorbell. Neighbour B advised the landlord they would be prepared to remove theirs if the resident did the same. The landlord needs to show it has considered matters fairly and carefully, which the evidence indicates it did in this case. It was appropriate for the landlord to then explain to the resident that it was unable to take action to force the removal of neighbour B’s CCTV and provide further information to him about contacting the police or ICO.
38. Before a landlord considers legal action against its tenants, it requires a significant amount of evidence of tenancy breaches and there is no indication that the landlord had sufficient evidence in this case. The landlord took appropriate action in response to the resident’s ASB reports. The landlord spoke to the resident about other options available to help resolve the situation and support the family, including mediation and moving, which he refused. This Service has seen no evidence that the information available to the landlord warranted further action against the neighbour. Given that there was no clear evidence to confirm neighbour B had breached the terms of the tenancy agreement, it was reasonable for the landlord to consider non legal options in the circumstances.
39. The landlord states in its policy that it will carry out a risk assessment when a resident makes a report of ASB. The previous investigation by this Service referred to a risk assessment carried out in 2020. Throughout some of the more recent correspondence with the landlord and this Service, the resident has reported that the ASB had a negative impact on him and his family and expressed distress in some of his communications. The resident has also provided information from the GP who expressed concerns about the impact the ASB was reported to be having on the children and describes them as vulnerable. As this is a longstanding case and the landlord said that it has no vulnerabilities recorded for the resident, it would be advisable for the landlord to reassess the resident’s needs and consider making a referral to specialist support services. This will be a recommendation made in this report.
40. Over the course of the ASB reports, 3 case officers have looked at the case and the landlord has reviewed the case with internal and external solicitors. To provide some reassurance to the resident, the solicitor also contacted him directly to confirm it had fully considered the evidence and the case had been thoroughly reviewed.
41. The Ombudsman understands how difficult events must have been for the resident, and how he and his family were affected. However, the evidence shows that the landlord considered his accounts and clearly took steps to try to resolve the issue and gather evidence. The landlord then explained it did not have sufficient evidence to warrant enforcement action against neighbour B.
42. Cases where there is a history of ASB over an extended period, such as this, can be challenging for a landlord to manage. In practice, the options available to a landlord to resolve a case may not extend to the resident’s preferred outcome and it therefore becomes difficult to manage expectations. In such instances, closing a case after following the ASB procedures and considering the options available is necessary, even if that resolution is not the outcome requested by the resident.From the evidence provided, the landlord has dealt with this matter in the most proportionate way possible given the evidence obtained.
43. The landlord has kept the resident informed of progress and advised him that it would look to close the case. Considering the longstanding nature of the case and as there was no further reasonable action that it could take to resolve the matter, it was appropriate for the landlord to advise the resident it was unable to take legal action against neighbour B and then close the ASB case.
44. There are no further details of the incident in April 2022 reported to this Service (after the landlord’s final complaint response letter) where the resident alleged he was physically and verbally attacked. If this has been reported to the landlord, it would be expected to promptly review any new evidence, liaise with the police and determine whether the ASB case could be reopened. However, the handling of this incident has not been investigated as part of this report as it occurred after the final complaint response.

Determination (decision)

45. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there has been no maladministration by the landlord in its handling of the resident’s reports of ASB.

Reasons

46. The landlord has explored the resident’s concerns in relation to the noise nuisance and CCTV, and carried out the actions this Service would expect, such as contacting the perpetrator, offering mediation, and attempting to gather further evidence.
47. The landlord has attempted to manage the expectations of the resident and kept him updated on the status of the case.
48. The landlord has reviewed the evidence thoroughly and provided a reasonable explanation to the resident as to the reasons why it was closing the ASB case.

Recommendations

49. The landlord to contact the resident to complete an up to date risk assessment and discuss whether a referral to an external support organisation would be beneficial for his and his family’s welfare.
50. The landlord should reply to this Service with its intentions in regard to this recommendation within 4 weeks of this report.