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One Vision Housing Limited (202010064)

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REPORT

COMPLAINT 202010064

One Vision Housing Limited

30 June 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

  1. The complaint is about the landlord’s handling of the resident’s report of anti-social behaviour (ASB) in relation to an incident on 27 June 2020.

Background and summary of events

Background

  1. The resident occupied a 2-bedroom flat on the 10th floor of a high-rise block of flats. He suffered from mental health and physical impairments. He occupied the property under an assured tenancy which began on 18 August 2014.
  2. The resident made a report about the son of a neighbour of the resident. This  investigation report will refer to that neighbour as neighbour A. Neighbour A held a tenancy in a flat on a different floor to the resident. Neighbour A’s son was living at neighbour A’s property, but was not a tenant of the landlord.
  3. The Ombudsman notes that the resident has raised further concerns since this complaint completed the landlord’s complaints procedure, however under 39(a) of the Housing Ombudsman Scheme, the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, were made prior to the resident having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure, and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale. In the circumstances, this report will not investigate events that occurred after 27 October 2020, as they would fall outside the Ombudsman’s jurisdiction, pursuant to paragraph 39(a) of the scheme.
  4.  

The tenancy agreement

  1. The tenancy agreement set out that the tenant should not behave in a menacing threatening or abusive manner in the locality of his home including to neighbours, or behave in a way that caused, or was likely to cause, harassment, alarm or distress to any person in the locality. The tenant was also responsible for the behaviour of anyone living or visiting their home or in its locality.
  2. The tenant must occupy the property and not part possession with it, as well as inform the landlord if the tenant did not occupy his home or was away from it for more than four weeks. By Section 1 of the Housing Act 1988, a tenancy would lose the protection of the said act if the tenant did not occupy his home as his only or principal home.

The ASB policy

  1. The landlord would investigate reports of behaviours that fell within its definition of ASB. It stated that it was committed to supporting communities to create safer environments and communicating to all customers a culture of non-acceptance of anti-social behaviour, domestic abuse and harassment.
  2. The landlord would expect the tenant to abide by the terms and conditions of the tenancy agreement at all times. It would expect tenants to cooperate with its investigation processes including recording incidents. The landlord stated it was committed to investigating all reports that it deemed to be ASB and would endeavour to work with the complainant to formulate an appropriate response, and would involve external agencies.
  3. Reports that were classed as being ‘high level’ and at greatest risk would be passed to a specialist team, and included where violence or threats of violence had been made and a danger to individuals remained. At an initial meeting, the landlord would offer to complete a risk assessment and agree a plan of action with the customer. This would set out what steps each party would take to address the issues raised.
  4. The landlord delivered successful outcomes by ensuring all actions were backed by a sound evidence base. Further action could include the use of: ASB diaries, and/or use of CCTV recording equipment.
  5. The landlord promised that all actions taken to address ASB were reasonable and proportionate at all times. The landlord had discretion to apply for a “without- notice” injunction where there was actual or threatened violence or where it was reasonably believed that there was a risk of harm to the victim. After the landlord had conducted thorough investigations of reports, actions could include investigating in order to establish the facts of the case, interviewing those alleged to be responsible for the cause of concern, and issuing a yellow warning cardas a first level warning. “Red warning cards” were served as a final warning before legal action is to be commenced. They were used where there was no improvement in behaviour, where new incidents were reported or if the behaviour was of serious nature. Examples of this could include actual or threatened violence or conduct, which the landlord could reasonably deem to be harassment or abuse.
  6. Legal proceedings could include injunctions. The landlord’s decision whether or not to take legal action would be on a case-by-case basis considering relevant factors. In extreme cases of use or threat of violence or significant risk of harm, the landlord had the right to apply for without notice injunctions, injunctions excluding an offender where the conduct included the use of threat or violence and there was significant harm to others. The landlord could also apply to the courts for possession of the relevant property, where there had been serious and/or persistent incidents and usually when other attempts had failed to bring about an appropriate change in behaviour.

Chronology

  1. While the evidence considered in this investigation refers to the resident having made a number of reports concerning his neighbour and his son, no contemporaneous evidence of relevant events prior to 27 June 2020 has been provided by either party to this service, except for two crime references dating from 2019. 
  2. The resident’s advocate had written to the landlord on 26 June 2020 requesting it confirm the terms of an agreement reached in relation to assistance for the resident to move and which is refereed to below.
  3. On 27 June 2020, the resident reported that neighbour A’s son had “verbally and physically threatened him again”. He informed the landlord that he had recorded the entire incident. He queried how the son had accessed the resident’s floor. He reported the matter to the police, who had issued a crime number. He stated that he had reported a similar incident two weeks prior. He wanted the landlord to evict the resident.
  4. On 29 June 2020, the landlord contacted the police to enquire whether or not they would pursue the matter. It also investigated whether there was any CCTV footage relevant to the incident, and how many fobs were in existence in relation to neighbour A’s property. It had spoken to neighbour A previously in relation to noise reports. The landlord identified footage of a male using a yellow fob going to the resident’s floor using a fob issued to neighbour A.
  5. The landlord discussed the matter with the resident on 1 July 2020. The resident reported that he had been shouting down to another neighbour about noise and shouted to them “Put something on your feet!”. Immediately after, he heard heavy banging on his front door and the voice of a male shouting a threat to the effect he was going to kick the resident’s head in. The perpetrator also swore and used abusive language. The resident had shared the recording of the incident with the police. He was of the opinion it was neighbour A’s son, but he was not able to identify him positively. The landlord informed the resident that the son had used a fob belonging to neighbour A, and that it would investigate further, as that fob should not be able to provide access to the resident’s floor. Whilst this was a police investigation, it would assist where it could, but the police would investigate before it could approach the relevant individuals.
  6. The landlord wrote to the resident on the same day confirming the telephone conversation :
    1. The resident had made a formal witness statement to the police.
    2. The resident was in possession of recordings of the abuse and heavy thumping at his front door.
    3. The police would discuss the case in further detail the following day and go over any proposed actions.
    4. The landlord had emailed the relevant police officer that it had CCTV footage of a male at the main entrance to the block.
    5. Investigations indicated that the fob used by this male was registered to neighbour A.
    6. They discussed the resident’s belief that the son had been able to gain access to his landing and front door. The landlord would investigate further via its CCTV team.
    7. Whilst this matter was being investigated and pursued by the police, the landlord was not able to become directly involved other than to support the police investigation.
    8. It would hold off approaching neighbour A and the occupant so as to avoid tainting any possible prosecution or evidence required in that process. Once the police have either taken action or closed the case, it could then formally pursue any tenancy enforcement issues that the evidence supported.
    9. It invited the resident to make any further reports and to refrain from approaching neighbour A and any guest at his property including shouting up to neighbour A’s property.
  7. On 1 July 2020 the landlord wrote to the investigating police officer offering the CCTV footage and downloaded images.
  8. According to the landlord’s records on 1 July 2020, neighbour A had previously denied that his son resided in the property. It observed that was the first report by the resident that was supported by evidence. The landlord was concerned that if it spoke to neighbour A before the police did, he would have time to prepare his story.
  9. The resident made a number of reports from July onwards which increased in frequency from bi-monthly, to bi-weekly in September, then daily, sometimes several times a day from October onwards. The reports were about other matters but included that neighbour A’s son had been occupying the neighbour’s property, that he was occupying the property illegally, that the resident suspected tenancy and/or benefit fraud, and that the son was noisy.
  10. According to the landlord’s records, the resident had been on the housing register with a high priority for a long time but had rejected all previously viewed properties. The landlord had suggested that the resident was not suited to high rise living but the resident disagreed.
  11. The resident replied on 6 July 2020 to the landlord’s letter of 1 July 2020.
    1. Neighbour A’s son was not a guest but an illegal tenant committing benefit fraud.
    2. He did not engage in shouting but did challenge nuisance noise, as suggested  by the landlord’s policy.
  12. On 6 July 2020, the landlord confirmed the following agreement to the resident’s advocate in response to the advocate’s letter of 26 June 2020 as follows:
    1. The landlord would move the resident on a “management let” basis and would make every effort to allocate a suitable property.
    2. The resident was willing to consider most areas, providing the property offered was a similar standard to his current property.
    3. The landlord was willing to pay the resident’s moving costs regardless of whether he moved with the landlord or another landlord.
    4. The resident could use the removal company of his choice as it would do the packing and unpacking which he would be unable to do himself.
  13. The police wrote to the landlord on 6 July 2020 stating they were not taking the matter further due to evidential issues. The police reported that the resident had informed them that the landlord were liars and it had not offered him a property. According to the landlord’s records, the evidence appeared not to be substantive enough to prove the case beyond all reasonable doubt. Its CCTV service heard the heavy banging.
  14. On 7 July 2020, the landlord arranged to investigate the CCTV.
  15. On the following day, it wrote to neighbour A in detail, referring to it following up a telephone conversation and providing a warning that the outcome of the investigation could affect his tenancy, and reminding him of the terms of the tenancy, with a clear message that there should not be a repetition of the incident. It referred to an agreement that neighbour A would speak to his son, and it would be best if neighbour A returned to his own property. It stated it awaited a decision from the police on the matter.
  16. On 13 July 2020, the landlord wrote to the resident and informed him as follows:-
    1. It had made a Data Protection Act request for the CCTV footage.
    2. It had spoken to neighbour A, and relayed the contents of its letter to neighbour A.
    3. In relation to a noise report concerning neighbour A’s son, the use of a shower would not be considered to be a breach of tenancy agreement.
    4. It invited the resident to report any further similar incidents to the police or the landlord.
  17. The resident replied on 15 July 2020 as follows:-
    1. He remained fearful.
    2. He had reported the shower use as evidence of occupation at neighbour A’s property.
  18. On 3 August 2020, neighbour A requested that the landlord obtain the resident’s audio recording of the incident. He admitted his son was staying in his property, and that he used a fob that was issued to neighbour A. His son had admitted that he went to resident’s A’s front door to remonstrate with him over his shouting up to him about noise, but denied making threats.
  19. On 4 August 2020, the landlord wrote to the resident as follows:-
    1. The police would not be pursuing the reported incident of 27 June 2020 as the evidence did not meet their evidential requirements.
    2. In order to exhaust all possible avenues, it requested the resident provide a copy of the recording(s) it made of the incident.
    3. Neighbour A admitted that his son did come to the resident’s door to complain about him shouting up to his flat but denied his son made any threats of violence, and any recording of the incident that supported the allegation of threats would help.
    4. It would also look at any video evidence and consider its own evidential thresholds in relation to enforcement proceedings.
    5. Neighbour A’s son was living at his property. However if there were substantiating evidence supporting any action against his son then this arrangement may be affected by such action.
  20. On the following day, 5 August 2020, the landlord wrote to neighbour A as follows:-
    1. The police would not be pursuing this matter owing to a lack of evidence that required them to prove matters beyond all reasonable doubt.
    2. It had requested the recorded evidence from the resident.
    3. It would review any CCTV evidence.
    4. It would then decide on next steps.
    5. It advised that his son should refrain from approaching the resident or his front door.
    6. Neighbour A should make any reports to the landlord and not deal with matters himself.
    7. It had informed the resident that his son was currently residing at neighbour A’s property for the foreseeable future so there would be no question of the resident making allegations neighbour A’s son was living in the property illegally.
    8. Should the landlord decide that there had indeed been threats made by his son, this could lead to enforcement action and his son being required to leave his property.
  21. On 11 August 2020, the landlord made further enquiries about the CCTV, and the circumstances in which the son was able to access the resident’s floor. The fobs only allowed access to the tenants’ own floors. It was not possible to ascertain whether the doors had been left open for the son to access the resident’s floor.
  22. On 13 August 2020, the landlord wrote to the resident as follows:
    1. It had the CCTV footage which it would review.
    2. The police, whose decision it was to pursue the matter, stated that the evidence simply failed to reach their required evidential threshold of being “beyond all reasonable doubt”, and the resident could not identify the son due to the resident never having met him.
    3. It had not implied that it did not believe the resident had any recordings.
    4. It repeated its request for the recorded evidence.
    5. There were no “ghost fobs”. It explained that all fobs used to gain access were programmed and issued by the landlord. They could not be copied and were not transferable from block to block.
  23. The resident replied that he had no problem with its request for the audio, but they did not “translate into email and were inaudible. He considered that neighbour A and his son were committing ‘tenancy fraud’.
  24. According to the landlord records of 14 August 2020, the CCTV only showed neighbour A’s son coming in and out of the main door entrance. It also showed the fob was used by the neighbour’s son at 6.27am on 27 June 2020 to enter the block and again at 9.18am when he left the block. However, without proof that he was definitely on the resident’s floor and came to his door, it could not proceed with legal action. The resident was only able to identify neighbour A‘s son by descriptions given to him by others, not by recognising him at the time of the incident.
  25. According to the landlord’s records of 18 August 2020, the police stated that they had enough evidence to issue a fixed penalty notice (FPN) in relation to an offence under Section 4 of the Public Order Act 1986, given that neighbour A admitted that his son went to the door of the resident.
  26. On the same day, the landlord wrote to the resident as follows:
    1. It suggested the resident uploaded his recording to a pen drive or DVD. It needed to prove neighbour A’s son threatened him as described.
    2. It had reviewed the CCTV evidence. It showed the neighbour’s son entering the block and exiting the block, but it did not have any CCTV footage showing him anywhere else in the block due to the cameras being offline, as the system was being systematically upgraded.
    3. It would await the recordings from the resident before making any final decision as to its next steps in this matter.
  27. The landlord wrote to the resident again on 28 August 2020, and noted that there had not been any progress in relation to the resident providing the recordings. It would wait the outcome of criminal proceedings and consider next steps. It again explained that it could access the building in order to carry out repairs but not to attend face-to-face meetings.
  28. On 4 September 2020, the landlord spoke to the investigating police officer who informed it of progress and intended action. The police had two recordings. One related to an incident “flat to flat so did not qualify as a Public Order Offence. However, the subsequent action, when neighbour A’s son went to the resident’s front door and banged heavily on the same, and shouted through the letterbox equated to a public order offence as this had occurred on a communal landing. The son’s threats were clearly heard, and the police would be proffering a fixed FPN.
  29. On 10 September 2020, the landlord wrote to the resident to inform him that the police investigation was soon to be concluded in relation to the criminal prosecution. Once it was concluded, it would seek advice from its own solicitor in relation any next steps. It said the resident did not have to keep sending emails about who was in occupation at neighbour A’s property. It could monitor fob use if necessary.
  30. The resident wrote to the landlord on 11 September 2020 to state that he had been updated by the police that the matter would not be treated as an offence which was not consistent with previous information. Either way, he expressed anxiety neighbour A’s son was still in the building and wanted the landlord to ban him.
  31. The resident wrote to the landlord on 16 September 2020 (and again on 21 September 2020) stating that he had been informed that the neighbour’s son had admitted to the offence and would be fined accordingly. He maintained that the son had been living illegally in neighbour A’s flat for many years, and this constituted benefit fraud. He also felt that the ASB escalated due to the landlord not enforcing its ASB policies. His view was that not only should his son be evicted, but the father should be sanctioned.
  32. The landlord replied on 22 September 2020 stating the resident would hear formally from the police the following week. It sent a “red card” to neighbour A on 23 September 2020 and confirmed the same to the resident. The son received a fixed penalty fine for a Section 5 public order offence.
  33. The resident replied (the email is not dated) that he was of the view that the red card served on neighbour A was meaningless, and it was not neighbour A who had committed the offence in any event, but his son. The resident queried why eviction had not been mentioned.
  34. On 29 September 2020, the landlord’s records show that it considered the resident’s request internally that neighbour A’s son be evicted. It was of the view that it had not raised the resident’s expectations. It would not now be possible to evict the son, given the relevant incident occurred some months ago. The landlord took the view that the red card was proportionate based on the evidence, and that there had been no more occurrences. It considered that the son was permitted to occupy the flat, contingent on future conduct. It also considered that, had the landlord been able to deal with this matter (rather than the police), and dependent upon the words spoken”, it may have got him excluded by way of an injunction. But given the passage of time and there being no incidents in between, this would be an uphill battle. Moreover, the son was there on a formal basis. It would make enquiries as to exactly what admissions were made by the son.
  35. The landlord wrote to the resident on 30 September 2020 as follows:
    1. The reported case of anti-social behaviour had now been dealt with by a formal final warning to neighbour A.
    2. The case had now been closed but the landlord invited the resident to report any further verbal abuse.
    3. It asked the resident to desist in sending unsolicited emails containing photographs or unsubstantiated reports of a speculative nature in relation to neighbour A .
  36. According to the landlord’s internal email, the landlord reported a telephone conversation with the resident on 2 October 2020. The resident accepted the landlord could not evict someone without a court order. It reported as follows:
    1. They discussed the resident’s rehousing.
    2. The resident believed that the landlord was lying about the fob, and he was unhappy regarding the son living at neighbour A’s property.
  37. On 6 October 2020, the landlord wrote to the resident’s councillor as follows:-
    1. Legal proceedings require stronger evidence of more serious tenancy breaches than those resulting in red cards. Judges look for the actions of the landlord to be proportionate and reasonable.
  38. On 7 October 2020, the resident made a formal complaint as follows:-
    1. The issues at neighbour A’s flat had been a long standing ASB issue these past six years that the landlord allowed to escalate, compromising his health, safety and security.
  39. The investigating complaints officer of the landlord contacted the resident on 13 October 2020 with its response.
    1. Neighbour A was issued with a red card in line with its policy, which it quoted in its response. It had concluded that the warning was appropriate and proportionate in the circumstances. The complaint was not upheld.
  40. The resident replied on 14 October 2020 enquiring about the second stage of the complaints process.
  41. The landlord replied on 15 October 2020 saying it accepted escalation of the complaint.
  42. On 20 October 2020, the investigating officer of the landlord spoke with the resident as follows:-
    1. It discussed that the resident had suffered ASB from neighbour A for 5 years, and had reported it for the last 3 years. It included verbal abuse from neighbour A and his son.
    2. Neighbour A’s son lived in neighbour A’s flat “illegally.
    3. A fob was used on different floors by neighbour A’s son.
    4. Rather than serving neighbour A with a red card, the landlord should have obtained an injunction.
    5. The resident did not want to move out of his flat.
  43. On 27 October 2020, the landlord wrote to the resident with its conclusions as follows:-.
    1. The red card warning on neighbour A due to the behaviour of his son was justified and it had followed its policies and procedures correctly. The red warning card was proportionate, and incidents of a similar nature had not occurred since. The red card warning card was in line with its policy which stated thatRed card warnings may also be issued if the behaviour is of a serious nature. Examples of this may include actual or threatened violence or conduct.’ In relation to evicting neighbour A’s son, tenants were entitled to have people visiting or residing at their property as long as they conducted themselves in line with the tenancy agreement, and, aside from the incident, this had been the case.
    2. It offered support, including making referrals to other supporting agencies. The resident had a case open with an advocacy service.
    3. It invited the resident to contact the landlord to discuss the complaint further or to contact its tenancy mediation panel.
  44. While events post 27 October 2020 are beyond the remit of the report, it is noted that on or around 14 November 2020, the resident reported a male attending his front door on 14 November 2020. The landlord checked both the fob use and stairwell movements, but no evidence emerged. The evidence was not clear whether the resident was reporting neighbour A or his son. It is also noted that the landlord stated on 1 March 2021 that it would not pay for the resident’s moving expenses.

Assessment and findings

  1. A note on the period covered by this report. The evidence provided to this service dates from 27 June 2020. The resident made a number of references to previous reports of ASB against him by neighbour A and his son, but neither party has provided evidence of those reports, except for crime report references from mid-2019.
  2. The Ombudsman does not have a copy of neighbour A’s tenancy agreement as that would be a matter between the landlord and neighbour A. However, it is reasonable to conclude that neighbour A’s tenancy would be subject to the same or similar terms as the resident’s. Moreover, in its correspondence, the landlord refers to terms of the tenancy agreement in relation to neighbour A’s responsibility for his visitors or occupiers that are in the resident’s tenancy agreement.
  3. It was reasonable and appropriate of the landlord to immediately start investigating the resident’s report by investigating CCTV footage, which fobs were used to gain access, in whose possession were those fobs, and to make enquiries with the police on receipt of the resident’s report of a verbal assault by neighbour A’s son. It was also reasonable that the landlord left the initial enquiries to the police so that neighbour A and his son were not ‘primed’. Moreover, the police have greater investigatory powers. It was appropriate, as in line with its policy and good practice, that the landlord cooperated with the police. It was proactive in its own investigations and secured and provided all the information to the police it was in its power to do so. It made enquiries of its various departments and the CCTV team.
  4. The landlord also acted reasonably and appropriately in keeping the resident updated throughout every step, including the outcome of its investigations and its communications with the police as they occurred. It also addressed the resident’s various concerns regarding the fob use in the building, and the occupation by neighbour A’s son in neighbour A’s flat.
  5. While it was reasonable to investigate the occupation by neighbour A’s son of neighbour A’s flat, it was also reasonable of the landlord not to take into account the resident’s view that neighbour A’s son was living at the property illegally, and that was evidence of benefit fraud. While a tenant of an assured tenancy should be occupying his home as its sole or principal home, the landlord was entitled to be satisfied with the enquiries it made. While due to data protection, the service is not privy to those arrangements, in due course the landlord regularised that occupation. The landlord was entitled to make such arrangements as it saw fit with its other tenants. It made the reasonable caveat that neighbour A’s son’s continued occupation would be dependent on his conduct. It was reasonable for the landlord, having satisfied itself that neighbour A’s son occupation was regularised, and that it had investigated the use of fobs, that it closed this line of the resident’s enquiry.
  6. Once the police initially stated it would not take further action, the landlord acted appropriately in promptly making enquiries of neighbour A. As a result, it obtained a key admission by neighbour A that his son did attend the resident’s property on 27 June 2020 as alleged by the resident. This, combined with the resident’s audio recording, ultimately led to neighbour A’s son receiving a fixed penalty notice in relation to the incident.
  7. While it is not clear why the CCTV was of importance at that stage, given neighbour A’s admission that his son had knocked on the resident’s door, it was reasonable for the landlord to pursue its investigations, given neighbour A’s son knocking on the door was not evidence in itself of the threat. Given, according to the resident, his recording substantiated his report, the landlord also acted reasonably in pursuing all avenue of enquiries by requesting the recording from the resident. It repeated this request on at least three occasions, but the resident did not provide it. It is not clear why the landlord did not consider requesting the recording from the police. However, while there is a data sharing information protocol, there may have been issues of data protection about sharing hard evidence that may have prevented the police providing the recording, and it may have been a request beyond what the police would be willing to provide. Ultimately, it was for the resident to provide the recording to the landlord. The resident cited historical technical issues with providing an effective recording, however there is no evidence that the resident attempted to send the recording to the landlord by whatever means, which was surprising given it was so central to pursuing a civil action.
  8. It was appropriate and in accordance with its ASB policy that the landlord considered enforcement action in relation to neighbour A’s son being required to leave the property. Without the recording, it was reasonable for the landlord to wait for the outcome of the criminal action before deciding on the next steps. While the police formed the view it could pursue action under Section 4 of the Public Order Act 1986 on 18 August 2021, it took the police another five weeks by the time it gave the neighbour’s son a fixed penalty notice under Section 5 of the same act, which was a lesser offence. While the police confirmed on 4 September 2020 that the threat could be clearly heard, the landlord was entitled to wait until the police had taken formal steps on or around 23 September 2020, particularly as the police changed the basis of the FPN to a lesser offence.
  9. It was a reasonable exercise of the landlord’s discretion to have offered the resident a management move, in other words a transfer to another of its properties. It arranged for auto-bids on the resident’s behalf with the local authority, and it also agreed that the resident could be allocated a two-bedroom property, despite the fact the resident, on the face of it, had a one-bedroom need and therefore a one-bedroom entitlement. It is noted that the landlord appeared to have changed its mind regarding offering to pay for the resident’s moving expenses, including assistance with packing his possessions. The Ombudsman would expect a landlord to carry through its promises unless it had very good reasons to withdraw them. However, the resident did not wish to move, given he had a good relationship with some of the neighbours, and it was convenient for his family to visit, on whom the resident depended.
  10. The resident’s complaint of 7 October 2020 focussed on the non-action against neighbour A and his son. This would have been an opportunity for the landlord to summarise its actions to date and its reasoning for not pursuing the matter. The content of the response is less detailed than the Ombudsman would expect. Clear explanations assist in the management of a resident’s expectations, and good relations. It did not fully reflect its reasoning for not taking action, or acknowledge that its decision would have been disappointing, which may have assisted the resident in fully understanding the landlord’s decision. It could have explained the difficulties it may have faced in pursuing proceedings as it did to the councillor on 7 October 2020. However, the landlord had managed the resident’s expectations by stating that it would consider it once the criminal action was concluded. In the main, the landlord had kept the resident fully informed of its actions, its next steps, and its decisions, as well as those of the police, throughout the process. The landlord also exercised its discretion reasonably by escalating the resident’s complaint without a formal request. It was reasonable for the landlord to explain yet again the significance of a ‘red card’ or final warning and to summarise in fuller details steps it had taken. It also exercised its discretion in inviting the resident to discuss the complaint further.
  11. It is the resident’s contention that the incident of 27 June 2020 was a) foreseeable and b) was the ‘final straw’ and therefore should have resulted in a more severe penalty than a final warning. The Ombudsman has been unable to investigate the resident’s reports made prior to 27 June 2020, due to the lack of contemporaneous evidence, aside from two crime numbers dating from 2019. However, the Ombudsman would not have expected the landlord to have foreseen events. It is reasonable to conclude from the evidence that the landlord did not have sufficient evidence to conclude that neighbour A’s son had made previous threats against the resident. On 1 July 2020, the landlord referred to the 27 June 2020 being the first incident where there was any evidence substantiating the resident’s report of anti-social behaviour in relation to neighbour A. No such evidence has been provided to this service. In the circumstances, the landlord was entitled to make a judgement based on the incident of 27 June 2020 and not anything prior.
  12. While the landlord informed the resident it would seek advice from its solicitors, and there is no evidence of it having done so, it was entitled to form its own opinion from its own experience. It was appropriate of the landlord to consider injunction proceedings, in accordance with its policy, and in accordance with that policy, the decision was within the landlord’s discretion.

 

  1. The resident took the view that the red card was meaningless, however, in accordance with the landlord’s policies, a red card was a final warning. The Ombudsman would expect the landlord to follow through its assurances and treat the red card as a final warning, if the relevant circumstances arose. It was also a means of controlling the behaviour of neighbour A’s son, and indeed neighbour A. The landlord was, in the circumstances, entitled to close the case but respond to any fresh reports. The Housing Ombudsman would expect the landlord to consider any new report in the context of the final warning.
  2. The resident has informed this service that there were further incidents which occurred after the completion of the landlord’s internal complaints procedure on 27 October 2020. It is the resident’s contention that if there were further incidents, this would signify that its decision not to exclude the neighbour A’s son was incorrect. While the events which took place after 27 October 2020 are not in the remit of this report, and outside the Ombudsman’s jurisdiction, it is noted that there is only evidence of one further report by the resident, relating to 14 November 2020. It is also noted that the landlord investigated CCTV, stairwell movements and fob use as a result of that report, but did not trace any evidence. In any event, the Ombudsman would not make a judgment on the landlord on the basis of hindsight.
  3. It is understandable that the incident of 27 June 2020 was distressing for the resident, and it was clearly frustrating for the resident that it did not result in neighbour A’s son being excluded.
  4. It is not the role of the Ombudsman to decide on what is the appropriate action for the landlord to take, but to consider whether the landlord’s response was reasonable and appropriate. The Ombudsman would expect a social landlord to take a firm approach to anti-social behaviour, as required by its policy. The landlord was pro-active in its response. As set out above, it worked with the police, it pursued investigations into the CCTV and fob use, it requested the sounds recording from the resident. It obtained the admission that it was neighbour A’s son who attended the resident’s property on 27 June 2020.It kept the resident updated.
  5. The decision whether to seek to exclude neighbour A’s son was finely balanced. The Ombudsman has taken into account that the bar for seeking an exclusion against a non-tenant is lower than seeking possession or an injunction against its tenant. The Ombudsman would expect a robust response to ASB from the landlord, given that the landlord had “a culture of non-acceptance of anti-social behaviour”, and given what is good practice.
  6. The Ombudsman has taken into account that, even though the son was given an FPN in relation to a lesser offence than anticipated, of causing alarm harassment or distress by his use of threats rather than intent to cause that person to believe that immediate unlawful violence will be used against him’, the behaviour was still classed as anti-social behaviour.
  7. The evidence shows that the landlord considered the matter. The landlord concluded that a court would expect it to act proportionately. The landlord took the view that issuing court proceedings was not proportionate and the correct step was to issue a final warning. The outcome the resident hoped for would not be a certainty, as the decision would be a matter of the court’s discretion. The passage of time and the lack of further incidents would be a factor that the court may have taken into account in its decision. A court would consider whether it was just, convenient and proportionate to grant an injunction, and was therefore a discretionary matter for the court to decide, and not an automatic process.
  8. The evidence shows that the landlord’s intention to consider seeking an exclusion order and that it decided against doing so given nearly three months had elapsed since the incident. In the circumstances, it is reasonable to conclude that had the landlord had the recording sooner, it is possible that the decision may have been in favour of seeking an exclusion order against neighbour A’s son. It made its decision on the basis that nearly three months had elapsed since the initial incident, and there had been no further incidents reported. While disappointing for the resident, the decision not to issue proceedings was a matter of judgment for the landlord. It decided that it was not proportionate to issue proceedings and a court would expect it to be proportionate. That was not an unreasonable basis for its decision.

Determination (decision)

  1. In accordance with paragraph 54 of the Ombudsman’s scheme, there was no maladministration in relation to the landlord’s handling of the resident’s report of anti-social behaviour (ASB) in relation to an incident on 27 June 2020.

Reasons

  1. While the resident was clearly distressed by the incident of 27 June 2020, the landlord responded appropriately, proactively and with transparency throughout the process, and by the time it had good evidence to support an application for an injunction, it took the view that it was not proportionate to issue court proceedings and seek to exclude neighbour A’s son, given almost three months had elapsed without further incident. While a finely balanced decision, it was a judgment it was entitled to make in the circumstances.