Orbit Group Limited (202128656)

REPORT

COMPLAINT 202128656

Orbit Group Limited

30 November 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

The complaint is about the landlord’s handling of the resident’s reports of anti-social behaviour (ASB), racial harassment, and abuse.

Background and summary of events

Background

The resident held a 5-year fixed term tenancy with the landlord which commenced on 21 November 2019. The tenancy was for a 3-bedroom 6-person house, which she lived in with her teenage daughter and 2 younger children.
The resident had been experiencing problems with her next-door neighbours who were also tenants of the landlord. The rear garden of the resident’s property had a public right of way through it, which the neighbours next-door and next door but one, had a right to use, to access their gardens.
Communication from both the resident and the landlord suggests relations had broken down between the resident and the neighbour in 2018. This was following an incident where the resident tried to speak to her neighbour about their son inappropriately supplying younger boys in the village, including her own son, with cigarettes. The neighbour responded with an aggressive and insulting outburst in the street.

Summary of events

On 23 August 2020, the resident wrote to the landlord advising them of an incident where her 3-year-old son was playing in the garden when the neighbour’s adult son swore at him. The resident questioned the neighbour’s son about his behaviour, and the resident said he hurled abuse at her, shortly followed by his mother joining in. This was just one of a number of incidents that had occurred over the past year with the neighbours, which had made them feel intimidated and unable to use their garden.
On 1 September 2020, the resident said she reported to the landlord that the neighbour’s son had been using cannabis and purposely blowing the smoke over the garden fence towards her.
The resident received permission from the landlord to put a bolt on the back garden shared access gate, for security for her young children. The exact date is unknown.
On 9 September 2020, the resident reported an incident where she said she experienced abuse from her neighbour. She said the neighbour was ferociously pulling at the shared access gate which had the bolt pulled across and when she went to assist, the neighbour shouted and swore at her telling her if she did not remove the bolt, she would kick the gate off. The landlord, on receipt of the reports from the resident, opened an ASB case.
On 20 October 2020, the landlord wrote to the neighbour about allegations of harassment; it acknowledged their denial of the allegation, but warned that if there was any re-occurrence of the behaviour, they could be subject to action against their tenancy.
On 24 October 2020, the resident emailed the landlord to report that her baby had been ill and crying, and in response the neighbours were banging on the wall, which was becoming a regular occurrence.
On 29 October 2020, the landlord responded to say that the neighbour had been spoken and written to. It asked the resident to contact the Council’s Environmental Health Team should the banging persist as they had statutory powers to investigate noise and so that the necessary evidence could be gathered.
On 2 December 2020, the landlord emailed the resident to check in on the situation with the ASB. The resident did not respond so the landlord emailed again on 8 December 2020, asking her to confirm the position as it had received no further reports, and it was looking to close the case.
When the resident did not respond by the end of the following day, the landlord closed her ASB case and emailed her notification it had done so.
The resident responded on 12 December 2020, stating there had not been much opportunity for the harassment to persist as she had been away from the property. When she was there, she had refrained from using the garden. She did still have some concerns and agreed to write to the landlord formally after the Christmas break.
The resident made reports to the police on 22 and 30 December 2020 about the neighbour intimidating her and recording her. The police wrote back stating they were unable to take any further action. It agreed that her neighbour was clearly trying to provoke her, and they suggested she should ignore them.
The resident wrote to the landlord on 4 January 2021 to report that she had been having car trouble and the roadside assistance company had advised her to start her vehicle weekly and leave it running for 20 minutes. When she did this, her neighbour’s husband had approached her in an unpleasant way about her leaving the car running un-attended, and stated it was illegal. A week later, the neighbour had started recording the resident’s car running and her home on their phone. The neighbours had also taken to wedging the dividing access gate open. Both the neighbour and the resident had dogs that did not mix well, so she had to keep her dog on a lead in the garden. Their dog entering her garden was not just an issue for her dog but also her small children. There was also the matter of privacy. She asked the landlord to “gently” intervene.
Receiving no response, she sent a follow up email to the landlord on 14 January 2021. The following day, the landlord responded, advising the previous ASB case had been closed last year, but they would assess recent events and get back to her. There was no response to this email from the resident. There was a later reference in an update from the landlord that confirmed it had discussed the events with the neighbour, and that it reviewed video footage provided by both parties, and determined no further action was required. The exact date this happened is unclear.
The resident reported an incident that happened on 1 March 2021, following her gardening with her 2 children. Within 10 minutes, the neighbour opened the back door and played loud rap music which repeated a derogatory term for black ethnic groups which the resident described as “the N word”, as well as lots of swearing. The resident asked her daughter to record the events. The resident then heard the neighbour refer to the resident a “a dirty N word” (resident’s description) which was captured on the recording.
On 17 March 2021, the resident engaged the support of an advocate from a race equality organisation. They wrote to the landlord 23 March 2021, on the resident’s behalf, asking for it to treat the resident’s case as a racial hate crime. The advocate advised that they had asked the police to do the same. They added the resident was suffering severe anxiety due to the situation and urged the landlord to assist in making the resident’s home and garden a safe space for her and her children to live.
The landlord responded the same day, requesting a call. It advised the representative that it had dealt with an ASB case for this address the previous year, and at the time the police took no action, but it was not aware of current issues. After further communication, the landlord agreed to open a new ASB case on 25 March 2021.
Having not had a response personally from the landlord, the resident contacted it again on 26 March 2021, stating that she had not received a response from it since its email of 15 January 2021 (which had stated it would look into the recent incidents). She asked that security to the garden gate be revisited, and for suspension of the access through her garden whilst the incident was being investigated.
The landlord responded the same day, advising it could not suspend use of the access based on an allegation. It also advised that it had assessed her email of 14 January 2021, but the case had already been closed as action had been taken and there was insufficient evidence to take the matter further. It confirmed that Covid restrictions had prevented progress of the usual process of visiting both parties. It said it was opening a new case now and due to the serious nature of the allegations, it would book an appointment and assess the gate.
On 29 March 2021, the resident submitted video footage and a diary log to the landlord, listing 10 incidents of ASB from the neighbour since 8 December 2020. The nature of these incidents included the neighbours making derogatory and racist comments (an example the resident gave was the neighbour saying “its black out here” when she entered her garden), intimidation through dividing gate insecurity and dog roaming, smoking cannabis in their garden and, whilst walking through the resident’s garden, unnecessarily staring at them through the window of their home and playing racially offensive loud rap music.
On 30 March 2021, the landlord advised that, on listening to the recording, it “could not really see what the main issue was”, other than it being loud and inappropriate. It would speak to the neighbour, and if the police found anything from the recording that they could action, the landlord would like to be notified. It opened a new ASB case and arranged an appointment to visit the resident. It later confirmed that if the police were able to act, it would consider limiting the access route to the neighbour, but advice would have to be taken from a solicitor as to whether they could do this.
On 31 March 2021, the landlord wrote to the neighbour about racially harassing the resident and playing offensive loud rap music. It advised that it was aware the police were investigating the matter and should they decide to take further action, there would be implications for their tenancy. The landlord committed to a visit in the near future to discuss the matter.
Following a landlord visit, the resident wrote to it on 11 April 2021, confirming she had received a case closure letter on 9 December 2020; however, she had been concerned about the outcome of her reports regarding events between 8 December 2020 and 9 January 2021. She asked for a copy of what had been added to the current case reference to ensure those “hate incidents” had been included as well as the incidents in March. She had also noted this had again been logged as ASB and not a hate crime.
The landlord responded the same day – it said she had just been sent a standard letter of case opening points. It was aware she considered this to be a hate crime, which was noted on the system, but it fell within the general ASB policy. It had met with the neighbour and the police were also present. The neighbour had made a lot of counter allegations, with supporting evidence, and it would be assessing the evidence and would write back with the outcome. In respect of the hate element, it was awaiting the outcome of the police investigation and if they acted, it could too.
On 19 April 2021, the landlord confirmed that from the recent footage provided, it was unable to prove the alleged actions were deliberate and walking past the window via a shared access route did not prove intimidation. The alleged drug use had been denied.
On 22 April 2021, the landlord told the resident that when visiting the neighbour with the police, counter allegations were made that the resident’s son was friends with the neighbour’s son and they smoked cannabis together. They had claimed that it was her son, not theirs smoking it in the garden. In addition, the neighbour provided a rap video with the resident’s son in it, which contained highly offensive language, and cannabis in view of the camera. There was no evidence of aggression displayed by the neighbour’s husband when approaching the resident in the footage seen. The neighbours claimed the resident was running her car to deliberately cause them problems. The landlord said it remained concerned about the situation and intended to take legal advice.
The resident wrote a letter of complaint on 4 May 2021 which the landlord identified as being 79 pages long, including the ASB logs she had kept, email correspondence, photographic evidence, and video links. In summary, her concerns were about:
1. The poor investigation and lack of action taken by the landlord in response to her reports of a race hate campaign and intimidation she had been subjected to by the neighbour next-door, the result of which had led to a significantly negative impact on her health.
2. She cited some examples of most concern to her which included:
  1. An incident in January 2021 where the neighbour’s husband approached her unpleasantly about leaving her car running and the neighbour filming it and taunting her from outside.
  2. The neighbour leaving their dividing access gate open, coming into the resident’s garden, talking loudly, staring at her, and generally intimidating the resident to the point she opened her own gate for safety to keep them in public view. This was not ideal with young children and a main road outside.
  3. On 30 March 2021, she had provided a recording of her neighbour using a well-known derogatory word beginning with ‘N’ towards her; her Discrimination and Inclusion Officer also sent a written transcript.
  4. She was appalled at the response from the landlord in which the officer said “based on the recording I am unable to determine what the main issue is other than music appears to be loud and something you should not have to hear”.
  5. The landlord closed the ASB case too quickly without thorough investigation or consultation and diminished the racial harassment to “issues between you and your neighbour” when the police were treating it as a hate crime.
  6. Reports of the neighbour’s cannabis use (directly blowing smoke into her garden over her young children) became an attack on her son’s character as the neighbour counter alleged that he was the cannabis smoker and showed it a video of her son in a music video where cannabis was in the frame.
The landlord acknowledged the complaint 26 May 2021, and requested an extension on the standard time to investigate due to the length and complexity of the case.
The landlord completed its investigation into the complaint and sent its stage 1 complaint response on 1 June 2021. In summary, it said:
1. It opened an ASB case when it received an allegation of verbal abuse by her neighbour. The neighbour was spoken to shortly after and admitted the incident, but raised counter allegations against the resident. These were put to the resident, and she was offered mediation with her neighbour, which she declined. The case was closed after 4+ weeks when no further allegations had been received. It refuted the resident’s claim that it took 22 days to get a response; contact attempts were made by telephone and then two emails were sent chasing for contact.
2. It opened a second ASB case following reports on 29 March 2021. Having listened to a recording of the neighbour playing loud music, it noted that the music “did contain a racially offensive word” but it did not agree it was evidence that it was to purposefully offend or intimidate the resident. The neighbour had been given advice and spoken to about how this could be interpreted; it was satisfied this was a proportionate response.
3. Having listened to the recording of her neighbour approaching her about her vehicle running, whilst not disputing the resident found it unpleasant, there was no evidence of aggression or abusive language in his approach. It had spoken to the neighbour about the incident and was satisfied this was a proportionate response.
4. It had managed her case under its ASB policy and not its hate crime policy because they could not evidence the hate crime, and could include other aspects of the complaint under its ASB policy.
5. The case officer had referenced the issues as “being in-between” the resident and her neighbour, due to the counter allegations made by the other party and to remain impartial, it felt it was appropriate to put the allegations to the resident, which she had denied.
6. In relation to her reports of neighbours banging on the wall, it was appropriate for it to refer her to environmental health (EH), as they have responsibility for evidencing noise nuisance. If evidenced by EH, it could then act.
7. It apologised for a lack of adequate response to reports she made to it in January 2021. It did not feel it impacted the outcome, but it agreed it was unacceptable that she did not get an adequate response, and this would be raised with the teams concerned.
8. Her case had been dealt with in partnership with the police and was the subject of discussions at ASB Case Management meetings. It said the views it had taken on the case were similar to those of the police.
9. It said it did not have the evidence to pursue the incidents raised as breaches of tenancy. It offered mediation with the neighbour through its mediating service.
The resident was not satisfied with this response and requested her complaint be escalated to stage 2.
On 4 June 2021, the resident wrote to the landlord to report further intimidation from the neighbour in the form of lighting fires when she and her family were using the garden; she said that this was the third incident that had taken place. The resident gave the landlord video footage of the incident from a security camera and tablet. The resident maintained the fire was lit against their dividing fence when they were playing in the garden to ensure that smoke travelled in the direction of their garden. When the resident moved her children away from the smoke, she said the neighbours were laughing at them. The resident responded by making a comment out loud about the neighbours doing this “because they liked to burn down black kids”, to which the neighbour responded, “I’d love to burn them, throw them on”. The resident said the neighbour continued to mock her, repeating everything she was saying and then pretending to be her making calls to the police to report the neighbours “burning black people” and imitating the sound of sirens.
On 4 August 2021, the landlord concluded its stage 2 investigation, and sent the resident its response; in summary, it said:
1. The complaint was about the neighbours verbally abusing the resident and her child, playing offensive music, behaving anti-socially and in a potentially criminal manner, and stealing a lock from the gate.
2. Following a review of its records, video footage and a visit to the resident’s home, its investigation had identified that the relationship with the neighbour had broken down in 2018.
3. The case was discussed with the equalities and diversities team, who had previously considered the neighbours’ playing of offensive music. Whilst it agreed it was offensive, it was a popular tune at the time and the playing of it was not evidence of a breach of tenancy on which they could act.
4. The path behind the resident’s property was a right of way for residents at two neighbouring properties who also had gates and, as such, it could not be locked.
5. It considered the incidents to be part of an ongoing neighbour dispute between both parties but accepted it was causing the resident a great deal of stress and it should have intervened quicker; it apologised for this.
6. To assist the resident and provide a resolution, it offered to:
  1. Arrange mediation, and for the resident to continue to make use of the facility called “breathing space”.
  2. Move the resident to another property.
  3. Install a 6ft dividing fence between the resident and her neighbour.
The resident did not want to take up the offer of mediation she felt there would be little benefit, as this was a case of racial hatred, she was unable to change her race or the colour of her skin. She did not want to move as she was not well enough to do so.
The resident secured a new advocate on her behalf who was a prominent member of the housing sector, also known for their campaigning for better handling of racial harassment cases by landlords. He wrote to the landlord on the resident’s behalf on 16 August 2021. He said his group had recently raised concerns in the national press about tenants experiencing racial harassment, and as a result, a number of tenants had contacted them. The resident’s case was one that they were following up on.
This intervention triggered a further investigation by the landlord into the resident’s case, with the aim to resolve it. The landlord’s response to the advocate stated that, on the back of his contact, it had ordered an immediate review of its processes following the resident’s complaint.
On 4 October 2021, the landlord emailed the resident with the outcome of its additional investigation. In summary, the landlord said:
1. It had completed a full review into the handling of the resident’s reports of racial abuse and anti-social behaviour by her neighbour. It had also re-examined its investigation into the stage 1 and 2 complaints.
2. It said initial reports from the resident were passed to the Community Safety and Anti-Fraud (CSAF) team. It acknowledged that the resident had shared lots of relevant information, but the finding at the time was that there was not enough evidence to take further action.
3. However, as a result of the recent review, it now knew that CSAF had missed a vital section of audio that provided evidence that the neighbour used racially discriminatory language towards the resident. Had it been picked up at the time, it would not have made the decision not to act.
4. This was further compounded by the significance of the audio clip being missed a second time in the stage 2 complaint investigation. It determined that this was a clear failure of its complaints process.
5. The stage 2 investigation had acknowledged the impact the situation was having on the resident and appropriately put some options on the table to assist such as the dividing fence and the offer to move.
6. The recent review had also identified that the police had advised the stage 2 investigator that they had no open cases for the resident, which was incorrect. They had since contacted her to apologise.
7. It acknowledged that its handling of the investigation had added to the resident’s distress, for which it apologised. A number of actions had since been agreed to help the resident moving forward:
  1. A new fence around the whole rear garden to increase privacy.
  2. Fencing to the front of the property to increase privacy.
  3. The neighbours would refrain from using the footpath through the resident’s garden as of 29 September 2021. Another neighbour would use the path, but access would be kept to a minimum.
  4. A formal injunction against the “occupants” of the neighbouring property was being applied for, and it committed to updates on this.
  5. It offered the resident a period of respite in another property, or alternatively to provide the family with a week-long stay in a hotel in the UK, for the upcoming half term break.
  6. An offer of £1000 compensation in response to all complaints to reflect its failings and the distress this situation had caused her.
  7. An offer to re-instate contact with its “breathing space” support team.
8. It identified that there were lessons to be learned from the resident’s case, and it was looking at ways to better educate and train staff to provide an improved response to racially motivated ASB.
9. Moving forward, a minimum of 3 staff would review transcripts and watch/listen to audio/video footage.
10. Discussions were taking place with the digital team to procure new software to help listen and transcribe audio clips better.
11. Overall, it acknowledged it needed to do more to support victims of discrimination and committed to doing so.

Post complaint process

On 25 October 2021, the landlord wrote to the resident following attendance at court for an injunction against the neighbour:
1. It advised that it had secured, by way of “an undertaking”, that the neighbour was:
  1. Not to leave the shared rear gate open unless in the event of an emergency until 22 April 2022.
  2. Not to play music to incite racial intimidation or harassment or to cause a nuisance and or annoyance.
  3. Not to use the shared rear access way until 22 April 2022, except in the event of an emergency.
  4. Not to verbally abuse, harass or intimidate the resident or any person living, visiting, or residing at her address.
  5. Not to have any contact with any person living in, visiting, or residing at the resident’s address.
  6. Not to engage in activity that caused a nuisance and/or annoyance to any person within the locality of the resident’s address.
2. The terms regarding the use of the shared rear access and gate ran for a period of 6 months. It understood that the shared access made the resident and her family feel unsafe. It considered every option, but it was not possible to block this access due to it being a legal right of way; this was also why the restrictive arrangement was only temporary.
3. The landlord wanted the resident to be assured that the terms would be reviewed throughout the next 6 months and could be extended. For clarity, all of the remaining terms ran until 22 October 2022, each of which would be reviewed throughout the 12 months.
4. It noted with regard to the fencing height that it had checked with the District Council and was required to install some of the fencing at a lower height than agreed, to ensure it met legal requirements. Due to covenants on the land, it would be necessary for some of the front garden fence to be reduced to 1 metre in height for the first 4 metres from the road towards the house. The remaining section of fencing adjacent to the property, it had been advised, could remain at the height originally agreed, along with the rear fencing.
5. The landlord also re-iterated its advice to the resident that the option to consider moving remained available to her, but noted at this stage that this was not something she wished to explore.
The resident advised this Service that eventually she felt she had no option but to take the offer to move to a different property, which she reluctantly did over a year later.

Assessment and findings

Scope of investigation

The resident advised this Service that she had suffered a mental breakdown as a result of the harassment experienced from her neighbour and the landlord’s failure to act. The Ombudsman does not question her evaluation of the serious impact this had on her health. However, as this Service is an alternative to the courts, it is unable to establish legal liability or whether a landlord’s actions or lack of action had a detrimental impact on a resident’s health. Nor can it calculate or award damages. The Ombudsman is therefore unable to consider the personal injury aspects of the resident’s complaint. These matters are better suited for consideration by a court or via a personal injury claim. The resident may take independent legal advice on this matter should she wish to do so. Nonetheless, the Ombudsman has considered the distress and inconvenience that may have been caused to her.
The resident, as part of her complaint wanted this service to investigate the landlords racial discrimination against her. Determining whether a landlord racially discriminated against a resident is not a matter that the Ombudsman can consider within the remit of the Scheme, a contravention in the Equalities Act would be a matter for a court of law to consider and make a decision on. For this reason the racial discrimination aspect of the residents case has not been considered as part of this investigation.
This Service is aware that the resident was not satisfied with the outcome of the complaint, in part due to ongoing events that occurred with her neighbour, and actions that she said did not take place, following completion of the internal complaints process (ICP) for example the landlord not obtaining an injunction preventing the whole of the household next-door from accessing her garden. The Ombudsman is not able to consider complaints that have not exhausted the landlord’s complaints procedure. These post-ICP events are considered to be separate issues that would constitute a new complaint, and, as such, cannot form part of this investigation. Any mention of events beyond ICP included in this report are provided for context only.

Landlord obligations

The landlord has an ASB policy which commits to taking seriously all allegations of ASB that meets its definition. If it does receive allegations, it will immediately open an ASB case which will be categorised as either A or B. It will respond to:
1. Category A cases within 1 working day of receiving the allegation.
2. Category B cases within 3 working days of receiving the allegation.
The policy commits to carrying out a risk-based assessment and agreeing an action plan with each complainant, which includes how and when it keeps in contact.
In some cases, the landlord is not the organisation with the responsibility or powers to deal with the allegation(s) made. In cases where it has an interest, but another organisation is leading, it may decide not to act until the outcome of their investigation is known. When dealing with allegations of ASB, it commits to consider early on the support needs of complainants, witnesses, and alleged perpetrators.
The landlord also has a Hate Incident Policy in which it defines Hate Incidents as: ‘Any behaviour which is deliberately intended to harm or intimidate a person(s) which is perceived by the complainant(s) or any other persons(s), as being motivated by prejudice or hate.’ It may or may not constitute a criminal offence. In the policy, the landlord recognises the importance of tackling hate incidents, acknowledging their effect, and commits to preventing and detecting these wherever possible. It requires that in all situations, it will immediately open a case and categorise this as Category A, in line with its anti-social behaviour policy, and respond within 1 working day of receiving the allegation.

ASB, racial harassment and abuse

When the resident made several reports of harassment from the neighbour between the 23 August 2020 and 9 September 2020, in relation to, swearing at her 3 year old son, cannabis smoking and verbal abuse over the gate bolt, the landlord opened an ASB case. At this point, there was no actual evidence of racism in the harassment that had taken place, so this was appropriate and in line with its ASB policy. There was however no evidence that a risk assessment had taken place to categorise risk and response times, as set out in the landlord’s policy, albeit the neighbours were approached and given a verbal and written warning.
In response to the resident’s report of the neighbours banging on her wall, it was appropriate for the landlord to ask her to refer any further reports to the local council’s environmental health (EH) team. The landlord’s ASB policy states that it will not always be the lead agency in certain cases; EH teams have the resources and powers to identify, evidence and enforce against statutory noise nuisance.
Having received no further reports of ASB, the landlord contacted the resident on 2 December 2020 to check in on the situation, which was reasonable. The resident did not respond, so the landlord emailed her again on 8 December 2020 for an update and advised that as no further reports had been received, it was looking to close the case in line with its policy. When it had not received a response by the end of the next day, it closed the ASB case and sent notification to the resident, which was reasonable.
The resident eventually contacted the landlord on 12 December 2020. In her email, she confirmed no other incidents had occurred, but mainly because she had been away and not using her garden. She said she still had concerns, but she would contact the landlord after the Christmas break to discuss these. As there had been no further incidents, and the resident’s concerns were not described as urgent, this did not materially change the landlord’s decision to close the case, which was again not unreasonable.
The situation between the resident and the neighbour clearly deteriorated in the weeks during, and after, the Christmas period. This was predominantly over the resident following the advice of a mechanic to leave her car running on the drive, in order to keep the battery charged. The neighbour considered this a nuisance, and assumed this was to deliberately antagonise them. This led to an escalation, resulting in a verbal exchange, with the resident feeling intimidated and both parties recording the actions.
On receipt of the report from the resident on 4 January 2021, the landlord discussed the events with both the resident and the neighbour, and reviewed video footage provided by both parties. Although the resident felt intimidated by the neighbour’s approach, the landlord found no evidence that aggression was used. The landlord was entitled to rely on the opinion of its qualified staff to make that assessment, and as such determined the events of December 2020 to be a neighbour dispute rather than ASB or harassment. As a result, it decided not to open another ASB case, which was reasonable. What it failed to do however, was share this information with the resident, which raised her expectations that further investigation and action would be taken, which was not acceptable.
The landlord went on to adequately address this issue in its stage one response. It accepted that its communication at this time was not up to standard, but felt this did not change the outcome. In response, it apologised and agreed to raise the failing with the appropriate team, which was a reasonable attempt to put right its inadequate actions.
On 29 March 2021, the resident submitted an evidence log of ASB and incidents of racial discrimination towards her from the neighbour. The landlord’s assessment of this was that it was a further case of ASB and not a hate crime. Its justification for this was focused on the rap music only for the racial content, which it deemed to be inappropriate, but as it was a popular soundtrack, did not evidence of racial harassment directed toward her. This was a failing and it later transpired that the recordings contained evidence of direct racial discrimination in the use of derogatory language, and even though the racial equality representative sent in a transcript in support of the recording, the landlord failed to pick this up.
The resident requested that, in light of the harassment, the neighbours were prevented from using the right of access through her garden. The landlord advised that it could not agree to this action prior to investigating the allegation, which was reasonable. It also advised that as it was a public right of way, it was unlikely that it could implement this legally and would have to seek advice which was appropriate. This issue did later form a clause in a court injunction, but as it was a public right of way the court order was strictly limited to 6 months, a timescale outside of the landlord’s control.
The actions the landlord took in response were to open an ASB case, complete a risk assessment and send further warnings to the neighbour about their behaviour. This would have been appropriate and in accordance with its policy for a standard case of ASB, but it met the criteria for a hate crime, and should have been dealt with in accordance with its Hate Crime policy. This would have allowed the resident and her families’ safety to be a priority. The landlord could have opened a case and categorised it as Category A to be responded to within 1 working day, liaised with other agencies, considered options such as temporary accommodation or a more permanent move, and used more robust powers available to deal with the neighbour. Treating it as an ASB case prevented this happening and was a failing on the part of the landlord.
When the resident raised her concerns as a formal complaint, an opportunity arose for the landlord to realise and address this mistake. However, it failed again to pick up the racially motivated comments made to the resident in the recordings. In its response, the landlord said it had reviewed the recording the resident had supplied (but made no mention of the transcript) and it agreed with its original response, that the music contained racially offensive language, but there was no evidence that it was directed at her and her family. This led the landlord to conclude that it was dealing with her case appropriately under its ASB policy and not its Hate Crime policy, which was incorrect and a failing in stage 1 of its complaint handling process.
It offered the resident mediation with the neighbour as a resolution. This was appropriate for ASB, but not for a hate crime situation, and was understandably declined by the resident.
The landlord’s stage two complaint review, said it re-examined the evidence, records, and video footage from the resident’s complaints. For a third time however, it failed to identify the racially motivated language used towards the resident, and whilst it reviewed the case with its Inclusion and Equality team, it still only focused on the decision made about the rap music, which was not appropriate and as a result, meant there were service failings at both stages of its complaint handling process.
The landlord did however acknowledge in its stage two reply that the situation with the neighbour was having a significantly negative impact on the resident. In response, it offered her a number of practical solutions such as the continued engagement with its “Breathing Space” support service, a six-foot-high dividing fence between her and the neighbour in the garden or a move to alternative accommodation, which was reasonable.
After the complaint process, the resident engaged the service of an advocate prominent in the housing sector who campaigned on a better response from landlords on racial discrimination. This intervention instigated an immediate response from the landlord’s Senior Management Team. On the back of the advocate involvement, a thorough review with the intention to resolve was requested.
The findings from the ad hoc review determined that a significant piece of evidence was missed that would materially change the outcome had it been known, and which confirmed this was a hate crime. It also determined that there were significant failings in the landlord’s complaint handling process.
The landlord sincerely apologised and offered the resident:
1. Financial redress of £1000 for its failings and the distress caused to the tenant, as well as temporary respite in another property or a paid holiday, which was a fair and proportionate amount within a range that the Ombudsman would recommend for a serious failing that has had a significant impact.
2. A permanent move to an alternative property which was appropriate, and resolution focused.
3. An action plan for the resident to remain, which included suspending the neighbours’ use of the right of way access through the garden, something the resident had been asking for consistently.
4. To erect 6ft high dividing fencing for privacy around the front and back garden of the resident’s property. This offer later had to be amended so that a section of fencing in the front garden was lowered, to comply with covenants so as not to contravene planning regulations. This was unfortunate but outside of the landlord’s control, and it did offer to provide the resident with her choice of planting to create a natural shrubbery screen to mitigate this, so it was fair and reasonable in this regard.
5. It committed to applying for a formal injunction against the neighbouring occupants, which was appropriate. Any remedy proposed must be followed through to completion within a reasonable time period. A court order for a formal undertaking, to prevent any further harassment of the resident and prohibited use of the shared right of way for 6 months, was in place within four weeks of the response, which was reasonable. Unfortunately, the injunction/undertaking only applied to the neighbour and not her family. There may have been a reason for this outside of the landlord’s control, but if there was, it was not explained to the resident, which was not reasonable. She was caused further distress having been told it would apply to all occupants, when the neighbour’s husband and son who had also been perpetrators of the harassment, were still able to walk through her garden.
Whilst the Ombudsman commends all attempts by landlords to work to resolve disputes with its residents, there is an expectation (which is laid out in the Ombudsman’s Complaint Handling Code) that a thorough review with the intention to resolve would ultimately be the role of the landlord’s two stage complaint handling process. It was not acceptable that the landlord’s process could not achieve this, and this led to the resident being caused further time and trouble to pursue a suitable resolution.
The Ombudsman recommends a 2-stage approach to internal complaint processes (ICP) to ensure a consistent and speedy conclusion to complaints. Effectively adding a third stage was not in accordance with the landlord’s policy and it only went on to provide a delayed outcome, something the Code seeks to avoid, which was not reasonable.
The Ombudsman accepts that the landlord apologised. Its findings and the solutions offered post ICP are considered to meet this Service’s expectations and guidance for appropriate resolution and redress. It also acknowledges that the landlord demonstrated that it had learnt lessons from its failings and committed to staff training and service improvements to prevent this happening again.
However, when looking to determine whether this is ‘reasonable redress’, the Ombudsman must establish what initiated the landlord to reopen the case and whether it would do so consistently, as well as the redress itself. The evidence shows it was only the intervention of a high-profile advocate, that initiated the re-opening of this case. If the resident had not engaged this advocate, the case may have remained closed and the landlord’s original ICP findings would have stood.
This being the reason for the post ICP review did not demonstrate the landlord’s ability to act fairly and consistently in its future handling of complaints. In addition, even though the landlord offered more appropriate redress, it did not negate the fact that the resolutions and redress offered could have been provided sooner, and within the landlord’s internal process; as such, they are not considered sufficient to avoid a finding of maladministration.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman’s Scheme, there was maladministration in the landlord’s handling of the resident’s reports of anti-social behaviour, racial harassment, and abuse.

Reasons

The landlord failed to identify that the resident was the victim of a hate crime and apply the appropriate policies and procedures to deal with the situation. Its two-stage complaint handling process provided the opportunity to review the case, identify and rectify this mistake, but it failed to do so. A further review was instigated, not as part of due process or quality assurance that would demonstrate fairness and consistency, but in response to an impactful third-party intervention. Whilst the resolution and redress subsequently offered was proportionate, the resident had to go to the time and trouble to obtain this. In addition the evidence did not support that the landlord followed through on its commitment to apply for an injunction against all neighbouring occupants perpetrating the harassment.

Orders and recommendations

The landlord should, if it has not already done so, send a letter of apology to the resident.
The Ombudsman orders that the landlord within 4 weeks, if it has not already done so, pays the resident £1000 compensation it offered for the resident’s complaint, its failings, and the distress they caused.
The Ombudsman orders that the landlord pay the resident the sum of £250 compensation for the distress caused to her by it not informing her that it had not secured a court order against all the occupants as previously advised.
The Ombudsman orders that within four weeks the landlord provides this service with details of the changes it made in its commitment to “educate all their teams to provide a better response to reports of racist ASB” and “to do more to support victims of discrimination”.
The Ombudsman orders that within 4 weeks the landlord provides this service with a copy of its 2022 annual self- assessment against the Ombudsman’s complaint handling code. If it has not completed its annual self-assessments, it should complete one within the 4 weeks and provide a copy to this service.
The landlord should reply to this Service with evidence of compliance within four weeks.