Orbit Housing Association
15 April 2021
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 is about:
(a) The landlord’s decision to serve a notice of seeking possession.
(b) The landlord’s handling of the resident’s counter-allegations of anti-social behaviour about his neighbour.
(c) Complaint handling.
- What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (the Scheme). When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
- After carefully considering all the evidence, in accordance with paragraph 39(e) of the Scheme, the following aspect of the complaint is outside the Ombudsman’s jurisdiction: the landlord’s handling of the resident’s counter‑allegations of anti-social behaviour about his neighbour.
- Paragraph 39(a) of the Scheme says the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion:
(e) were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be six months of the matter arising.
- While the resident and his father had put it to the landlord that they had “sided with the neighbour” in the meeting of 1 October 2019, there is no evidence that the resident had made a formal complaint about this matter. Accordingly, the resident is now out of time to bring such a complaint to the landlord and the matter is outside the Ombudsman’s jurisdiction under paragraph 39(e) of the Scheme.
- The remaining complaints about the landlord’s decision to serve a notice of seeking possession and complaint handling are within the Ombudsman’s jurisdiction and are considered below.
Background and summary of events
- The resident has a five-year assured shorthold tenancy with the landlord which started in 2017. The property is a one-bedroom house. The landlord had no vulnerabilities recorded for the resident.
- The tenancy agreement also says the landlord will not tolerate anti-social behaviour (ASB) which is defined as any behaviour which causes or is likely to cause a nuisance or annoyance to others. It includes (by way of examples) but is not limited to noise such as loud music and shouting which can be heard outside the property; violence – such as hitting someone; and threats of violence such as verbal abuse or aggressive behaviour.
- The tenancy agreement says that it may seek possession and lists various grounds for this including that the tenant has had a conviction for a serious offence. The tenancy agreement also says that, if the resident or any other person living in or visiting the property, is convicted of any arrestable offence committed in the property or in the local area, it may take legal action to evict the resident. It says that the landlord will first serve on the resident the appropriate Notice of Seeking Possession as required by law.
- The landlord has a two-stage complaints procedure. The landlord aims to issue responses at both stages within ten working days. The landlord accepts complaints from anyone who represents its customers such as MPs or councillors provided permission has been given.
Summary of events
- On 1 August 2017 the resident reported an incident to the landlord whereby his neighbour (the neighbour) had blocked his car parking space and, when approached about this, had told the resident’s father to “go and jump in a river”. The landlord responded saying it would refer the matter to its housing team.
- On 22 May 2018 the resident spoke to the landlord after reports had been made about him “kicking a football into the wall late at night”. He said he did not own a football and that it was important the landlord was aware that “enabling the anti‑social behaviour of my neighbour could put me in a potentially life‑threatening situation”. The landlord acknowledged this and referred the matter to its housing team.
- On 1 March 2019 there was an incident when the resident threatened the neighbour with a knife. On 7 March 2019 the resident told the landlord that he had been sectioned under the Mental Health Act and was currently in a mental health facility.
- On 5 August 2019, the landlord wrote to the resident saying that, following his court appearance on 26 July 2019, it understood he had pleaded guilty to, and had been convicted of “the use of threatening/abusive/insulting words or behaviour to cause harassment, alarm and distress’. It said this conviction was in relation to allegations it had received on 1 March 2019 when the resident was verbally abusive towards the neighbour and had threatened him with a knife; and on 30 March 2019 when he was verbally abusive towards the neighbour and made threats.
- The landlord said that the resident’s behaviour and subsequent conviction were a breach of his tenancy agreement specifically ASB, violence and threats of violence (paragraph 9). It added that the tenancy agreement said that if he, or any other person living in the property, was convicted of any arrestable offence committed in the property or in the local area, it may take legal action to evict them. The landlord said it was looking to take further enforcement action against him in line with the tenancy agreement (paragraph 10) and invited him to a meeting to discuss further on 27 August 2019.
- A meeting due to take place on 2 September 2019 did not take place; the resident’s father subsequently explained to the landlord that the resident had been unable to attend due to anxiety.
- A meeting between the resident and the landlord took place on 1 October 2019. The resident’s father and support worker were also in attendance. The landlord said that the resident had been found guilty of an offence and had therefore breached his tenancy agreement; the resident said he felt the landlord had discriminated against him. The resident’s father said there had been no further incidents between his son and the neighbour. He added that the landlord had not acted with a duty of care towards the resident who was now suicidal. The landlord said it would make a safeguarding referral.
- On 21 January 2020 the landlord notified the resident that it intended to apply to the court for an order requiring him to give up possession of the property. It added, however, that it had decided not to enforce the notice at that time in order to give him the opportunity to stay in the property. It said the Notice of Seeking Possession would be in place for 12 months and if it received any further evidence of ASB, a tenancy breach or criminal behaviour from him within that 12–month period, it would look to enforce the Notice and apply to the court for possession of the property.
- The landlord also said that it had received a new report of ASB against him – that he was kicking a football against the walls in the property home and had also been banging on the walls in retaliation to its contractors completing repairs at the neighbour’s property. The landlord asked him to stop this behaviour as it would be considered ASB and therefore a tenancy breach. It added its likely response would be to enforce the enclosed notice.
- On 21 January 2020 the resident told the landlord that he had approached his MP. On the following day the MP’s office told the landlord that they understood the resident had been subjected to ASB and threats from the neighbour but, despite reporting these incidents, the landlord had not taken them seriously and that had culminated in his mental health deteriorating for which he was hospitalised. They said the resident had told them that there had been a single incident when he had confronted the neighbour and he had been charged with a public order offence; as a result, he was being threatened with a possession order, if there were any further problems in the next 12 months. The MP’s office asked the landlord to investigate this matter under its formal complaints procedure.
- On 24 January 2020 the landlord issued a stage one response to the MP under its formal complaints procedure. It said the resident had pleaded guilty to threatening behaviour and being verbally abusive towards the neighbour in March 2019. The landlord explained that, although the resident believed that that was unfair, he was convicted of a Public Order Offence in relation to the neighbour. It said that in the circumstances, it was proportionate that it took tenancy enforcement action in the form of a Notice of Seeking Possession enforceable for the next twelve months. It added that its decision had been made with the utmost care and in line with its legal obligations.
- On 30 January 2020, following contact from the resident, the landlord issued a final response to the MP under its formal complaints procedure. It said it had reviewed matters and did not uphold the complaint and it considered its decision to issue the Notice of Seeking Possession was correct. It signposted the resident to the Ombudsman.
- When the resident approached the Ombudsman, he said he wanted to know why the landlord had given preferential treatment to the neighbour. He said he was seeking an apology and appropriate redress for the alarm, distress and damage to his health and that of his family which was caused by the landlord’s negligence and harassment.
Assessment and findings
The decision to serve a notice of seeking possession
- The tenancy agreement is a contract between the landlord and the tenant that clarifies and sets out the expectations of both parties during the time a property is occupied. It also sets out the consequences of what action the landlord may take when the tenancy agreement is breached.
- In this case the tenancy agreement is clear that, when a resident is convicted of an arrestable offence committed in the property or in the local area, it may take legal action to evict the resident. The landlord therefore had discretion to decide whether or not to take action to evict the resident. The landlord decided to apply for a Notice of Seeking Possession but not to enforce it unless the resident broke the terms of the tenancy agreement within the following 12 months (paragraph 21).
- In making that decision the landlord acted appropriately by meeting with the resident, his father and support worker (paragraph 18). The landlord’s decision to apply for a Notice of Seeking Possession, but not enforce it, was reasonable given that there had been a single incident where a threat of violence had been made, that there had been no further incidents with the neighbour (paragraph 18) and also too into account the resident’s mental health problems (paragraph 14).
- The landlord responded appropriately to the issues raised in the complaint from the MP and the review request from the resident within the timescales set out in its complaint procedures (paragraph 11). This Service has identified no service failure by the landlord in its handling of the complaint.
- There is evidence of the resident making reports of ASB to the landlord about the neighbour in 2017 and 2018 (paragraphs 12 and 13); however, there is no evidence that he made a formal complaint about the action taken by the landlord at that time. Had the resident believed that that the landlord was ignoring or not taking appropriate action in response to his reports, it would have been open to him to have made a formal complaint at the time.
- In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its:
(a) Decision to serve a Notice of Seeking Possession.
(b) Complaint handling.
- The landlord’s decision to serve a Notice of Seeking Possession but not enforce it, if there was no other tenancy breach within 12 months, was reasonable.
- The landlord responded to the complaint fully and within the timescales set out in its complaint procedure.
- It is recommended that the landlord investigate any counter-allegations of ASB made by the resident against the neighbour in line with its ASB policies and procedures.