Southern Housing (202329780)

REPORT

COMPLAINT 202329780

Southern Housing Group Limited

31 July 2024

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:
   1. Reports of antisocial behaviour (ASB).
   2. The associated complaint.

Background

2. The resident has lived in the property as a leaseholder since January 2023. The property is a 1-bedroom ground floor flat.
3. On 27 September 2023, the resident told the landlord that he had received threatening messages from his neighbour and because of this had moved out of his flat. He asked the landlord whether the neighbour had breached his tenancy and for support to resolve the problem. He also wanted to know what his rights were on the sale of his flat if the neighbour continued to live there.
4. On 5 October 2023, the landlord acknowledged the resident’s report of ASB as a complaint. The landlord’s ASB team contacted the resident on 13 October 2023 and carried out a risk assessment.
5. In its complaint response on 20 October 2023, the landlord said the neighbour’s tenancy agreement prohibited ASB, and it was not able to move the neighbour but was reviewing his housing options. It said it would open an ASB case and asked the resident to provide further information so it could investigate the allegations. On the sale of the property, it said its resales team could support the resident, but it was unable to comment on the implications of the reported ASB, and he would need to seek independent advice.
6. The resident escalated his complaint on 23 October 2023. He said the response did not resolve his concerns about a breach of tenancy and the effect the ASB might have on a future sale. He said the landlord was in breach of a covenant as the neighbour was preventing him from being able to live peacefully in his property. He also said he had already provided the additional information requested, and he did not want the landlord to discuss the ASB with his neighbour, as it risked antagonising him. He wanted to know why the leasehold had been sold, whether the landlord had considered the neighbour’s behaviour when selling the leasehold, and details of any previous complaints about the neighbour.
7. On 24 November 2023, the resident contacted the Ombudsman about his complaint. He said he wanted the landlord to rehome his neighbour to more appropriate accommodation. He also wanted compensation for costs incurred during the period he was unable to live in his flat and for the landlord to buy back the lease of his property.
8. In its final response on 22 December 2023, the landlord said about the alleged breach of the covenant that it was not responsible for the neighbour’s behaviour, but it was taking action to resolve the ASB. It said it could not disclose any information about the neighbour without his permission. The landlord said it had made a financial decision to sell the property and repeated that it was unable to comment on the implications of the reported ASB on the sale of the property. On compensation it said it was unable to consider this as it had not agreed the temporary move. It apologised that it had asked the resident to provide information already submitted and said there had been some instances when communication had not been effective. It offered £145 compensation, which comprised £100 for inconvenience, time, and trouble, £15 for requesting information already provided, and £30 for delays and communication failures.
9. The resident remained dissatisfied and escalated his complaint to the Ombudsman. He was unhappy with the time taken to respond to his complaint. He also said the landlord should not have sold the flat knowing the issues the neighbour could cause, and the landlord’s actions had impaired the value of his property. He wanted the landlord to uphold the lease agreement and ensure ‘quiet enjoyment’ of his home, compensate him for allowing the ASB to occur and for impairing the value of his property. He also wanted the landlord to either repurchase the lease or give compensation to account for loss in value, and compensate him for costs incurred during the time he moved out of his property due to the ASB.
10. The resident moved back to his flat in January 2024. On 21 February 2024, the resident told the landlord there had been no further instances of ASB. The landlord closed the ASB case in April 2024.

Assessment and findings

Scope of the investigation

11. The resident complained that the landlord was in breach of a covenant as it had failed to ensure the quiet enjoyment of his property. He also complained that the landlord should not have sold the lease and had not compensated him for loss to the value of his property. Having carefully considered the evidence, the Ombudsman will not investigate these parts of the complaint. This is because under paragraph 42.f of the Scheme, the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure.
12. Whilst the Ombudsman can consider how the landlord responded to reports of ASB, we cannot make determinations on whether the landlord is in breach of a covenant, or about reasons for the sale of a property and any loss to its value. The resident may wish to seek independent legal advice or refer the matter to the First Tier Property Tribunal.

The landlord’s handling of reports of antisocial behaviour

13. The Ombudsman acknowledges that ASB cases can be the most difficult for a landlord to resolve. In addition, it is not the Ombudsman’s role to decide whether ASB took place. It is the Ombudsman’s role to determine whether the landlord followed its policy and acted reasonably in the circumstances. For example, when a report was received, did the landlord assess the report, did it offer support to the resident, and did it work with other agencies?
14. The landlord has a responsibility to deal with reports of ASB in line with legislation and its policy. The landlord’s policy defines ASB as conduct that has caused, or is likely to cause, harassment, alarm or distress to any person.
15. The landlord’s ASB policy says it will strike a balance between protecting the quiet enjoyment of the community, and helping individuals sustain their tenancies. It sets out how the landlord will deal with reports of ASB. It says when it receives a report it will consider the harm the ASB causes, will consider the risks, and will work with other agencies to protect the resident’s safety. It will tell the resident who will handle their case and agree an action plan with the resident. It also says it will provide support, investigate the ASB and take action to stop further incidents. It will keep the resident informed of the actions it takes.
16. The landlord’s policy says it will use a range of preventative measures, early intervention, and legal action to tackle ASB. The actions it takes will be proportionate to the seriousness, impact, and frequency of the reported ASB, the level of risk that it poses and the evidence available to support the case.
17. The homeowners’ policy says when a homeowner complains about the landlord’s tenant and there is sufficient evidence, it will act against the tenant in line with its ASB policy. It says where evidence is unlikely to result in successful legal action, it will signpost the homeowner to other options, such as mediation and independent legal advice.
18. On 27 September 2023, the resident contacted the landlord about what he said were threatening messages that had been sent to him on 22 September 2023 by his neighbour. He told the landlord that in the days before the messages were sent, there had been incidents involving the police and mental health services, who were trying to gain access to the neighbour. He said the neighbour had sent threatening messages to him because he had let the police and mental health services through the communal door at the flats. He said because of the threats, he and his partner had left the property as they were concerned for their safety. He said he had reported the messages to the police and wanted support and advice from the landlord.
19. Records show the landlord tried to contact the resident on 3 and 4 October 2023 to discuss his “complaint”. On 4 October 2023, the resident replied to an email from the landlord and said he was not making a complaint about the landlord but wanted its support. On 5 October 2023, the landlord sent a complaint acknowledgement.
20. On 12 October 2023, the police provided the landlord with a written briefing setting out its involvement with the resident and neighbour following a report about threatening messages.
21. The landlord’s ASB team contacted the resident on 13 October 2023 and carried out a risk assessment in line with its ASB policy. The resident told the landlord the same day that he understood it had to go through a formal process, but he felt the questions in the risk assessment did not capture the significance or complexity of the issues. He also said he did not believe the officer completing the risk assessment had thoroughly read his original email.
22. On 16 October 2023, the resident contacted the landlord about a call he was expecting that day. He said no one had contacted him. On 18 October 2023, the resident said he was frustrated that the landlord told him it had no knowledge of police involvement.
23. The landlord opened an ASB case on 20 October 2023 and told the resident a case officer would carry out agreed actions. These included contacting mental health services, liaising with the police, appropriate early intervention, considering a referral to tenancy sustainment, and providing the resident with fortnightly updates. It said the resident should report any further incidents to the police and case officer. It also asked the resident to provide details of any contacts with the police so it could request a disclosure.
24. The Ombudsman has found that these were reasonable actions for the landlord to take and were in line with its ASB policy. It was appropriate for the landlord to carry out a risk assessment. The Ombudsman acknowledges the resident’s comments about the questions in the risk assessment not capturing the significance or complexity of the issues he was raising. However, it is the Ombudsman’s view that the landlord needs to follow a standard procedure to ensure it treats all reports of ASB in a fair and consistent way. At the same time, the Ombudsman would expect the landlord to have a process that is sufficiently flexible to ensure the resident’s concerns are captured. This appears to have been the case in this instance, as the landlord opened an ASB case after completing the risk assessment and set out what it would do to resolve the issues being raised. Because of this, the Ombudsman has found there was no failure in the way the landlord carried out the risk assessment.
25. However, the Ombudsman has found that when the resident reported ASB to the landlord on 27 September 2023, the landlord incorrectly dealt with the report as a complaint. This meant the landlord did not initially follow its ASB procedure. The reported ASB should have been assessed by the landlord when the report was received. Instead, a risk assessment did not take place until 13 October 2023, which was 11 working days after the report was received, and an ASB case was not opened until 20 October 2023. The Ombudsman has found the landlord failed to follow its ASB procedure when the report was made, and this was a failure by the landlord, which led to a delay in an ASB case being opened. In its final response, the landlord offered £100 for inconvenience caused. The Ombudsman has found that this was reasonable redress in the circumstances, as the inconvenience caused was minor and the delay in opening the ASB case was relatively short.
26. However, because of the failing in this case, the Ombudsman recommends the landlord reviews how reports of ASB are initially processed to ensure they are acted on in a timely manner.
27. In its complaint response on 20 October 2023, the landlord said it was not able to move the neighbour but was working with agencies to review his housing options. The Ombudsman has found that this was reasonable in the circumstances. This is because the landlord’s ASB policy says it will use preventative measures, early intervention, and legal action to tackle ASB. However, it says the actions it takes will be proportionate. Although the events reported by the resident were very concerning and distressing to him, to the extent that he left the property, the incident appears to have been isolated. Because of this, it was reasonable for the landlord to try intervention rather than legal approaches in the first instance. In addition, evicting the neighbour for breach of tenancy would require significant evidence, as the decision would need to be made by a court. As well as evidence of ASB, the court would also want to see what action the landlord had taken to sustain the neighbour’s tenancy. Although the Ombudsman cannot predict the outcome of court action, on the balance of probabilities it is unlikely a court would grant possession in the circumstances of this case. Because of this, the Ombudsman has found the landlord acted reasonably in relation to this part of the complaint.
28. When the resident escalated his complaint on 23 October 2023, he said he had already provided information about his contact with the police, and the landlord did not communicate effectively. The Ombudsman has not seen evidence of the resident providing details of police reports. However, the landlord provided the Ombudsman with a record dated 12 October 2023, which shows a communication from the police, setting out details of the incident reported by the resident. This was before the landlord sent out its complaint response on 20 October 2023 asking for details of police reports.
29. In its final response on 22 December 2023, the landlord apologised for requesting information it had already received, and acknowledged there had been some instances where communication had not been as effective as the resident had the right to expect. It said in future it would hold regular meetings and share the outcome with the resident every 2 weeks. It offered compensation of £45 for communication failures and requesting information it had already received. The Ombudsman has found that this was reasonable in the circumstances as there was only minor inconvenience caused and the communication failure did not affect the overall management of the case.
30. The resident also told the landlord that he did not want it to discuss the allegations with his neighbour, as he was concerned about antagonising the neighbour. The Ombudsman understands these concerns. However, to resolve an ASB case, the landlord will need to discuss allegations with both parties. The Ombudsman has noted that the landlord did discuss the matter with the neighbour and issued a warning letter and behaviour contract. It also offered mediation, which was accepted by both parties. Records also show the landlord contacted the police and mental health services. In February 2024, the resident said there had been no further incidents of ASB and the landlord closed the case in April 2024. The Ombudsman has found that the way the landlord communicated and dealt with the neighbour, and engaged with other agencies, was proportionate and appears to have resolved matters. Because of this, there was no service failure in the way the landlord attempted to resolve the ASB.
31. In its final response, the landlord said it was unable to consider the request for compensation for the period the resident was away from the property as it did not agree the temporary move. The Ombudsman has found that this was reasonable in the circumstances. This is because the landlord had not agreed a temporary move and could not be held responsible for costs incurred.
32. In its final response the landlord said it could not provide information to the resident about whether there had been previous complaints about the neighbour without his permission. Although it is not within the Ombudsman’s jurisdiction to make determinations on matters relating to data protection, the Ombudsman agrees that as a general principle, consent is required from third parties before information can be shared. If the resident wishes to take this matter further, he can raise this with the Information Commissioner’s Office.
33. Overall, the Ombudsman has found there were initial failures in the landlord’s communication, which it apologised for and offered reasonable compensation. However, following this, records show the landlord carried out a risk assessment, opened an ASB case and assigned a case officer. It also contacted the neighbour, issued a warning and acceptable behaviour contract, and offered mediation. Records show it contacted other agencies. All of this took place during the 3 months after the incident was reported. As it was a single incident it would not have been proportionate for the landlord to take legal action against the neighbour. Because of this, the Ombudsman has found the landlord acted reasonably.
34. As part of his complaint, the resident said the property should not have been sold because of the ASB and asked the landlord to buy back the lease or compensate him for any loss in value because of the ASB. In response, the landlord said it was a commercial decision to sell the lease to the previous lease holder and it had not been negligent in the sale of the property. Because of this it said it would not compensate the resident. It also said it could not comment on loss of value and the resident should seek independent advice, but its sales team could support the resident with a sale.
35. The Ombudsman has found that the landlord responded appropriately to this part of the resident’s complaint, as it set out the reasons for the sale of the property, and that it did not find fault in its process. It also acted appropriately by advising the resident to seek independent advice, if he wished, and offered support on any sale of the property.

The landlord’s handling of the associated complaint

36. The landlord’s complaint policy says a service request is a request from a resident requiring action to be taken to put something right. It says when a resident first lets it know about a concern, as a starting point it will ask what they would like it to do to put things right.
37. The complaints policy also sets out the timescales for dealing with complaints. It says when a complaint is first made, the landlord aims to give a full response within 10 working days of acknowledging the complaint. When a complaint is escalated, it will contact the resident with its decision within 20 working days of acknowledging the escalation. If it needs more than 20 working days, it will explain why, and agree a response date. This is in line with the Ombudsman’s Complaint Handling Code.
38. Records show the resident first contacted the landlord about ASB on 27 September 2023. He said he wanted support and advice from the landlord. The landlord tried to contact the resident on 3 and 4 October 2023 to discuss his “complaint”. However, on 4 October 2023, the resident told the landlord he was not making a complaint about the landlord but wanted its support.
39. Despite this, the landlord sent a complaint acknowledgement on 5 October 2023. Because of this, the Ombudsman has found there was an initial service failure by the landlord as it dealt with a service request as a complaint. This led to a delay in dealing with the ASB case until 20 October 2023, when the landlord sent its first complaint response.
40. Although the resident made a service request on 27 September 2023, the landlord did not send an acknowledgement until 5 October 2023 and did not respond until 20 September 2023. This was 23 working days after the resident first reported ASB, and 13 working days longer than the timescale set out in the complaints policy. The Ombudsman has found that this was a further service failure by the landlord.
41. The resident escalated his complaint on 23 October 2023. However, the landlord did not acknowledge the escalation request until 13 November 2023 and did not send its final response until 22 December 2023. This was 2 months after the request to escalate the complaint was made. Records show the resident chased a response during this period, which was at a time when he was still living away from his property due to his concerns about ASB. The Ombudsman has found that the landlord failed to follow its complaint policy when responding to the escalated complaint, which caused inconvenience for the resident. This was another service failure.
42. The Ombudsman has found that there were 3 service failures in complaint handling, which caused inconvenience for the resident. When combined, these failures amounted to maladministration. In line with the Ombudsman’s remedies guidance, maladministration is identified in cases where the Ombudsman has found a significant failure. Because of this, the landlord is ordered to compensate the resident with an additional £100 for the failure to follow its complaints policy and the Complaint Handling Code.

Determination

43. In accordance with paragraph 53.b of the Housing Ombudsman Scheme, there was reasonable redress by the landlord in respect of its handling of reports of ASB.
44. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its handling of reports of the associated complaint.

Orders and recommendations

Orders

45. The landlord is ordered to pay the resident a total of £100 in compensation within 4 weeks of the date of this report. Compensation should be paid directly to the resident, and not offset against any arrears.

Recommendations

46. The Ombudsman recommends the landlord reoffers the £145 compensation offered at stage 2 of the complaints process.
47. The Ombudsman recommends the landlord reviews how reports of ASB are initially processed to ensure they are acted on in a timely manner.