Thames Valley Housing Association Limited (202113301)

REPORT

COMPLAINT 202113301

Thames Valley Housing Association Limited

29 April 2022

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:
1. reports of noise nuisance and anti–social behaviour (‘ASB.’)
2. request for reasonable adjustments in communication.
3. complaint through its internal complaints process.
4. subject access requests.
5. concerns about staff conduct.
6. counter allegations against him.
7. lack of consideration of supporting evidence.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman 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) and (m) of the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction.

d. subject access requests.

Paragraph 39(m) of the Scheme advises that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, “fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.” The representative advises the landlord has not responded to requests for information that includes information about counter allegations made against the resident. The Information Commissioner’s Office is the regulator for complaints about subject access requests and personal data related to the resident

e. concerns about staff conduct.

f. counter allegations against him.

g. lack of consideration of supporting evidence.

Paragraph 39(e) of the Scheme advises that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, “were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising.”
The information provided advises that the above issues relate to historic events prior to the complaint, including 2016 and 2019. The Ombudsman will not investigate issues which were not brought to the landlord in a reasonably timely manner, because the longer the time goes on, the more the landlord and this Service’s ability to conduct an effective investigation is impacted.
The remaining complaints are within the Ombudsman’s jurisdiction and are considered below.

Background and summary of events

Background

The resident is a tenant of the landlord, a housing association. The property is a flat in a block. The resident is vulnerable and has a representative.
The landlord’s approach to ASB aims to prevent incidents occurring; investigate in partnership with specialist agencies; use available tools such as mediation, warnings, and acceptable behaviour commitments; and take appropriate action to stop ASB where there is sufficient evidence. The landlord’s definition of ASB includes damage to property, extreme noise that is persistent, and persistent pet nuisance.
The tenancy agreement sets out obligations in respect to the garden and pets. It advises that the tenant must keep his garden tidy and free from rubbish. It advises that permission must be obtained from the landlord for pets such as dogs; animals must be kept under control and prevented from disturbing neighbours; and consent will only be given if the landlord is satisfied a pet is not a nuisance. The landlord may withdraw consent at any time, particularly if a pet becomes a nuisance.
The landlord operates a two stage complaints procedure, and aims to respond at stage one within 10 working days and at stage two within 20 working days. The landlord does not consider complaints where the cause occurred more than six months before the complaint was made.

Summary of events

In July 2020, the landlord received contact from the resident’s representative about:
1. damage to the resident’s car. It was noted that the resident suspected this was caused by a neighbour (‘neighbour A’) but had no evidence to support this.
2. neighbour A’s dog being let out unsupervised in the communal garden. It was noted that previous reports had been made about the issue and it was queried if the landlord had these on file
3. another neighbour (‘neighbour B’) constantly causing noise such as banging sounds which followed him around the house. It was noted the resident suspected that neighbour B sub-let the property.
The landlord said that it was not able to take action for criminal damage to the resident’s possessions, and that this was a police matter, and the resident was unable to provide evidence that the neighbour scratched the car in response to queries. The landlord noted it had discussed the dog issue internally, confirmed it had pictures provided in April 2019 on record, and asked if there were recent pictures so the issue could be looked into further. The landlord noted it was investigating issues in relation to neighbour B; had spoken to the resident some weeks ago; and was unable to go into details of the investigation. It noted that it had offered to install a noise machine, but this had been declined as the resident would only trust the local authority to install a noise machine. The landlord noted that the local authority’s noise team were unable to provide a machine at the landlord’s request, so it had advised the resident to contact the local authority to request the machine. The landlord suggested that the representative help obtain a noise machine to support the noise nuisance reports being made.
In August 2020, the representative supplied recent photos to the landlord to show the dog in the communal garden. The representative queried if there were any updates about neighbour B as the noise disturbance was still ongoing. The representative said that the resident’s views on the noise machine were still the same, and queried if the landlord ever sourced noise machines from the local authority, as that could be one way of working around the issue.
The same month, the landlord advised that it had visited and found the dog in the communal garden when it attended, due to works being carried out in the property. The landlord said it spoke to neighbour A and explained that the dog must not be in the shared communal garden. The landlord noted that there were no dog signs in place and it had spoken to another neighbour, who had said that while the dog went into the communal garden, it did not cause any problems. The landlord noted that the issue would be referred internally to discuss a way forward. The landlord advised that an investigation in relation to neighbour B was in hand but it was unable to provide further details in order not to jeopardise it. The landlord said that it had no obligation to request the local authority’s noise machines, and said the resident should speak to the local authority about this.
In September 2020, the representative said that the resident had provided photos of another neighbour’s dog that was regularly in the garden, and said that as there were signs saying ‘no dogs’ this was a clear tenancy breach. The representative noted that the resident had reported some noise disturbance from evening to morning, occasionally shaking the flat. The representative advised that the resident had agreed to have a noise machine installed in the flat. The representative’s account advises that the same month, the resident made a noise report which police attended and found noise not to be above normal. The landlord subsequently referred the representative’s correspondence internally and asked for the resident’s agreement for the noise machine to be noted.
In October 2020, the landlord emailed the representative and said neighbour B had denied making any noise, as they had been out of the country for several weeks. The same month, the representative’s account advises that the resident’s car bonnet was dented, which the resident reported to the police as he believed this was caused by neighbour A.
In November 2020, the representative responded concerning neighbour B’s denial of noise being made. The representative highlighted that the police had attended (saying noise was not above normal); queried the resident being away if the police confirmed someone was present; and noted that the resident’s concern that the neighbour sublet the property could explain matters. The same month, the landlord referred the subletting concern internally for action to be taken when Covid-19 restrictions were lifted, and also requested a disclosure of information from the police in relation to the resident’s noise reports.
On 27 January 2021, the resident’s representative made a complaint which was stated to concern the ongoing ASB case and the landlord’s lack of action in relation to it. In an accompanying letter, the representative raised dissatisfaction in respect to the landlord opening a newer ASB case and not taking into account older ASB reports. The representative detailed a chronology of contacts about various matters between July and October 2020. In particular, the representative advised that:
1. The resident’s car bonnet had been dented and the resident suspected this was neighbour A. The representative noted that the resident had previously mentioned threats being made (the representative was unclear who by) which suggested the car would be damaged.
2. There had been a lack of action and response about the dog, which made the resident feel unsafe, and a ‘no dogs’ sign should mean this was a tenancy breach. There had been no reply to a query in August 2020 about whether pictures of the dog in the garden would be added to the resident’s ASB report or if a new report needed to be made.
3. There had been reports made about noise disturbance, and the landlord had been made aware in September 2020 that the resident had consented to a noise machine.
4. The landlord had not communicated with the resident as required by his needs and as he had requested. The representative said that prior to a call the landlord made to the resident in October 2020, he had requested correspondence by email and letter.
On 11 March 2021, the landlord asked the representative if noise from a flat above was still an issue, and if the dog was still causing a nuisance and how. The same day the representative emailed more photos of the dog in the garden, then on 17 March 2021 the representative advised that the resident reported ongoing, regular and lengthy noise disturbances that often went on throughout the night and impacted sleep. The representative noted that it had been brought to the landlord’s attention that the resident had agreed for a noise machine to be installed. The landlord responded that it was not currently entering homes due to the Covid-19 pandemic, but confirmed the noise machine request had been noted, the resident was third in a queue, and a noise machine would be set up once it was deemed safe. The landlord enclosed diary sheets that it asked to be used, and said that the resident should download its smartphone noise app.
On 19 March 2021, the landlord issued its stage one response to the complaint.
1. It enclosed a summary of actions to investigate the complaint from 28 January 2021 when the complaint was made.
2. It acknowledged the resident’s dissatisfaction with how ASB had been handled and said ASB had been investigated in line with policy. It said the resident’s concerns about the dog coming into the garden had been raised with a relevant housing officer who would address the issue internally. It noted that the housing officer said that the dog did not have access to the resident’s garden, only communal grounds, and that it intended to remind the neighbours of the pet policy.
3. It acknowledged and apologised for the delay in the response and any frustration and inconvenience caused, and awarded £20 compensation.
On 7 April 2021, the resident’s representative advised that the resident was not satisfied with the response and did not feel it had been properly investigated. They requested for the complaint to be acknowledged; to be informed of a new response time if the complaint could not be responded to in accordance with policy; and for the resident to be informed of his right to escalate the complaint to this Service if he remained dissatisfied.
The landlord subsequently asked the representative to clarify the complaint on 14 May 2021 as the escalation was vague. The representative has supplied a letter which it is unclear was provided to the landlord, however it is similar to the original complaint letter but adds that:
1. There had been no response to a request for confirmation of information the landlord had provided about the resident’s bidding status and ASB case.
2. The landlord was informed in September 2020 that the resident agreed for a noise machine to be installed, and it took six months for the resident to be informed he was third in line.
3. The landlord had suggested the resident download a noise app which was not accessible for him.
4. Threats which suggested the resident’s car would be damaged had not been investigated and addressed in the landlord’s response.
5. No action had been taken about the dogs despite there being a ‘no dogs’ sign in the gardens.
6. The resident had provided evidence over thirteen years however the landlord had regularly discriminated against him, no action had been taken against the neighbours and no proof of outcomes had been provided. A full response was requested along with confirmation of the resident’s transfer priority in light of medical evidence that had been previously supplied.
On 21 May 2021, the landlord issued its final response:
1. It apologised for the delay in response.
2. It advised that the resident’s ASB report about the dog had been discussed with staff. It advised that neighbour B had received permission to own a dog and was permitted to exercise the dog in the shared garden. It advised that there was no available evidence at present that the dog caused a nuisance, and it noted that another resident who used the garden had confirmed the dog caused no problem for them.
3. It noted that the resident had requested that any contact should go through a support worker and so the support work had been informed to contact staff with any concerns. It noted that fortnightly email updates were being sent to the support worker concerning all the resident’s housing issues, including the open ASB case. It provided contact details for relevant staff if the resident wished to discuss matters further.
4. It upheld the previous response and advised that the compensation awarded at stage one was an appropriate amount.
The resident’s representative contacted this Service in September 2021 about consistent noise disturbances from neighbour B’s property, which causes lack of sleep, and neighbour A having the dog despite a sign saying ‘no dogs allowed.’
In March 2022, the landlord informed this Service that concerns about staff conduct and adjustments in communication had not been investigated in error, and said it could log a new stage one complaint.

Assessment and findings

The landlord’s handling of the resident’s reports of noise nuisance and antisocial behaviour

ASB case management is a crucial aspect of a landlord’s service delivery. Effective use of an ASB procedure enables the landlord to identify appropriate steps to resolve potential areas of conflict, improve landlord/tenant relationships and improve the experience of tenants residing in their homes. ASB cases are also often the most challenging for a landlord as, in practice, options available to a landlord or chosen by a landlord to resolve a case may not include a resident’s preferred outcome, and it can become difficult to manage expectations.
This Service understands the resident’s situation, recognises that the concerns he has reported have affected and caused distress to him, and understands he feels the landlord failed to properly address issues which impacted living in the property, his health and sleep. In cases relating to ASB, it is not the Ombudsman’s role to determine whether ASB occurred or who is responsible. However, the Ombudsman can assess how a landlord has dealt with the issues and reports it has received in the timeframe of a complaint, and assess whether the landlord has followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case – which this investigation goes on to do.
Following reports from the resident, it was necessary for the landlord to respond to his concerns and to take action in accordance with its ASB policies, such as assess reports; contact the resident; discuss the case with neighbours and partners such as police where applicable; and deal with reports in a fair and proportionate manner, considering its obligation as landlord to treat allegations from all of its customers in a consistent and evidence-led way.
In regards to the resident’s car, the landlord’s enquiries established the resident had no evidence to confirm his suspicions that a neighbour had caused the damage, and said that damage to personal possessions was a criminal matter. The landlord later contacted the police for disclosures about any reports. This investigation notes the complaint in January 2021 mentioned threats which had been made to damage the car, however there is limited evidence these threats were reported in the timeframe of the complaint; there was an acknowledged lack of clarity over who these were made by; and other specifics were unclear such as when the threats were made. This investigation would have liked to have seen the landlord address this aspect, however there is no evidence this significantly impacted matters, and overall the landlord’s response to the report appears reasonable. The evidence demonstrates that the landlord considered the report, made some relevant enquiries and set out a reasonable position based on evidence available. The police are best placed to investigate damage and threats, and the landlord would be ultimately reliant on any outcomes to their investigation to consider if further action was applicable under its ASB policy. There is no evidence to substantiate the suspicions, and there is no evidence the police has raised concerns about threats or criminal damage, which show the landlord’s actions have been proportionate in the matter.
In regards to the dog in the communal area, the tenancy agreement says that permission must be obtained from the landlord for dogs; permission will be granted if the landlord is satisfied a pet is not a nuisance; and permission can be withdrawn if a pet becomes a nuisance. Therefore, while there may be a ‘no dogs’ sign, the dog being in the communal area does not appear to be out of line with policy. The landlord has ultimate discretion to decide if residents have permission for a dog and as freeholder, also has ultimate discretion to decide if a dog is permitted in a communal area.
The evidence shows that the landlord’s decisions in respect to the dog were made based on the resident’s reports; inspection of the dog in the communal area; discussion with an unrelated occupant at the block; and consideration of the number of reports about the dog. The landlord clearly made the decision after taking steps to satisfy itself that the dog was not a nuisance. The landlord therefore made the decision to permit the dog in the communal area in a reasonable way and in line with what this Service would expect to see, such as consideration of multiple factors and not the resident’s reports alone. The landlord’s policy allows it to review its decision to permit the dog should the resident or other neighbours supply any relevant information in future. This investigation does note the reported sign in the communal area and the decision to allow the dog to access the communal area has the potential to lead to confusion, and a perception that some residents are being treated differently, and therefore a recommendation is made in relation to this.
In regards to noise, the landlord noted that the resident had declined its offer of a noise machine; encouraged the representative to assist with getting a noise machine installed; and provided explanation and advice in respect to getting a noise machine installed by the local authority. The landlord established that the resident’s neighbour was away during some alleged noise; referred a subletting concern for action to be taken when Covid-19 restrictions lifted; and took steps to obtain disclosure from the police about noise reports. The landlord later arranged for the resident’s agreement for a noise machine to be noted; confirmed the noise machine would be installed when the landlord was entering properties again; advised the resident’s position in the queue for the machine; supplied diary sheets; and advised that the resident could also install a noise app.
This investigation notes there was a five month delay between the resident’s agreement in September 2020 to install the noise machine and the landlord’s communication in March 2021 that confirmed his place in a queue. This delay was not customer focused, does not fully demonstrate that the noise machine request was being progressed at that time, and may have led to some uncertainty for the resident. In the Ombudsman’s opinion, this did not cause significant detriment considering all the circumstances, but a recommendation has been made in respect to this. This investigation recognises the impact Covid-19 had on landlords’ resources and ability to enter properties to install noise machines, and the five month period will have been affected by lockdown; the resident’s place in the queue was reasonably near to the front when informed of it; and there is also some mitigation in the fact that the resident had the option to have a noise machine installed earlier, which would likely have resulted in his noise concerns being assessed earlier.
This investigation notes that dissatisfaction was raised after the complaint was made that the suggested noise app was inaccessible, although it is unclear if this is due to technical issues or the resident’s vulnerability. The landlord’s supply of diary sheets and confirmation the noise machine would be installed demonstrate availability of alternative options, but a recommendation has also been made in respect to this.
This investigation sees no significant issues with the way the landlord handled the reports of noise nuisance. The resident said the noise he experienced was ongoing, but the number of noise reports to the landlord in the timeframe of the complaint are very limited. The police also found noise to not be above normal when they attended for one report, so while this investigation notes the reported impact on the resident, there was limited evidence that the noise was extreme persistent noise that would meet the landlord’s definition of ASB. The landlord offered the option to install a noise machine earlier which was refused for reasons this investigation has seen no evidence to substantiate, and provided advice about asking the local authority to install a noise machine. In order for a landlord to take action against a tenant for acts of ASB, a landlord has to be sure that it would be a proportionate and justified response to the allegations and the evidence available. The landlord’s ability to take action to resolve any noise issues was clearly limited without sufficient evidence of the nature, frequency and level of noise, and this Service has seen no evidence that the landlord or the police considered that the information available warranted further action than was taken or offered.
Overall therefore, in the Ombudsman’s opinion the landlord’s response to the resident’s reports in the timeframe of the complaint was reasonable, considering all the circumstances of the case. This is because it adequately investigated the issues in accordance with its ASB policy, sought to obtain evidence and liaise with other agencies, and took reasonable action based on the evidence available.

The landlord’s handling of the resident’s request for reasonable adjustments in communication.

This investigation notes that the complaint concerns a call the resident received from the landlord in September 2020, despite having stated a preference for written communication.
This investigation understands the concerns raised and it is important for a landlord to make appropriate adjustments for vulnerable residents. However, the evidence provided does not show this has been a frequent occurrence, or that the landlord has explicitly refused to accommodate communication preferences. This investigation notes that much of the communication on matters has been via email, and that the landlord’s final response detailed how it was recently communicating in writing in accordance with a stated preference from the resident, which has not been disputed. There is therefore limited evidence to demonstrate a significant failing in regard to this aspect.
This Service has made a recommendation for the landlord to liaise with the resident to confirm his current communication preference; ensure this is clearly noted on its system; and ensure it accommodates this where possible.

The landlord’s handling of the resident’s complaint through its internal complaints process

The Ombudsman sees a formal complaints procedure as an opportunity for a landlord to carry out an objective assessment of service that has been provided in relation to issues which a resident raises; set out a comprehensive position; and to identify any areas for service improvement where this is applicable.
The landlord acknowledged, apologised and compensated for complaint response delays, which was appropriate as it took almost two months to respond at stage one and over a month to respond at stage two. However, the resident’s complaint in January 2021 raised a number of historic issues, in addition to the dog and noise issues, which the landlord’s responses did not address. While it is reasonable to not to fully investigate these, the landlord should have acknowledged that the issues were raised and provided any appropriate explanation, such as that events in 2019 were outside the scope of the complaints procedure.
The landlord’s responses primarily only addressed the dog issue and did not set out its position on any noise reports in the timeframe of the complaint and on the noise machine. There is also concern that the landlord did not refer back to the original complaint, when investigating at stage two, to identify issues such as noise reports that had not been addressed. In addition, while the landlord addressed the resident’s communication preference in the stage two response, it did not acknowledge that this was not addressed in the stage one response and set out any lessons learned. These show a failure to meaningfully engage with the original complaint at both stages of the procedure.
While the landlord’s handling of the substantive issues appear to have been generally reasonable, it is not appropriate that it did not set out a position on historic issues raised in the complaint and failed to address issues such as noise issues altogether. In the Ombudsman’s opinion this has not caused any significant impact in respect to the issues themselves, however this will have led to the resident feeling complaints were being ignored and that he was being treated unfairly, which will have undermined the landlord and tenant relationship.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in its handling of the resident’s reports of noise nuisance and anti–social behaviour.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in its handling of the resident’s request for reasonable adjustments in communication.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in its handling of the resident’s complaint through its internal complaints process.

Reasons

The landlord’s position on reports of criminal damage was reasonable based on the evidence available; decisions about the dog in the communal area were made in a reasonable way; and response to noise issues was reasonable based on the limited reports and evidence that the noise was extreme persistent noise.
There is limited evidence to show that the landlord refused to accommodate communication preferences, and aside from one event complained about, much of the communication appeared to be through the resident’s preferred means.
In its complaint responses, the landlord did not address a number of issues complained about, including noise issues and historic issues which it should have clearly set out its position on.

Orders and recommendations

Orders

The landlord to pay the resident £150 compensation for its handling of the complaint. This is in addition to the £20 originally offered, which the landlord should take steps to pay if not already.
The landlord to review its complaint handling in order to identify any appropriate steps to ensure that positions are provided on all substantive issues in its complaint responses.
The landlord should provide evidence of compliance with the above within four weeks of this report.

Recommendations

The landlord to ensure residents are communicated with in an informative and timely way in response to noise machine requests.
The landlord to liaise with the resident:
1. to progress installation of a noise machine if this has not been installed already, and inform him of the outcome.
2. to review if there are any feasible solutions in respect to his concern the noise app is inaccessible.
3. to ensure his current communication preference is clearly noted on its system and is accommodated where possible.
The landlord to review the reported ‘no dogs’ sign at the resident’s block, and whether this is appropriate in light of its decision to allow the dog in the communal area.