Thirteen Housing Group Limited (202224339)

REPORT

COMPLAINT 202224339

Thirteen Housing Group Limited

15 March 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 resident’s complaint is about the landlord’s handling of:
   1. The resident’s reports of anti-social behaviour (ASB).
   2. The associated complaint.

Background

2. The resident holds an assured tenancy with the landlord. He lives in a 2 bedroom property on the first floor of a block of flats. The resident’s tenancy began in September 2017.
3. The evidence provided shows that the resident’s reports of ASB began in November 2020. The resident reported noise nuisance coming from his neighbour’s property which is located above the resident’s flat. Following a significant number of reports and noise recordings via the noise app, the landlord visited the alleged perpetrator, and sent warning letters before a Notice of Seeking Possession (NOSP) was issued in February 2022.
4. While the resident submitted further noise recordings following the NOSP, the landlord informed him that it did not classify the noise as nuisance as it occurred during the day. The resident was advised to make contact with the local authority to install noise equipment to establish whether the noise would meet the threshold for a noise abatement order. The ASB case was closed by the landlord on 30 March 2022 as it received no further reports of ASB.
5. Following an additional 4 noise app recordings between April 2022 and May 2022, the landlord advised the resident to contact the local authority and request for a noise nuisance case to be opened. The ASB reports consisted of “DIY noise” during early hours of the morning.
6. Between 25 May 2022 and 4 July 2022 the resident logged 29 reports of noise nuisance on diary sheets provided by the local authority. The resident noted “loud DIY during the day” and “thumps during the night”.
7. The landlord carried out a visit to the resident’s property on 16 June 2022. A member of the local authority’s environmental health team and a police officer were also present during this visit. The landlord explained that the ASB case against the alleged perpetrator had been previously closed as there were no further incident reports in March 2022. The landlord acknowledged that the resident had reported the alleged perpetrator had made a threat against him, however, as he did not wish for the landlord to contact the alleged perpetrator or for the police to take any action there was limited action that could be taken. The landlord explained that there was not enough evidence to follow through with possession proceedings.
8. The landlord sent a letter to the alleged perpetrator on 7 July 2022 stating that it wanted to arrange a property inspection to ensure any DIY being carried out met the requirements of the tenancy. Both parties were advised by the landlord to stop contacting one another due to allegations and threats made. Following this, the resident was advised the ASB case was closed as the local authority had stated it would not be taking any further action regarding the noise nuisance.
9. The resident continued to report ASB and submit noise recordings via the noise app July 2022 and August 2022. On 20 August 2022 the resident reported that the alleged perpetrator had parked their car in the “centre” of the communal area between washing lines. When the resident went to put his washing out he was “shouted” at by the alleged perpetrator and the resident admittedly shouted back. The resident provided the landlord with photographs to evidence his reports.
10. On 1 September 2022 the resident contacted the landlord about his neighbour’s behaviour. The landlord responded to the resident stating it felt the email sent by the resident was “patronising and abusive” and that the dispute between the resident and his neighbour was of a “petty nature”. The landlord said that it “should not be devoting resources to [the dispute]” as neither party was “interested in resolving the dispute”.
11. The resident continued submitting noise recordings till 28 October 2022. The landlord arranged for mediation to take place. Appointments were scheduled for 17 November 2022 and 30 November 2022. On both occasions mediation did not go ahead and it was recorded by the mediator this was due to the resident refusing to engage.  
12. The resident’s MP made contact with the landlord seeking an update on the ASB case on 6 December 2022. The landlord explained that the alleged perpetrator had not breached the terms of their tenancy and their behaviour was categorised as “simply decorating”. The landlord stated it had discussed recent reports with the alleged perpetrator who said they would be more mindful of noise going forward. The landlord informed the resident on 23 January 2023 that it intended to close the ASB case as there had been no further reports.
13. On 25 March 2023 the resident attempted to escalate to stage 2 of the landlord’s complaints process a previous complaint about ASB dealt with at stage 1 by the landlord on 5 May 2022. The landlord refused to escalate the complaint as it was made outside of the 28 days of the stage 1 response issued.
14. The resident made a new formal complaint to the landlord on 29 March 2023. He made reference to a specific staff members handling of his ASB reports and felt that the evidence he had submitted had been ignored. The resident was unhappy that an ASB case had been opened against him due to a counter allegation made by the alleged perpetrator. The resident stated that the mediator responsible for the arranged mediation sessions had called to cancel the mediation process and it was not him that was responsible for the breakdown in the mediation process as was alleged by the landlord. The resident felt the landlord had failed to implement the issued NOSP and such lack of action had allowed the ASB to persist.
15. The landlord issued a stage 1 response on 10 May 2023. It stated that it felt correct processes had been followed when the previous ASB case was open. The case was closed on 1 February 2023 due to no further reports being made and during this period the NOSP had expired as it had been 12 months since it was issued. Following a review of the mediators notes the landlord noted that the resident refused to engage and continue with mediation. The landlord stated that the resident would need to submit new evidence if it wished for it to take further action.
16. The resident escalated the complaint on 11 May 2023. He reiterated his dissatisfaction about an ASB case being opened against him and stated the landlord’s suggestion that he had pulled out of mediation was “simply not true”. The resident stated the ASB had continued and “hostility” against him had increased and the landlord had failed to resolve the matter to date.
17. Although the stage 2 response was dated 26 May 2023, the resident stated he did not receive this until 12 June 2023. In the response the landlord stated it was satisfied that correct processes had been followed. It noted that it had made attempts to call the resident following recent reports of ASB however the resident had not answered and email updates were provided instead. Although the landlord felt mediation had not helped to resolve the dispute between the parties previously, it stated it was happy to arrange another attempt. The resident was advised to continue to report ASB if it occurred
18. The resident referred his complaint to this service on 20 June 2023. He explained that he felt the landlord had not taken any action to resolve his reports of ASB and that it had ignored the evidence he had submitted.

Assessment and findings

Scope of investigation

19. The resident has stated that the ASB issues have been ongoing since 2020. The Ombudsman’s remit does not extend to investigation of historical issues as a resident is expected to raise issues and escalate complaints with both the landlord and Ombudsman in a timely manner. In order to investigate this complaint fully and fairly this Service will consider events from April 2022, encompassing the landlord’s formal complaints procedure which started on 29 March 2023, and culminated with the landlord’s final response of 26 May 2023.
20. The Ombudsman is also not able to investigate issues that post-date the completion of the landlord’s complaints process, other than to ensure that the landlord has followed through on any agreements it might have made during the course of this process. This investigation will not consider the issues raised by the resident following the completion of the landlord’s formal complaint’s process as the landlord has not had an opportunity to respond to new issues under its complaints process
21. This investigation will not consider how the landlord should deal with any identified service failings in terms of disciplinary proceedings by the individual members of staff involved. This is in accordance with paragraph 42(h) of the Housing Ombudsman Scheme, which states that this Service may not consider complaints which in the Ombudsman’s opinion concern terms of employment or other personnel issues. The Ombudsman, when investigating a complaint about a member of the landlord, will consider the response of the landlord as a whole, and will only comment on the actions of individuals only in so far as they are acting on behalf of the landlord. Therefore, if the actions of an individual member of staff give rise to a failure in service, the Ombudsman’s determination and any associated orders and recommendations would be made against the landlord rather than the individual. In short, we can look at staff conduct as part of the landlord’s overall service, but we cannot order the landlord to take disciplinary action against individual staff members.

The landlord’s handling of reports of ASB

22. It is outside the role of the Ombudsman to establish whether someone has committed ASB, but rather, we will assess the landlord’s handling of the residents’ anti-social behaviour reports. We will consider whether the landlord’s response was fair and reasonable in view of all the circumstances and whether it acted in line with its own internal policies, and best practice. So while the Ombudsman has not heard the noise recordings made by the resident, it will assess the landlord’s response to the noise recordings being submitted to it as part of its overall case handling.
23. The landlord’s ASB policy states that it aims to respond to complaints of ASB quickly and effectively by using a range of methods including prevention, early intervention, support and enforcement. The landlord also aims to take appropriate and proportionate action, including legal action where necessary. It also aims to work effectively with existing partners and develop a shared understanding of responsibilities with other local organisations.
24. The landlord’s approach to tackling ASB consists of a combination of the following:
    1. Customising its approach to case management to suit the needs of the victim and the risk posed to them.
    2. Prevention and early intervention which starts from the moment the landlord is made aware of an incident.
    3. Consideration of safeguarding issues and vulnerabilities.
    4. Support to be provided to the victim and perpetrator where required.
    5. Enforcement action which would occur mainly in the most serious of cases. The landlord would only seek to take legal action which is appropriate, proportionate and effective given each individual case.
    6. Partnership working with other agencies such as the local authority and police to tackle ASB.
25. The landlord’s expected standard of service in ASB cases includes:
    1. Acknowledgement of all incidents of reported ASB within 1 working day.
    2. All residents with an open ASB case should be contacted every 10 working days through either automated or manual contact.
    3. The landlord should always seek the consent of the complainant before closing a case.
26. In accordance with the landlord’s policy, noise nuisance is categorised as low level ASB.
27. Following the closure of the resident’s ASB case on 30 March 2022, the resident made new reports of ASB via the noise app in April and May 2022. The landlord responded by signposting the resident to the local authority’s noise nuisance team. As a registered social housing landlord the landlord has the right to take action against ASB. Given that the landlord had access to noise recordings made via the noise app it could have assessed the noise itself and advised the resident to continue reporting to it to decide whether it would constitute a statutory noise nuisance. The landlord’s policy states it will ‘utilise’ noise monitoring equipment such as the ‘noise APP’ to investigate ASB and this can be used as evidence for enforcement action. Therefore, the landlord should have been aware that it did not need the local authority to install noise recording equipment for it to be permitted to take enforcement action, as it could have relied on the evidence available on the noise app. Additionally, in consideration that a NOSP had been issued, it would have been reasonable for the landlord to assess and confirm to the resident as the complainant in the case whether or not a breach of the terms had occurred by the alleged perpetrator.
28. However, in accordance with the landlord’s policy, part of its approach in handling ASB involved partnership working with other agencies such as the local authority. Given that the landlord did not consider the noise evidence available to constitute a nuisance, it was in part reasonable for the landlord to refer the resident to the local authority to assess on the basis the local authority may have had different methods of obtaining evidence to assess whether the noise met the threshold for enforcement action, such as a noise abatement order. In referring the resident to the local authority the resident was still being given the opportunity to have his case investigated and was not left without support.
29. The landlord’s visit to the resident on 16 June 2022 in collaboration with the local authority and police provides further evidence that the landlord was committed to partnership working in accordance with its policy. This Service encourages a multi-agency approach in relation to handling ASB as it ensures all involved agencies are aware of what actions have been taken and what steps can be taken within their powers to support a resolution.
30. Following the noise incident logs submitted to the local authority, the landlord appropriately made contact with the alleged perpetrator regarding the reports. The landlord acknowledged that “DIY noise” was occurring at inappropriate hours of the day and night. It was reasonable for the landlord to request to arrange a visit to the alleged perpetrators property to investigate the cause of the reported ASB. However, this Service has not been provided with evidence as to the outcome of the meeting, or when or if it occurred, so we are unable to assess the landlord’s handling of this visit.
31. Despite the landlords acknowledgement that the noise had been occurring at inappropriate hours, it proceeded to close the resident’s ASB case on 7 July 2022. This appears to be upon the reliance of the local authority’s decision not to take further action regarding the alleged noise nuisance. In accordance with its policy, the landlord should have sought the resident’s consent before closing the case. There is no evidence to show that the landlord discussed the case closure with the resident before making the decision to close the case. This was a failure by the landlord as it meant the resident was not given an opportunity to have a say in whether he felt it was appropriate to close his case. Furthermore, such a discussion would have given the landlord the opportunity to explain its decision making, accounting for the number of reports of noise made by the resident and that the DIY noise was occurring at inappropriate hours. Evidently, the landlord’s decision to close the resident’s case on several occasions without seeking the resident’s consent only meant that it had to repeatedly open new cases following the resident’s continued reports, thus inconveniencing the resident.
32. The resident reported ASB in relation to the alleged perpetrator’s decision to park his car in the middle of the communal area in August 2022. The resident explained that this inconvenienced him as it obstructed his washing line and the incident led to a verbal altercation. There is no evidence to show the landlord responded to this incident of ASB within 1 working day in accordance with its policy. The landlord should have investigated the resident’s reports and taken into consideration the photographs submitted by the resident to determine whether ASB was occurring. It was unfair to leave the resident without a response or without a further investigation into the matter. If the landlord did not think the reports amounted to ASB, this should have been clearly communicated to the resident in its response to the report. This was a failure by the landlord.
33. The landlord’s use of language to describe the resident’s dispute to be of a “petty nature” and stating that the landlord “should not be devoting its resources to it” in its email of 1 September 2022 was not appropriate. Use of such language was likely to exacerbate the deterioration of the relationship between the resident and the landlord as it insinuated the resident’s experience of ASB was not serious enough to warrant action from the landlord. This was likely to result in the resident feeling as though the landlord had been dismissive of their reports. The onus is on the landlord to maintain professionalism in its response to the resident. The failure to do so was a service failure by the landlord.  
34. As the noise reports continued in October 2022, the landlord arranged for mediation to take place. This was an appropriate response to the resident’s reports, however, it is unclear why mediation was not suggested or arranged sooner. As mediation is considered a ‘prevention’ and ‘early’ intervention method under the landlord’s policy, it would have been reasonable for the landlord to have arranged this as a measure at the beginning of the complaint timeline. However, the Ombudsman acknowledges that there is nothing to suggest the outcome of mediation would have been different had it taken place sooner.
35. Furthermore, following the ‘noise APP’ recordings submitted in October 2022, the landlord should have once again assessed whether the evidence constituted a breach of the alleged perpetrators tenancy. If the landlord had reviewed the recordings and decided a breach had not occurred, it should have communicated this and the reasons for this to the resident. In issuing a NOSP the landlord raised the resident’s expectations that enforcement action may be carried out if further noise reports were made. In order to manage the resident’s expectations, the landlord should have been clear about what would and would not constitute a breach of tenancy with regards to noise reports. The Ombudsman would expect the landlord to have considered the resident as part of its communications and management strategy after a NOSP had been served upon the alleged perpetrator and there is no evidence it did so to an effective degree. 
36. As a part of his formal complaint the resident was unhappy that the landlord had opened an ASB case against him at the request of the alleged perpetrator. The landlord had a responsibility under its policy to log and respond to all incident reports. It was reasonable however, for the landlord to reassure the resident that the case would be closed if no evidence was received, which is what subsequently happened.
37. The evidence provided to this service indicated that no further reports of noise nuisance were made before February 2022 when the NOSP expired. Therefore the landlord could not have taken further action regarding possession as it did not believe there had been a breach of the conditions it had set out. In accordance with its policy, the landlord would only consider legal action which is ‘appropriate’, ‘proportionate’ and ‘effective’. Given it did not have evidence of a breach of the terms of the NOSP, pursuing legal action was not appropriate in the circumstances.  
38. Overall, there was maladministration by the landlord in its handling of the resident’s reports of ASB. The landlord failed to act in accordance with its policy in response to the resident’s reports of ASB on a few occasions and did not adequately communicate with the resident regarding potential enforcement action. The landlord’s use of language further exacerbated matters. The landlord is ordered to pay the resident £300 compensation in recognition of the failures identified and the resulting inconvenience caused to the resident. It is recommended for the landlord to ensure it maintains ongoing communication with the resident in accordance with its policy as it appears that his reports of ASB remain ongoing.

Complaint handling

39. The landlord’s complaint process consists of 2 stages. Stage 1 complaints are to be responded to within 5 working days, and if the investigation takes longer then the landlord would aim to respond within a further 5 working days. The policy states that a resident has 28 days from the stage 1 outcome letter to escalate their complaint to stage 2. Stage 2 complaints are to be responded to within 10 working days, and if the investigation takes longer, the policy allows for a further 10 working days.
40. Following the resident’s escalation request on 25 March 2023, it was appropriate for the landlord to refuse escalation due to the length of time that had passed. This was in accordance with its complaints policy. Additionally, the stage 1 response issued to the resident on 5 May 2022, clearly stipulated that escalation requests should have been made within 28 days.
41. The resident was also dissatisfied that he had not received the stage 2 response which the landlord stated it had posted to him on 26 May 2022. Given that the resident sent his initial complaint to the landlord via post, it was not unreasonable for the landlord to issue a response via the same method. However, once the resident chased the matter and notified the landlord he was still awaiting a response, the landlord provided a digital copy of the response as soon as it became aware. The resident received the response on 12 June 2023, which was still approximately within the timeframes set out in the landlord’s policy.
42. Overall, as the landlord acted within its policy and took action when the resident made it aware he had not received a response, there was no maladministration by the landlord in its handling of the resident’s complaint.

Determination

43. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in its handling of the resident’s reports of ASB.
44. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration by the landlord in its handling of the resident’s complaint. 

Orders

45. The landlord shall take the following action within four weeks of the date of this report and provide the Ombudsman with evidence of compliance with these orders:
    1. The landlord is ordered to apologise in writing to the resident for the failings identified in this report.
    2. The landlord is ordered to pay the resident £300 in recognition of the failures identified in this report regarding its handling of the resident’s ASB report.
    3. The landlord is ordered to carry out staff training for those in its ASB teams regarding the importance of using only professional and respectful language when communicating with residents.

Recommendations

46. It is recommended for the landlord to ensure its response to any new reports of ASB made by the resident are strictly dealt with in accordance with its policy and that the resident is appropriately updated throughout the complaint lifecycle.