Clarion Housing Association Limited (202006605)

REPORT

COMPLAINT 202006605

Clarion Housing Association Limited

31 May 2021

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 response to the resident’s reports of ASB.

Background and summary of events

The resident has had an assured shorthold tenancy with the landlord since 28 May 2018. The property is a ground floor apartment. The neighbour’s property is on the third floor.
This report considers the reports of ASB made specifically by the resident and the landlord’s responses to these as part of its ASB and complaint processes, while also considering the interaction it had with other parties such as the neighbour who is accused of perpetuating the ASB, the police and other residents.
On 14 July 2020 the resident contacted the landlord to report that her neighbour had been making racist comments towards her and making loud “banging” noises on the stairs.
On 16 July 2020 the landlord called the resident to discuss the allegations. The resident reported that the neighbour had been banging on her front door and making racially abusive comments every time they went downstairs. She stated that the neighbour had a history of making false allegations to the police about her. The landlord advised her that noise nuisance should be reported to the local council.
On the same day, 16 July 2020, the landlord wrote to the resident to note the agreed plan for the parties to take moving forward:
1. The resident would fill in diary sheets provided to her by the landlord and return them.
2. She would report the incidents of 15 and 16 July 2020 to the police.
3. She would not “take matters into her own hands” by confronting the neighbour but would instead report issues to the relevant agencies.
4. The landlord would interview the neighbour and update the resident on the outcome.
5. It would work in partnership with the local council, the police and the resident in order to resolve the matter, contacting the latter once a month for updates.
On 20 July 2020 the landlord met with the neighbour at their property to serve them with a Community Protection Notice Warning. The landlord followed this up with a letter to the neighbour to confirm the details of the CPNW, to remind them of their responsibilities, and to note that a failure to adhere to the warning would result in the CPN being served.
On 28 July 2020 the resident contacted the landlord to report that the neighbour had approached her on the local high street and racially abused her.
On 29 July 2020 the police emailed the landlord to advise that they had spoken to the neighbour advising them to follow the requirements of the CPN. It also advised that it had knocked on the resident’s door to discuss the matter but that she had not answered.
On 30 July 2020 the landlord called the resident in response to the report of the 28 July 2020 incident. The resident also reported during this call that the neighbour had been blocking the communal driveway with her wheelie bin which was preventing the resident’s carers from parking. The landlord asked if there was a witness to the alleged racial abuse and the resident confirmed there was not. The landlord noted that because the incident didn’t occur on or near the property but instead on the local high street, the resident should report this to police. It noted however that it would write to everyone in the block to remind them to keep the communal driveway clear. It also asked that the resident complete the diary sheets and return them.
On 31 July 2020 the landlord wrote to each of the residents at the block to remind them to keep the communal driveway clear and not block it with wheelie bins.
On 24 August 2020 the resident rang the landlord to report that the neighbour was breaching the instruction regarding the bins, noting that she had recordings and evidence to confirm this.
On 1 September 2020 the resident contacted the landlord to report that the previous day, 30 August 2020, at 8:30am the neighbour had been banging on the floor and walls. The resident stated that when she had asked the neighbour to stop, they threw rubbish at her and racially abused her. The police were called and attended the property, and the neighbour made a counter-allegation that the resident had pushed them. The resident also reported that she had been woken again that day, 1 September 2020, by loud banging and stamping from the neighbour.
On the same day, 1 September 2020, the resident emailed the landlord with photographs of the rubbish she stated the neighbour threw at her. The landlord’s records noted that the digital data of the photographs indicated them to have been taken on 3 August 2020, and it stated that it was unclear why this wasn’t reported to the landlord at the time.
On 5 September 2020 the resident contacted the landlord to state that she had no more diary sheets and that the neighbour had again been banging on the stairs that morning.
On 14 September 2020 the landlord contacted the local authority and police for updates. The parties discussed that there were allegations and counter-allegations in the case and a proposal was made for a multi-agency meeting to discuss the case. On 15 September 2020 the landlord called the resident who was unavailable.
On 22 September 2020 the resident spoke to the landlord on the telephone which advised her that it was working closely with the police and local council. It noted that a meeting had been arranged for 24 September 2020, but it was arranging for this to be rescheduled as a particular staff member was going to be unavailable for it.
On 24 September 2020 the resident emailed the landlord noting that the neighbour had been making noise on the stairs at 8:30am. She noted that this was having a detrimental impact on her and that she had no more diary sheets as it was expensive to print them. On 25 September 2020 the resident wrote another email to the landlord reporting the same noise occurring again at a similar time that morning.
On the same day, 25 September 2020, the landlord emailed the resident and attached diary sheets that could be filled in electronically. However the resident requested that she be supplied with paper copies instead, and the landlord agreed to arrange for these to be posted to her. It advised the resident that the multi-agency meeting had been arranged for 28 September 2020. It also spoke to another neighbour on the same day about the allegations of noise over the previous days. This neighbour reported having heard no noise.
On 28 September 2020 a multi-agency meeting was held and attended by staff members and police. The landlord’s notes of the meeting set out the following:
1. The neighbour was known to police and other services for calling emergency services without reason.
2. With regards to the resident, it was noted that there were underlying issues because the resident had also made many unfounded reports of ASB. The most recent had been made to the police on 30 August 2020 when she said that the neighbour had thrown rubbish at her. It was noted that there were no witnesses to this and that pictures of the rubbish were “not convincing.” The parties in the meeting noted that the report was closed down by police due to the lack of witnesses, and the resident was made aware of the police decision.
3. There was an open ASB case against the resident in which she was accused of hitting her shoulder against the neighbour when the latter was outside disposing of rubbish.
4. It was agreed that checks would be carried out of both parties and their properties and that their behaviour would be monitored on the basis that there had been multiple unsubstantiated reports of ASB against each other.
On 30 September 2020 the resident wrote to the landlord to raise a formal complaint. She set out the following:
1. She had experienced years of racial abuse, harassment and torment from her neighbour.
2. She had carried out all reporting tasks requested of her, including reporting the instances of ASB, filling-in diary sheets, attending meetings and speaking to police.
3. She stated that she had had no safeguarding from the landlord, and considered that her life had been endangered by the landlord’s failure to properly deal with the reports and take further action.
On 1 October 2020 the resident spoke to the landlord on the telephone who confirmed staff would attend the following day to check on soundproofing and to take on any other complaints. It noted that the neighbour had been warned about her conduct in the summer but that nothing the resident had reported since that time had been proven to have taken place. On this basis it stated that it was unable to take further action at the time, although its investigation was continuing. On the same day the resident emailed diary sheets to the landlord which related to incidents that had occurred in July 2020.
On 2 October 2020 the landlord attended the resident’s property and discussed the outcome of the meeting on 28 September 2020. On 5 October 2020 the landlord contacted the police and local authority to report on the discussion had with the resident at her property.
On 14 October 2020 the landlord accepted and raised the formal complaint.
On 15 October 2020 the landlord wrote to the resident with an interim response in which it set out the following:
1. It had investigated the reports of ASB in conjunction with the police and council. Following the issuing of a CPNW to the neighbour and a warning about the consequences of future ASB, the parties continued to investigate the matter jointly and held meetings to discuss potential options. The landlord’s safer neighbourhood team had visited the block and completed targeted patrols.
2. There had been no independent corroboration for any incidents reported following the service of the CPNW, and as a result it stated that it was unable to take legal action against the neighbour. It noted that it would consider said action if it received corroborative information in the future.
3. However it noted that this did not mean that ASB had not happened at some point. Nevertheless it stated that the resident’s behaviour during the period of investigation had been unacceptable, referencing the resident’s use of abusive and offensive language.
On 27 October 2020 the resident called the landlord requesting all copies of diary sheets she had previously submitted as she stated she was dissatisfied with the way the landlord had investigated the complaint up until that point. On 29 October 2020 the landlord emailed the resident noting that it had undertaken taken various steps to investigate the complaint and would provide a formal response to her request shortly.
On 6 November 2020 a new staff member of the landlord assigned to the ASB case rang and left a voicemail for the resident to discuss a recent incident in which the resident reported that her door had been bashed.
On 9 November 2020 the landlord provided its stage one complaint response to the resident. It apologised for the delay in providing a response to the complaint and set out the following points in response to the complaint:
1. Having investigated the reports, it noted that there was an ongoing ASB case between the resident and the neighbour. It stated that while she had made reports of racial abuse directed at her, there were also reports of an altercation taking place and counter allegations made against the resident over a wheelie bin being moved and obstructing a driveway. While the resident had provided an explanation for this, it complicated the situation as the resident was also accused of failing to adhere to her tenancy obligations.
2. Communication over the previous year had been made repeatedly with the perpetrator, warning them verbally and in writing of the actions that would be taken against them by the landlord. A Community Protection Notice warning (CPN) was issued during a meeting that was held between the neighbour, landlord and local Council. Due to GDPR, it was restricted in terms of what information could be disclosed to the resident, but it had taken all reports seriously.
3. Regarding the counter-allegations made against the resident, staff had reviewed CCTV footage demonstrating that the resident had acted in a provocative manner in moving the neighbour’s bins and blocking the driveway with her wheelie bin. Whilst the footage was also purported by the neighbour to show her assaulting the neighbour, it was not able to draw a conclusion from that evidence alone and therefore could neither prove nor disprove that allegation against her. The landlord had spoken to the resident about this position in October 2020, and noted that it was aware of a further allegation from the resident that the neighbour had damaged her front door, which it was investigating.
4. With regards to the possibility of moving the neighbour from their property, the landlord noted it was only able to do this if it obtained a court order or if a resident chose to transfer properties of their own accord. It noted that at that time it had no intention of serving a notice of seeking possession and would only apply for a possession order as a last resort.
5. It had been unable to find any service failure in the way the ASB was investigated nor with the communication that was made to the resident and neighbour along with the restrictions put in place. It advised the diary sheets requested by the resident would be sent to her by 13 November 2020. It noted that the situation would continue to be monitored closely and the resident was advised, as she had been previously, to contact the police if further racial abuse occurred.
On 10 November 2020 the landlord rang and left a voicemail for the resident again to discuss the reported bashing of her door.
On 25 November 2020, the resident reported to the Ombudsman that two days prior on 23 November 2020 the neighbour had broken down her door and was racially abusive to her daughter. She reported that the landlord was passing on information to the MP that was not correct, and the police had been called twice.
On 26 November 2020 the resident spoke to the landlord and advised that she had not received his previous messages. She reported that on 24 November 2020 her daughter was alleged assaulted in the stairwell of the block by the neighbour who she reported had approached her daughter, racially abused her and slapped her across the face. This had been reported to the police and she stated that they had arrested the neighbour. It was noted that the police were investigating the report.
On 1 December 2020 the resident emailed the landlord to raise concerns about the handling of the case. She then called the landlord to advise that the neighbour had been charged with assault and that she was attending the police station the next day. The resident then expressed her dissatisfaction with what she considered to be the lack of action on the case. Due to the resident’s conduct during the call, the landlord requested that the resident only email it in future. The landlord contacted the local authority to discuss the case including safeguarding concerns raised regarding both the resident and her daughter.
On 2 December 2020 the landlord discussed the case with the local authority. The following day, 3 December 2020, the landlord contacted the neighbour as well as the police to discuss the report.
On 4 December 2020 the police contacted the landlord to advise that they were taking no further action with regards to the assault case. The landlord wrote to the resident the same day noting that the complaint had been investigated and that an action plan had been agreed earlier that week, part of which required the resident to update it with any further developments. It noted that the police were not taking further action against the neighbour, and that this was contrary to what the resident had reported to the landlord and written in a Trust Pilot review. As a result it sated it would not be taking further action other than to discuss the situation with the neighbour. It noted it would advise the neighbour to avoid contact with the resident, and advised her similarly.
On 10 December 2020 the landlord contacted the neighbour who provided it with footage from her body-worn CCTV that she wears when leaving the house. The landlord reviewed the footage which showed that the neighbour did enter the building at the time the resident noted, but that she was walking normally within the property rather than stamping as the resident had reported.
On 18 December 2020 the landlord wrote to the resident’s MP. It set out that it had been liaising with the local authority and the police regarding the case and had carefully considered the information provided from both. It had provided clear advice to the resident regarding what it could do in the circumstances. As it had no control or influence over a police investigation, it had encouraged the resident to address the matter further with the police. It noted that it was reasonable for it to be guided by the police’s approach on criminal matters, as it had in the case when action had been taken against the neighbour, it issued a formal tenancy warning against them.
As of 21 December 2020 the Ombudsman’s internal notes recorded that the resident wished for the complaint to be escalated, which was being refused by the landlord at the time. On 22 December 2020 the landlord wrote to the resident acknowledging the resident’s request for a review of the complaint, noting it would contact her to discuss the next steps. On 31 December 2020 the landlord wrote to the resident noting it was investigating the complaint and was aiming to provide a response within ten working days.
On 26 January 2021 the landlord provided its stage two complaint response to the resident. In this is set out the chronology of events that had occurred in the twelve months prior to the complaint response on the basis that it considered this to be a reasonable time frame. Along with the chronology, it set out the following in response to the complaint:
1. The police had investigated the complaint made by the resident that the neighbour had racially abused and assaulted the resident’s daughter but had not taken action against the neighbour. Regarding the report the resident had made in December 2020 of the neighbour banging on the stairs, the landlord had reviewed CCTV of the incident which did not show the events the resident described. It had also reviewed CCTV evidence which did not show that the neighbour was at fault in relation to an incident relating to the placement of wheelie bins.
2. The chronology showed that the landlord had worked in close collaboration with the local authority and the police, taking action where it has been able to do so. It had arranged for a CPNW to be served which had successfully impacted on the number of substantiated ASB reports.
3. It noted that in order to take legal action against the neighbour it needed to be able to demonstrate to the courts that this was reasonable and proportionate, and that there needed to be sufficient evidence of the incidents for this to occur. Its position was that it did not have enough corroborating evidence of the incidents to enable it to take further action. While it acknowledged the resident would be disappointed with this result, it stated that the chronology should demonstrate the amount of time it had spent investigating the concerns and its commitment to resolving the case.
4. It noted that just because there was no corroborating evidence, it did not mean that the ASB did not occur, but because of the high burden of proof it was unable to take legal action at the time of the final complaint response.
5. It noted that the resident had been offensive and abusive towards staff on multiple occasions both in phone calls and in emails, and that it was considering taking further action in relation to this.
6. It had raised a Subject Access Request to respond to the resident’s request for information and was to respond shortly.

Policies and Procedures

The landlord’s ASB policy sets out that the definition of ASB covers ASB, harassment and hate crime. The policy establishes that the landlord will:
1. Be flexible in dealing with reports, working with internal and external partners to manage the issues.
2. Expect residents to report criminal behaviour to the police who will take action where they have sufficient evidence to do so. It will use the evidence they provide together with evidence it may obtain to take enforcement action where appropriate.
3. Not raise expectations that it can take action where it cannot do so or where primary responsibility and powers lie elsewhere. It will not carry out a full investigation into every individual report of ASB. The thresholds for investigation of categories 2 (noise) and 3 (other ASB) are:
  1. Three separate incidents reported in the last 7 days by members of the same household.
  2. Five separate incidents reported in the last 28 days by members of the same household.
  3. Two separate incidents reported in the past 28 days by members of different households.
The policy divides ASB reports into three separate categories:
1. Crime: In such circumstances the landlord will work with police on a collaborative basis, take action to enforce tenancy conditions and refer victims to support agencies while police investigate and bring charges against the perpetrator. It will not take the lead on resolving such incidents, but in some serious cases if it is appropriate to do so, it will explore its options for taking its own legal action such as an ex parte injunction.
2. Noise: Cases will be investigated within five working days when the threshold is met. It will initially encourage residents to try and resolve these disputes between themselves and will work with the local council’s environmental health team.
3. Other forms of ASB: These will be investigated within five working days when its threshold is met.
Category 2 and 3 reports will be recorded to establish the frequency, severity and duration of the problem. Once it is clear that the problem is persistent and the thresholds are met it will start its investigation within five working days.

Assessment and findings

The Ombudsman relies on the evidence provided by the parties to establish what was communicated to a landlord in terms of both the reporting of ASB and the complaint, before then considering whether the steps taken by the landlord to address and resolve the issue were appropriate. The landlord has reported undertaking various steps in an attempt to substantiate the resident’s claims of noise nuisance, criminal and other ASB so that it can take appropriate action in response. The evidence indicates that it largely followed its policy appropriately by doing so and it kept the resident updated over the course of the ASB investigations and complaint.
The landlord had demonstrated that it undertook a thorough investigation into the reports of ASB made by the resident. It set out the reasonable position in its final complaint response as well as consistently through its earlier communications that it requires sufficient evidence of ASB to be provided before it can undertake enforcement action against the neighbour. The evidence provided to the Ombudsman indicates that the landlord responded to the resident’s reports of ASB by gathering the details of the reports from her via telephone, email and in person. These responses were generally timely, taking place within a couple of days which was in line with the landlord’s obligations to the resident under its ASB policy which requires responses to be made within five days. It provided her with incident diary sheets to record future incidents and conveyed to her the importance of having consistent, documented records of the incidents as they occurred so as to allow it to have evidence on which to base potential enforcement action.
The landlord put in place an action plan on 16 July 2020 based on an approach agreed by both parties as the appropriate way to deal with the situation. The decision to draft this action plan demonstrated an engagement with the resident to allow her input as well as an adherence to various requirements and principles of the landlord’s ASB policy as it:
1. Sought to gather evidence to substantiate the allegations via diary sheets as filled out by the resident and its own staff carrying out interviews.
2. Demonstrated engagement with various support agencies and other resources by directing the resident to the police for the reporting of criminal allegations and committing itself to engaging with all relevant parties to progress the matter.
3. Sought to protect the resident and neighbour’s wellbeing by putting in place steps to avoid confrontation between the parties.
The evidence also demonstrates that the landlord allowed some flexibility in its ASB procedure so as to give the resident the best opportunity to have her reports substantiated. The landlord considered the resident’s concerns about the cost of printing new diary sheets to record the noise and provided a reasonable solution by sending the resident sheets to fulfil the same purpose that could be filled in electronically. This demonstrated it was engaging with the resident’s concerns and sought to seek a flexible approach to its ASB investigation, as set out in its ASB policy.
In addition to this approach to gathering evidence, it also took other steps towards this goal. It discussed the allegations with the relevant neighbour and interviewed other residents about their recollections of particular days when the resident had reported hearing noise nuisance. Its staff attended the property and carried out targeted patrols and it reviewed CCTV footage both from its cameras on the property and recordings provided by the neighbour to investigate specific incidents reported by the resident. On the basis of these enquiries, it came to a conclusion that there was not enough evidence available to make a negative finding against the neighbour, nor against the resident when it came to the neighbour’s counter-allegations of ASB. Nevertheless, it sent a letter to all residents on the property prior to this reminding them of their obligations not to block access with wheelie bins, which had been one of the issues raised by both parties.
The landlord also engaged with outside agencies in line with its policy to undertake a coordinated approach to the allegations, particularly those of a criminal nature. It communicated with the local police to gather evidence regarding the allegations of the neighbour’s alleged criminal activity and request information on the approach being taken by the former. The serving of a Community Protection Notice warning was an appropriate step for the landlord to take in recognition of the escalating reports and concerns held by the resident. The neighbour was warned in person and by letter of the allegations that had been made against them, as well as the consequences of such action should it continue. The landlord’s communication on 1 October 2020 indicated that following the service of the CPNW, there had been no substantiated incidents of ASB by the neighbour, which supported its position that it had acted appropriately in response to the allegations.
When the police made clear that the case was complicated by the existence of counter-allegations against the resident, the landlord took the valid approach of arranging a multi-agency meeting on 28 September 2020 which allowed for the sharing of information and a broader consideration of how the issues might be dealt with. The landlord took the reasonable position that, in circumstances where the police had elected not to pursue an investigation further or charges against the neighbour on the basis of insufficient evidence, it was also unable to do so. This showed a consistency with its communications with the resident that emphasised the importance of gathering evidence to support potential enforcement action: in the absence of this, the options available to it under the ASB policy were limited.
The landlord’s notes from the meeting note that it had maintained its earlier position that the resident had made many reports of ASB which were unfounded, lacking external corroborating evidence such as video footage or witnesses. This was a reasonable position to take given the contemporaneous evidence of the landlord’s response to reports prior to this, which show that it largely responded to the reports within its policy timeframe of 5 days and took reasonable steps to ascertain whether they could be substantiated. Its investigative steps were in line with its policy as it sought to gather evidence via a number of different avenues, but its lack of success in doing so supported the position that it could not take enforcement action against the resident.
Despite this, it encouraged the resident to continue to report ASB incidents to both itself and the landlord as appropriate, committing to acting on these in a reasonable fashion when evidence was made available. Though the resident has raised concerns that the landlord acted maliciously against her as a result of her raising of reports and pursuing of a complaint, the documentary evidence available does not support this position. While it was unable to carry out the resident’s request for a transfer to be arranged, it reasonably explained why this was the case and the thresholds of ASB that would need to be reached and evidenced before this could occur. In this way it set out its position clearly to the resident in line with its policy and demonstrated potential future resolutions to the issue if the correct steps were followed.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there has been no maladministration by the landlord regarding its response to the resident’s reports of ASB.

Reasons

The landlord took reasonable steps in response to the reports of ASB made by the resident against her neighbour. It attempted to substantiate the reports, gathering evidence from various sources and engaging with the resident, neighbour, other residents and police in an attempt to resolve the issue. It proceeded on the basis of the evidence available to it in serving a Community Protection Notice Warning on the neighbour, reviewed CCTV footage to consider the merits of specific allegations and was flexible in its use of diary sheets as requested by the resident to record the incidents. The decision it reached to not take further enforcement action was reasonable and in line with its policy.