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Optivo (now Southern Housing) (202212113)

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REPORT

COMPLAINT 202212113

Optivo (now Southern Housing)

21 September 2023

 

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 response to the resident’s reports of anti-social behaviour.
  2. This service has also considered the landlord’s record keeping.

Background

  1. The resident is an assured tenant of the landlord. She lives in a lower ground floor flat of a 3-storey house. The house is converted into 2flats.
  2. The resident complained to the landlord about its lack of communication after she reported anti-social behaviour (ASB) against her neighbours living in the property above hers. As a resolution she wanted the landlord to fully investigate her ASB case.
  3. In its stage 1 complaint response, the landlord upheld the complaint. It accepted that it had not updated her every 2 weeks as it said it would, and that it should have discussed the counter allegations of ASB made by the neighbour against her. As a resolution to the complaint, it confirmed that it would continue to investigate the case and update her every 2 weeks. It encouraged the resident to allow it to carry out a sound test, it encouraged the resident to engage in mediation with the neighbour, it signposted her to the council environmental team to report noise nuisance, and it offered the resident £75 compensation for the service failures identified.
  4. The resident remained dissatisfied. She felt that the housing officer dealing with the case had not reviewed evidence provided. She had contacted the council environmental noise team, but they concluded that her complaints were ASB and referred her back to the landlord, she complained that the landlord only contacted her about the ASB because she raised a complaint, she advised that she would not be present for the human sound test or mediation due to her mental health, and she felt that it was the neighbour that should be investigated. The resident was unhappy that the landlord passed her contact details to a mediation team without her permission. She refuted the counter allegations and requested specific details of the allegations including dates and times. The resident felt the housing officer dealing with her case was not treating her fairly and requested for the landlord to keep the ASB case open as it was ongoing.
  5. In its stage 2 response, the landlord advised the resident that it would not re-open the ASB case as it found no evidence to support ASB. It advised that it would assign a new housing officer if it receives further reports of ASB. It apologised for passing her contact details to a mediation team. It accepted that it failed to contact her in line with its policy and offered compensation of £150 for trouble and inconvenience, failure to follow process, delay in rescheduling a surveyor, and a missed appointment.
  6. When the resident brought her complaint to this service, she advised ASB was ongoing. As a resolution to the complaint, she wanted her neighbours to be moved from the property.

Assessment and findings

  1. When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only 3 principles driving effective dispute resolution:

a.         Be fair – treat people fairly and follow fair processes;

b.         put things right, and;

c.         learn from outcomes.

  1. The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the resident. If it is found that a failing did lead to an adverse effect, the investigation will then consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes’.

The landlord’s response to the resident’s reports of anti-social behaviour

  1. It is not this service’s role to decide if the matters reported amounted to ASB but rather, whether the landlord dealt with the resident’s reports appropriately and reasonably. Progressing all cases through the relevant aspects of its ASB procedure will enable a landlord to make an informed decision as to whether a reported issue amounts to ASB and if so, what action it should take in the circumstances.
  2. The landlord’s Anti-Social Behaviour Policy sets out how the landlord will handle a complaint about ASB. Clause 8.2 of the policy states that the actions that the landlord take will be “proportionate to the seriousness, impact and frequency of the behaviour, the level of risk that it poses to those affected and the evidence available. [The landlord] is not responsible for the behaviour of people causing ASB”. This service is satisfied that this is a reasonable approach for the landlord to take and has assessed the landlord’s conduct in this case in the context of the landlord’s general approach to cases of this type. We have also considered if the landlord was reasonable and treated the resident fairly in the circumstances.
  3. The landlord’s ASB procedures sets out that it will agree an action plan with the resident when opening a new case. Clause 11.1 states “an action plan should be concise and focus on what we’ll do to investigate their complaint. We’ll agree this with the complainant and review it throughout the investigation”.
  4. Clause 27.1 sets out a list of circumstances in which a case can be closed by the landlord, including, “the complainant has agreed that here have been no further incidents for 2 weeks or more, all reasonable action has been taken to resolve the matter, the complainant hasn’t engaged for 2 weeks or more, there’s no evidence to support the allegations, both parties in the case have agreed to mediation and the case officer has referred the case to our mediation provider, and if the case officer offers mediation, since it’s the best course of action to resolve the situation, and the complainant refuses to take part in the process.”
  5. Within the evidence reviewed, the resident referred to ASB from her neighbour since October 2021, however, it is not clear to this service if this was reported to the landlord at the time, or if a previous investigation took place. This investigation will focus on the landlord’s response to reports of ASB, the first of which is noted to have occurred on 10 March 2022.
  6. On this date, the landlord visited the neighbour’s property and inspected the neighbour’s floor and noted thick carpet and underlay. It witnessed an argument between the resident and her neighbour in respect of alleged ASB including noise nuisance. The landlord spoke with both parties separately and encouraged better behaviour between each other. It also advised the resident to fill in diary sheets and use its noise app to gather evidence of ASB. It was appropriate for the landlord to attempt to encourage better relations between the neighbours and to provide advice to the resident about gathering evidence of ASB. This is because early intervention can reduce escalation to ASB.
  7. The resident reported ASB against her neighbour on 11 April 2022 in the form of diary sheets and noise app recordings. The ASB included intimidation, harassment, and excess noise. The landlord wrote to the resident the next day with an agreed action plan which included:
    1. Contacting the resident’s neighbour within 5 working days and issuing a breach letter if sufficient evidence of ASB was found.
    2. Contacting the resident every 2 weeks.
    3. Updating the resident after contact with her neighbour had been completed.
    4. Requested the resident to keep diaries, take videos and report crime to the police.
    5. Return completed diary sheets by 27 April 2022.
  8. This was a good proactive initial response by the landlord. It was appropriate to set out an agreed action plan, in line with its policy, which advised the resident what it would do to investigate the reports of ASB, and it set out its expectations of the resident to continue to gather evidence of ASB.
  9. On 13 April 2022, the landlord called the resident after listening to noise recordings and left a voicemail for her to return the call. The resident returned the call the next day and left a message for the landlord to call her back. There is no evidence that the landlord returned this call and based on the landlord’s records it is not clear what the landlord’s thoughts on the recordings were. This indicates poor record keeping.
  10. On 25 April 2022, the landlord spoke with the resident’s neighbour about the allegations of ASB against her. Her neighbour denied the allegations and advised that sound travels between the properties as it is a house conversion. The neighbour agreed to keep noise to a minimum but made counter allegations of noise nuisance against the resident. The landlord spoke with the resident on the same date and advised her to monitor the noise for the next 2 weeks. It was appropriate for the landlord to update the resident that her neighbour had committed to keeping the noise down, as this was agreed as part of the action plan. The landlord should have advised the resident of the counter allegations at this stage. It acknowledged this failure in its complaint responses.
  11. On 28 April 2022 the landlord received further reports of ASB from the resident including noise recordings. The landlord’s notes show that it called the resident on 10 May 2022 who advised that the noise had reduced. However, the resident felt that her neighbours had breached their tenancy agreement by their ASB and that they should be moved to another property. The landlord advised that because the resident’s neighbours are co-operating, moving them out is not an action they would consider. There is no evidence to show that the landlord reviewed the resident’s ASB reports and discussed the reports as part of this conversation. While it was appropriate for the landlord to provide the resident with the neighbour’s point of view, it should have referred to the ASB reports submitted already, and it should have provided the resident with the counter allegations of ASB. This was unfair to the resident and the landlord failed to apply its policy. It should have reviewed the reports the resident had provided and explained its decision if these reports amounted to ASB or not.
  12. The landlord wrote to the resident on 26 May 2022 and advised that it had received allegations of ASB against her and scheduled a phone call for 13 June 2022 to discuss the allegations. This phone call never took place. On 14 June 2022, the landlord called the resident to discuss its ASB investigation against the neighbour. It advised that it reviewed 3 noise recordings but there was no evidence of excessive noise except on a few occasions. Based on the records it is unclear which 3 noise recordings the landlord had reviewed, but the landlord had received more than 3 noise recordings at this point. It had also received phone recordings and numerous diary sheets. The landlord did not address the phone recordings or the allegations of harassment on the diary sheets. Furthermore, the landlord did not provide the resident with details of counter allegations of ASB from the neighbour. At this point, the landlord had failed to return a phone call, failed to keep the resident updated every 2 weeks, as agreed, and failed to provide the resident with counter allegations of ASB, as agreed. By not delivering on its agreed actions, the resident likely felt she was not treated fairly.
  13. The resident disagreed with the landlord’s position that there was no evidence of excessive noise and accused the landlord of lying and taking her neighbour’s side. She felt that her neighbours were breaching their tenancy by harassing her and that they should be moved. The landlord advised this was not an action they could consider as it had no solid evidence of ASB. However, it is not clear if the landlord clearly outlined to the resident what it considered to be excessive noise and what it considered to be everyday living noise. The record of this call was poor. Based on future correspondence, it is likely that the landlord offered the option of mediation on this call, but the resident refused. Again, the landlord did not provide the resident with details of the counter allegations of ASB against her. This demonstrates poor communication by the landlord and likely contributed to the resident’s belief that it was taking her neighbour’s side.
  14. The landlord wrote to the resident’s councillor on 16 June 2022, in response to an email of 22 May 2022, (this service was not provided with a copy of this email) and advised that the noise reports it had reviewed would be considered everyday living noise. It confirmed there is an ongoing investigation into ASB and there were counter allegations of ASB against the resident. The landlord further advised that it had arranged a surveyor to assess the floorboards and door closures, doors to be eased and adjusted, that it would carry out a human noise test, and check the flooring in the upstairs flat. The landlord signposted the councillor to the council’s noise abatement team. The landlord advised it felt mediation was the best way forward and the resident’s neighbour had agreed to this. These were good measures for the landlord to propose but it should have also communicated its findings and proposed measures directly to the resident.
  15. On 23 June 2022, the resident reported 13 incidents of ASB, including diary sheets and noise recordings, from 23 April 2022 until 17 June 2022. The landlord did not acknowledge these reports and did not contact the resident until after she raised a complaint on 14 July 2022. The resident was unhappy about the lack of communication from the landlord because it did not keep her updated every 2 weeks. This was unfair to the resident, especially because of the distress the resident had reported, and the landlord failed to act in its agreed action plan of contacting her every 2 weeks.
  16. The landlord contacted the resident on 19 July 2022 to discuss the complaint. The resident was unhappy that the last contact with the landlord was a phone call on 14 June 2022, when it said it would review noise recordings. She advised the landlord that the ASB is ongoing. She accepted that she declined mediation, however, this should not mean that her case should be handled poorly. On a further call on the same date, the landlord wished to arrange a home visit to investigate the noise complaint. The resident advised that she would not be present for a visit and that it should discuss the ASB with her neighbour only. The landlord was dealing with a difficult situation with allegations and counter allegations.It was reasonable for the landlord to request a home visit to assess the noise.
  17. In its stage 1 complaint response, on 29 July 2022, the landlord apologised for not providing the resident with the counter allegations against her and acknowledged that there were delays in providing her with updates in the case as the case worker was on leave. It noted that the resident refused a home visit but advised that this would be of benefit to her case. The landlord advised that based on the ASB recordings it had received, there were only a few instances of excessive noise. It advised that some noise, like children playing, would not be considered ASB. To address the noise transference the landlord advised it would arrange a surveyor to ease and adjust doors in the property, carry out a human noise test and check the neighbours flooring. To address the ASB, the landlord advised that it would refer the resident for mediation, sign posted the resident to the council noise team and advised that it would visit her neighbour also. These were good proposals from the landlord to address the resident’s ongoing reports of ASB, especially when it acknowledged some service failings.
  18. On 1 August 2022, the landlord wrote to the resident and to the resident’s neighbour to advise it had received allegations of ASB and scheduled a visit with both parties to discuss the allegations and perform a sound test. This was a good proactive approach from the landlord to gather evidence of ASB and discuss the issues raised.
  19. The resident responded and advised that she would not be present for the noise test. She strongly felt the noise recordings provided via the noise app evidenced deliberate noise and anti-social behaviour and she did not feel a noise test was logical. A case file note on 2 August 2022, showed that it would install noise monitoring equipment. In correspondence to the resident’s MP, the landlord advised that the resident refused noise monitoring equipment. However, there is no evidence that the landlord made an offer to install noise monitoring equipment. It offered a human noise test and mediation only. This was unreasonable and unfair to the resident. She felt the noise was deliberate ASB. Noise monitoring equipment may have provided a clearer recording and a better understanding of the noise experienced by the resident. The landlord failed to follow up with an offer of its intentions to install noise monitoring equipment.
  20. On 4 August 2022, the resident requested details of the counter allegations of ASB against her in writing. She also advised she did not wish to take part in mediation, because of her mental health she did not wish to be near her neighbours. The landlord replied and provided details of counter allegations of ASB against her. Based on the evidence, this was the first time the landlord provided allegations of ASB against the resident since the neighbour made the allegations on 25 April 2022. This is a delay of over 3 months. This was unreasonable and unfair to the resident and likely contributed to her feeling that the landlord was not taking an independent, balanced approach to its ASB investigation.
  21. On 23 August 2022, the landlords case notes show that it has listened to noise recordings, but the recordings are mostly everyday living noise and because the resident refused the noise monitoring equipment, it will close her case. On 5 September 2022, the landlord wrote to the resident and advised that it intended to close the case because it has found no evidence of ASB and because the resident refused installation of a noise recording machine, refused a human noise test, and refused mediation. On 6 September 2022, the resident contacted the landlord to escalate her complaint. She was unhappy that the landlord had not contacted her since 12 August 2022 about her ASB case before writing on 5 September 2022 to state that it was closing her case. This is the second time the landlord failed in its agreed action plan (to contact her with an update every 2 weeks). On 16 September 2022, a case file note shows that it closed the case because it found no evidence of ASB, and the resident was not engaging with actions to resolve the problems. This was unreasonable and unfair to the resident because, based on the evidence provided, the landlord did not offer noise monitoring equipment and there was no evidence that the resident refused it. Although the resident refused mediation, due to her mental health, the landlord did not explain the benefits of mediation or offer alternatives to mediation. The landlord’s case note that the resident was not engaging was unfair. There is evidence that the resident was continuing to fill in diary sheets and take noise app recordings. Also, the landlord did not engage with the resident every 2 weeks as agreed. Furthermore, as the landlord’s handling of the ASB case was the subject of a complaint, it was inappropriate to close the case at that time.
  22. The resident initially refused to take part in mediation. She stated she did not want to be near her neighbours. In her initial complaint, the resident felt the landlord was not investigating her reports of ASB because she refused mediation. As part of its stage 1 complaint response, the landlord advised that it would refer her to mediation. This was inappropriate as the resident had already stated that she did not want to take part in this process. After the stage 1 complaint response, the resident re-stated that she did not wish to take part in mediation. Due to her mental health, she did not want to be near her neighbours. Despite this, the landlord passed the resident’s details to a mediation team who then contacted the resident to arrange mediation. This was inappropriate and unfair to the resident because she had already clearly stated that she did not wish to take part in mediation due to her mental health. The landlord should have provided the benefits of mediation and considered a form of mediation whereby she didn’t have to be in the same room as her neighbour.
  23. This service finds that there was maladministration with the landlord’s handling of the resident’s reports of ASB. This is because it did not correctly apply its ASB procedures in its ASB investigation. It did not  follow its agreed action plan to contact the resident every 2 weeks to update her on the case, it delayed in providing the resident with counter allegations of ASB, it unreasonably closed the ASB case when the resident was still engaging, there is no evidence that it offered noise monitoring equipment, it passed her contact details to a mediation team without her consent, andwhen it learned of the resident’s mental health issues it failed to support her with alternative options to mediation before closing the case.
  24. The landlord acknowledged some of its failings in its complaint responses. It acknowledged its failing to contact her every 2 weeks as agreed, it acknowledged that it delayed providing counter allegations against her, it apologised for passing the resident’s details to a mediation team without her consent, and advised it is training its staff on ASB case management training. The landlord offered compensation of £150 for its failure to follow process, a missed appointment, delay in rescheduling an appointment, and trouble and inconvenience. This service finds the compensation offered did not reflect the level of distress caused to the resident by its failures identified in this report and orders compensation of £500 to be paid to the resident.
  25. The resident has advised this service that a further ASB case is ongoing. If it has not done so, it is ordered that the landlord revisits its offer of noise monitoring equipment to assist in gathering evidence.
  26. It is noted that the landlord committed to case management training on ASB in its stage 2 complaint response. If it has not already done so, it is recommended that the landlord review this service’s spotlight report on noise complaints and consider the benefits of implementing a good neighbourhood management policy. Options of early mediation, information sharing, community building events, and dedicated staffing can assist when dealing with neighbour friction and reduce escalation to ASB.

Record keeping

  1. Throughout the landlord’s ASB investigation its record keeping was poor. The resident has provided records of179 reports of ASB via diary sheets, noise app recordings and phone recordings. It is not clear from the landlord’s case file notes which dates of the noise recordings it had reviewed before contacting the resident. Based on telephone and written communication with the resident there are few references to dates of the noise recordings it had reviewed. This service cannot determine if the landlord reviewed each report of noise or each diary sheet in its investigation.
  2. Based on the evidence, mediation was offered to the resident, but it is not noted in any record when it was initially offered. The landlord also closed the ASB case partly because the resident refused noise monitoring equipment. Based on the evidence, there is no record of this offer and no record of the resident declining the offer.
  3. The landlord should have systems in place to maintain accurate records of ASB reports, responses, and investigations. Good record keeping is vital to evidence the action a landlord has taken and failure to keep adequate records indicates that the landlord’s processes are not operating effectively. The landlord’s ASB record keeping was inappropriate.
  4. This service finds that there was maladministration with the landlord’s record keeping. It is noted in its stage 2 complaint response that the landlord committed to assessing its ASB service. If it has not already done so, it is ordered for the landlord to review its record keeping procedures in relation to ASB.
  5. It is recommended that the landlord review this service’s spotlight report on knowledge and information when reviewing its record keeping procedures. This sets out the benefits of good record keeping and provides recommendations for landlords.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration with the landlord’s response to reports of anti-social behaviour.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration with the landlord’s record keeping.

Orders and recommendations

Orders

  1. It is ordered that the landlord pay the resident compensation of £500, (inclusive of its previous offer of £150), for the distress caused to the resident by its failures identified in this report.
  2. If it has not already done so, it is ordered that the landlord revisits its offer of noise monitoring equipment to assist in gathering evidence.
  3. If it has not already done so, it is ordered for the landlord to review its record keeping procedures in relation to ASB. In the first instance, it should review this case to determine why there was no record of its offer of mediation, no record of its offer of noise monitoring equipment, and no record of dates of noise recordings it had reviewed, and what action it has/will be taken to prevent a re-occurrence of this situation and provide this service with details of the outcome.
  4. The landlord should provide evidence to this service that it has complied with the above orders within 4 weeks of the date of this report.

Recommendations

  1. If it has not already done so, it is recommended that the landlord review this service’s spotlight report on noise reports (attached) and consider the benefits of implementing a good neighbourhood management policy.

https://hos.dev.civiccomputing.com/wp-content/uploads/2022/10/Spotlight-Noise-complaints-final-report-October-2022.pdf  

  1. It is recommended that the landlord review this service’s spotlight report on knowledge and information (attached) when reviewing its record keeping procedures. This sets out the benefits of good record keeping and provides recommendations for landlords.

https://hos.dev.civiccomputing.com/wp-content/uploads/2023/05/KIM-report-v2-100523.pdf