Stonewater (2) Limited (202008221)

REPORT

COMPLAINT 202008221

Stonewater (2) Limited

7 June 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:
1. the landlord’s handling of reports of Anti-Social Behaviour (ASB).
2. The complaint is also about the landlord’s complaint handling.

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 X of the Housing Ombudsman Scheme, the following aspect/s of the complaint is/are outside of the Ombudsman’s jurisdiction.

Background and summary of events

Background and Policies

The resident was an assured shorthold tenant of the landlord, at the property, from 13 February 2020, until he left the property, ending his tenancy on 16 October 2020.
The landlord’s ASB policy states the actions it may take in investigating ASB, including issuing diary incident sheets to victims to complete and return and installing noise monitoring equipment.
Paragraph 5.3.4 of the policy states that “[The landlord] will record and monitor cases and incidents of ASB………to maintain a clear audit trail of actions and will ensure that customers are kept informed, agreeing the method and frequency of feedback in the case action plan”.
The same policy sets out the actions the landlord may take to tackle ASB, including discussing the issues with the perpetrator and offering mediation and undertakings and in more serious cases, pursue legal action, including injunctions.
The landlord has a three stage complaints procedure. If a complainant is dissatisfied with the response at stage one, they may request the complaint is reviewed at stage two. If the complainant remains dissatisfied, they may request the complaint be escalated to stage three, whereby an independent panel will consider the matter, or alternatively escalate the matter to the Ombudsman.

Summary of events

Shortly after moving into the property, the resident reported incidents concerning the neighbour who lived in the property beneath his. Specifically, banging and slamming in the property at unsociable hours was reported.
On 1 March 2020 as the resident was walking his dog, his neighbour was said to have shouted at him “I told you, no-one uses this grass” through her window, before slamming it shut. A few days later, on 5 March 2020, the resident reported to the landlord that having knocked on the neighbour’s door to ask her to turn loud music down in the early hours of the morning, she shouted “if you don’t like it, move” and slammed her door shut.
Later that day, the resident reported the neighbour taking photographs of him while he was walking his dog and this and him being filmed, alongside noise and hostile comments, became the source of most of the reports that followed.
The landlord wrote to the neighbour on 5 March 2020 to warn her about her behaviour. The landlord recognised that the issues being reported by the resident echoed reports from previous tenants at the property where the resident lived and reminded her of this and stated that it may take more formal action if her behaviour continues.
The neighbour began to report ASB which she said the resident had been a perpetrator of, which mostly consisted of him being said to be making noise, as well as staring at her, trying to intimate her and standing in her area of the garden.
Between February and May 2020, the police attended the resident’s property on nine occasions, following reports made by the neighbour. The resident said that he was unaware of the incidents reported and had done nothing wrong and no action against him was ever taken, due to a lack of evidence.
With the situation quickly escalating, on 13 March 2020 the landlord contacted the local authority to request advice and kept in touch with the police.
On 17 March 2020, the resident advised the landlord that he had logged a case of harassment against the neighbour as he was feeling “intimidated” and “distressed”. At this time, the police decided to take no further action, however, due to a lack of evidence.
The following day the landlord again wrote to the resident about the behaviour reported and said that it may take enforcement action due this being repeated behaviour that she had demonstrated towards previous tenants.
The situation continued to escalated, with the resident communicating to the landlord the impact it was now having on his health, with him experiencing heart palpitations and him having trouble sleeping.
With additional reports of slamming doors and notes being pushed through his door, as well as the landlord being made aware that the neighbour had been trying to convince other neighbours to complain about the resident, the landlord wrote a further warning letter to the resident on 25 March 2020. In it, it stated that it was working with the police regarding the issues and would be deciding whether to take more formal action.
Around this time, the increasing stress on the resident led to him slamming doors back, which he acknowledged in his correspondence with the landlord. At the same time as the resident was reporting incidents, the neighbour was also reporting similar incidents, including the resident making noise and sound recordings were received where some noise could be heard.
Towards the end of March 2020, the landlord contacted an independent agency for advice, who suggested carrying out a sound test at the property. It is unclear whether this sound test was ever carried out.
The situation continued with reports increasing on both the part of the resident and his neighbour from the beginning of April 2020. The resident started to become dissatisfied with the landlord’s handling of his reports, feeling it was not doing enough and he said that he was “no longer being considerate” and “tiptoeing” around, as he felt the landlord was “appeasing” the neighbour. The resident had also become aware that a number of tenants before him had experienced similar issues with the neighbour below.
On 2 April 2020 the landlord spoke to both the resident and his neighbour, following up the discussion in writing to them the following day, advising the resident to evidence the noise and that the neighbour was also collating evidence and the following week, on 7 April 2020, offered mediation to both parties, which was declined by the resident.
The landlord continued to liaise with the police and on 21 April 2020, agreed to pay for carpeting and soundproof underlay in the resident’s property, which it communicated to him that day and he agreed to be installed.
Reports continued from both sides, with the neighbour now reporting the resident being in her garden, which he strenuously denied. The landlord has not been able to provide a date that the resident allegedly did this, or show any independent evidence supporting this to be the case, despite saying that it has this. This has been particularly upsetting to the resident who feels accused of something he did not do and due to the lack of specifics or evidence, is unable to defend himself.
Reports of noise carried on being made by both the resident and neighbour and on 24 April 2020 the landlord wrote to the resident to reiterate she should keep a log of the issues and to the resident, it advised that no evidence was received of him making noise but that it needed to make him aware that there had been a complaint.
Reports continued at the end of April and into May. In a discussion on 1 May 2020 regarding doors slamming, the landlord suggested foam door guards, which it dropped off with the resident later that day. The carpet also appears to have been fitted in the resident’s property around this time.
On 4 June 2020, the landlord wrote to the neighbour advising that the doors she could hear closing did not constitute a noise nuisance and advised that the resident’s property would be carpeted with underlay shortly which should help. It also noted that both the resident and neighbour had said they would minimise disturbance, although it is not clear when this was said by either the resident or the neighbour as tensions were running high and the problem was viewed as residing only with the other.
A ‘good neighbour agreement’ appears to have been put together around this time, although this document has not been provided to this investigation, so it is unknown what was agreed.
Having received recordings from the neighbour via the ‘Noise App’ the landlord had issued to her, on 10 August 2020 the landlord wrote to the resident, warning him in respect of reports of excessive noise coming from his property. It advised that he should also record noise if he had issues with noise emanating from the neighbour’s property and added that it was concerned that his friend was antagonising the situation, reminding him that he was responsible for visitors at the property.
On 11 September 2020, the landlord has stated that following an independent review, it was found that both parties had engaged in unacceptable behaviour. It wrote to the resident to advise this and to reiterate its earlier offer of mediation and noted that it had also offered support in respect of the resident’s health which he had declined. On the same date and in a further letter sent on 21 September 2021 it wrote to the neighbour advising of further action it would be taking in respect of her behaviour although for reasons of confidentiality, these actions cannot be disclosed in this report.
On 22 September 2020 the resident pursued a second harassment case against the neighbour for continuing harassment, which has been said to have been successful by the resident.
On 16 October 2020, the resident ended his tenancy, deciding that he could not tolerate the stress of the situation any longer and the following month, on 17 November 2020, made a formal complaint to the landlord regarding its handling of his reports of ASB and its treatment of him. He wanted evidence of him allegedly going into the neighbour’s garden, which he fiercely denied. He questioned why his assertions and evidence, including video footage, had not always been followed up on and felt that his reports had not been taken seriously.
On 30 November 2020, the landlord applied to the court for an injunction against the neighbour, in respect of any tenant living in the property above hers/neighbours.
On 1 December 2020 the resident contacted the landlord again, asking why they housed him in that property, in the knowledge of his own mental health problems and repeated his earlier questions.
On 27 December 2020 the landlord responded to the complaint at stage one of its complaints procedure. The complaint was not upheld, with the landlord finding that it had responded to the situation appropriately, stating that the matter started as “normal living noise” which could be heard because of the poor sound insulation at the building.
The landlord found that it worked with both the resident and neighbour to try to resolve the issue amicably, as well as took a multi-agency approach by liaising with the police and environmental health to seek their guidance.
It did not accept the allegations made by the resident were false, stating that it had independent witnesses to corroborate the resident being in the neighbour’s garden on one occasion, although it advised that it may not have the date as to when this took place.
On 14 January the resident contacted the landlord with a number of questions he wanted answered as to its handling of the situation and on 16 January 2020 asked the landlord to escalate his complaint through its complaints procedure.
On 19 January 2021 the landlord’s application for an injunction was postponed until 11 March 2021.
On 1 February 2021 the landlord responded to the complaint at stage two of its complaints procedure. The complaint was not upheld, with the landlord finding that it had responded to the reports of ASB appropriately by way of offering mediation, working with the police and collating evidence sufficient for legal action.
The landlord acknowledged that it may have an incorrect date for the reported incident of the resident allegedly looking through a neighbour’s window in an intimidating manner.
In respect of housing the resident in the property, it advised that it is the local authority who determine who is put forward for one of its homes and that it runs through certain allocations checks to shortlist who it offers a home to but would not discriminate on the grounds of mental health.
The landlord has provided evidence that whilst the resident was pursuing his formal complaint with the landlord, it continued to pursue the action it was taking against the neighbour and that it was successful in doing so.

Assessment and findings

In cases concerning ASB and noise nuisance, it is not the role of the Ombudsman to determine whether the ASB occurred, but rather, to assess how the landlord responded to reports made and whether its reports where in accordance with its policies and procedures and appropriate and reasonable in all of the circumstances.
In this case, there is a clear history of problems with the neighbour below the resident’s property, which has ultimately led to the landlord taking legal action by way of seeking an injunction at court, which was granted.
The Ombudsman cannot look at the history of the case in terms of previous resident’s and historical complaints which may or may not have been made, as it is not these complaints which have been brought to this Service, but that of this particular resident. What can be considered, however, is the wider context of the case which includes a history of known issues.
The resident raised queries about the decision to house him in his property. The local authority is responsible for banding and allocations and any complaint about this, falls under the remit of the Local Government Ombudsman (LGO). The landlord would have decided to house the resident in that particular property; however, the decision to choose that particular property from its housing stock was not part of the original complaint but instead, a later, secondary question which the resident sought to be answered. As such, this was not a matter investigated by the landlord as a formal complaint and therefore cannot be determined by this Service.
However, it is important to note that social housing is limited and landlords seek to house individuals on a priority basis, balancing need and what is available. Consequently, tenants can be housed in properties which are deemed suitable by the landlord under its criteria but not the tenant. The reasoning for the landlord housing the resident in this particular property with a history of ASB issues with the neighbour below is unknown; it may have simply been the case of the resident being next in the list and this being the next property available or there could have been an assessment of suitability given the historical issues and the resident’s mental health and nonetheless a decision arrived at that issues could be managed and that it may work.
The decision making is not known and cannot be investigated by this Service for the reasons described above. However, with housing stock limited, a social housing property cannot be left empty and many individuals have experience of mental health difficulties. To rule out everyone who has experienced mental health difficulties would undoubtedly be unworkable. That is not to say that what the resident has experienced is acceptable or that this was not an extremely stressful time for him; it is evident that this was the case from the documentation provided to this Service and with him moving out of the property shortly after moving into it.
The landlord acted quickly in responding to the resident’s reports of ASB, by initially writing to her, warning her about her behaviour and later speaking with her. It is an unusual step for a landlord to issue a warning letter in the first instance, as it did in this case, this evidencing the seriousness with which the landlord took the reports and indeed, its reference in the very first warning letter, regarding her behaviour and recognising the reports echoed historical incidents. The seriousness with which it took matters is also evidenced by its frequent correspondence with the police, local authority and other agencies, to seek to resolve matters as quickly and painlessly as possible.
The landlord sent a number of letters to the neighbour over time and had conversations with her about her behaviour which were in themselves, appropriate actions. It missed an opportunity, however, to convey the seriousness with which it took the situation, to the neighbour herself both at the outset and throughout. Although the letters warned the resident of her behaviour and potential legal action, there is no evidence of the landlord meeting with the resident to discuss what was happening and to emphasize the importance of compliance on her part.
The resident clearly became frustrated and distressed over time, which resulted in some retaliatory actions, such as banging doors when the resident banged her doors. There is no evidence of the landlord having similarly, sat down with the resident, discussed his concerns and put together an action plan as to how it would tackle the situation, including what steps it would take and by when. This lack of management and planning left the resident feeling that nothing was being done, antagonising the situation and strength of feeling around it – despite actions behind the scenes with the landlord’s multi-agency approach and latterly its pursual of legal action, albeit after the resident had left the property.
In cases of ASB it is usual practise to gather evidence and the resident cooperated with investigations, providing diary incident logs of various incidents (although these have not been provided to the Ombudsman). It is unclear, however, what the landlord did with this collated evidence or whether sound recordings from the resident were also captured and assessed by the landlord. It is also not known whether the landlord carried out the sound survey as was recommended by the independent agency. This is separate to the carpet and underlay it provided; the carpet and underlay being reasonable steps on the part of the landlord as it was not obliged to do this despite the problems because the tenant was responsible for floor coverings at the property. Although there was some discussion, letters and liaison with other agencies, the landlord did not go far enough to practically tackle the issues.
In terms of the landlord writing to the resident about noise from his property and him allegedly being in the garden staring at the neighbour, although he had been the initial reporter of ASB and the victim rather than perpetrator, in the face of a counter-complaint, the landlord was obliged to investigate the reports made in accordance with its ASB policy.
It was inappropriate, however, for the landlord to state in its complaints responses that it definitively found that the resident definitely did this, in the absence of any date or further information. This was insensitively delivered, given the context of the case with long standing ASB perpetrated by the neighbour.
Furthermore, its responses to the complaint were wholly inappropriate. It was inappropriate for the landlord to state that the issues were initially due to “normal living noise” where the early reports did not simply involve noise, but reports of hostile comments and aggravating behaviour outside of the property. The complaint responses did not recognise this, nor did it recognise that the reports of noise were not regarding ordinarily living noise, but noise, including music and banging, at unsociable hours and believed to be intended to provoke.
Furthermore, the landlord was aware at the outset of the historical concerns and that the issues with the resident were repeats of previous behaviours and its responses were at best, insensitive, given its awareness of the wider picture. While it appears that the properties were poorly insulated, the issues did not concern ordinary living noise – such as hearing conversations, cleaning or the TV (at a reasonable volume) during sociable hours – they were quite different. It was incorrect and disingenuous for the landlord to deem this to be the problem, where at the same time it was pursuing action against the neighbour, given her repeated behaviour.
The responses missed the crux of the complaint and paid no regard to the severity or impact of it on the resident. Although the landlord referenced offering mediation, it is not clear when it did this and despite ordinarily a resident is reasonably expect to engage in resolving ASB or a neighbour dispute in this way where circumstances deem it appropriate, there is no indication why the landlord felt this to be an appropriate response given the hostility and history.
Finally, the landlord’s stage two review of the complaint repeated assertions at stage one and did not act as a review of the stage one response as it should have done in accordance with its policy. The landlord was not obliged to answer additional questions raised by the resident in its response as they were not part of the original complaint, however, given the circumstance that the resident was dissatisfied living at the property and ultimately left, and that it would have been in line with good complaint handling for the landlord to have provided clarification over the allocation of his property.
Although it said it would not discriminate on the basis of mental health when housing a tenant, this did not answer the question posed by the resident, which was why the landlord took the decision to place him in that particular property where there were known ASB issues given his mental health problems. The landlord did not demonstrate in its response to the complaint that it had heard and understood the resident’s concerns. Nor did it thoroughly and robustly respond to the complaint or demonstrate empathy or compassion towards the resident.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in respect of the complaint about the landlord’s handling of reports of ASB.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration in respect of the landlord’s handling of the complaint.

Reasons

There was service failure in respect of the landlord’s handling of the ASB insofar as it did not take sufficient practical and robust actions early enough, nor did it set out an action plan with the resident to provide a clear pathway as to how it would address the issues or manage expectations.
There was maladministration in respect of the landlord’s complaints handling insofar as it did not demonstrate that it had heard and understood the concerns, branding the issues as “normal living noise” when this was not the case and not what was reported. It was disingenuous to deem this to be the issue when it was aware of historical issues, with the current issues echoing this and while it was actively pursuing action against the neighbour for her behaviour. Additionally, the landlord did not provide a thorough response to the issues raised or review the case as it should have done at stage two.

Orders

The landlord is to pay the resident £400 compensation, comprised of:
1. £150 for the service failures identified in its handling of the reported ASB, and;
2. £250 for the maladministration found in its complaints handling.
The landlord is to carry out a lessons-learned exercise in respect of the findings in this report and to update the Ombudsman as to its findings and actions to remedy these and prevent this from happening in the future.