Broadland Housing Association Limited (202101362)

REPORT

COMPLAINT 202101362

Broadland Housing Association Limited

15 August 2022

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about:
1. the landlord’s response to the resident’s reports of ASB from January 2020 onwards.
2. the landlord’s response to the resident’s reports of ASB between December 2017 and December 2019.
3. a lack of clarity relating to the property’s boundaries.
4. the Community Trigger review meeting, the decision that was reached and the process that was followed.
The Ombudsman has also assessed 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, complaints 1b, 1c and 1d are outside of the Ombudsman’s jurisdiction.

Reports of ASB prior to January 2020

It is acknowledged that the resident was experiencing ASB prior to 2020, and that this had been reported to the landlord. While the Ombudsman acknowledges that the ASB the resident has been experiencing has been longstanding, we have not investigated incidents that took place between 2017 and 2019 as part of this investigation.
Paragraph 39(e) of the Housing Ombudsman Scheme states that “the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, were not brought to the attention of the member as a formal complaint within a reasonable period, which would normally be within six months of the matters arising.”
While this Service does not seek to dismiss the incidents of ASB that took place prior to 2020, as issues become historic, it becomes increasingly difficult to conduct an effective review of the actions taken to address them. This may be owing to information no longer being available, or changes in staff. It is for that reason that we encourage residents to raise matters with a landlord while they are still “live”, so that evidence is still available to reach an informed conclusion on the events in question. Our investigation has therefore focused on matters that transpired in the six months prior to the resident raising her formal complaint in 2020, until the landlord’s complaints procedure was exhausted for a second time in June 2021. Historical events have been referred to in the report for the purpose of providing context only.

The property’s boundaries

During the course of the resident’s complaints to the landlord in both 2020 and 2021, the issue of the property’s boundaries was raised. The resident had referred to information that she was provided by landlord staff in 2006, and that she had been informed that the four parking bays to the front of the property all belonged to her property.
This was agreed by the landlord in 2020, and later considered through the complaints procedure in 2021. At panel review stage, it was acknowledged that the property would ordinarily have been let with just two car parking spaces. However, given what the resident had been told previously, all four bays would belong to the property for as long as she remained there. The panel confirmed that the extent of the resident’s home included the bungalow and gardens, including the grassed area to the front of the house, together with an exclusive right to park in the four spaces to the front of the property.
Given the decision that was reached by the panel, it is unclear why the resident considers that there has been a lack of clarity surrounding the issue. However, the process of ascertaining what the property’s boundaries are would involve consulting Land Registry and potentially applying to Court if there was a dispute. Paragraph 39(i) of the Housing Ombudsman Scheme states that the “the Ombudsman will not consider complaints which, in the Ombudsman’s opinion, concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.”
The Ombudsman cannot make a binding decision as to where the property’s boundaries lie. This falls outside of our jurisdiction. However, given that the resident is a tenant of the landlord’s property – and not the freeholder of the land – the resident should consider seeking legal advice about her rights in the first instance before deciding to pursue any particular course of action.
While the Ombudsman cannot reach a decision in relation to the boundaries, we referred to the matter in the report below for the purpose of providing context.

Community Trigger review meeting

In correspondence to this Service, the resident has raised concerns about the Community Trigger review meeting. This includes who was in attendance, the decision that was reached and the process that was followed. While the resident’s concerns are acknowledged, this is not a matter which can be investigated by this Service.
Paragraph 39(m) of the Housing Ombudsman Scheme states, “the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body”.
The Community Trigger review is a multi-agency process, which has its own appeals process. The Ombudsman’s jurisdiction is limited to assessing the actions of member landlords in relation to housing-related activities. When the Community Trigger review decision was shared with the resident, she was given information about what she could do if she wished to appeal the decision. The information provided to this Service suggests that the resident had indicated to the landlord that she would be appealing the decision in May 2021. It is not clear whether the resident did appeal the decision; however, matters relating to how the review was conducted fall outside of the Ombudsman’s jurisdiction, and should reasonably be raised through the Community Trigger appeals process. The Community Trigger review has been referred to in our report; however, the handling of the review has not been assessed as part of this investigation.

Background and summary of events

The resident is a tenant of the landlord’s property. The property is a bungalow, located at the far end of a residential close. The property has an area to the front-left which has parking bays. The area to the front-right is grassed. The resident is a wheelchair user, and has a number of vulnerabilities, of which the landlord is aware. The resident first began to raise concerns about her neighbours using the area to the front of the property to turn and park their vehicles in 2017.

2020 complaint

In July 2020, the resident made contact with the landlord as she was concerned that someone was trying to deliberately damage her vehicle. The resident explained that she had reported the matter to the police – together with incidents of dogs fouling in her garden. The resident also advised that she had “had enough” of the situation and that she had done all she could to try and move. On 13 July, the landlord responded to the resident and thanked her for the information she had provided. The landlord advised that it would be reviewing the resident’s emails in full, to ensure that the complaint was “assigned to the correct stage” of its complaints procedure.
Meanwhile, the police attended the resident’s property to discuss some concerns which she had reported. A police officer contacted the landlord on 15 July, after the visit to advise the landlord that the resident’s main concern appeared to be in relation to parking – and vehicles using the area next to the property. The resident was also concerned about a temporary fence that had been damaged by the resident’s neighbours. The officer advised that she thought a join approach would be good to talking the issues – noting that while no criminal or illegal activity had taken place, the situation was causing the resident distress.
The landlord issued a stage one response to the resident’s complaint on 29 July 2020. Within this, it said:
1. It noted that the resident had reported a number of ASB incidents from December 2017 onwards. It had looked at each report and considered whether its response had been appropriate:
  1. It could see that an email from the resident on 4 December 2017 had not been responded to. Further details relating to the email were unavailable; however, it could not see that it had been dealt with. It therefore upheld this element of the complaint.
  2. A further email was sent on 5 December. This had been responded to, and the landlord had advised that it would be visiting the scheme to look at the allocated parking. While the email had been responded to, it had not been logged on the system. There was also nothing to suggest that it had been followed-up. This part of the complaint was therefore also upheld.
  3. In 2018 incidents were reported in March and November. It considered that appropriate action was taken in March; but not in November. In the November, the resident had raised a number of concerns both in relation to the property and her neighbours. The landlord could not find evidence that it had dealt with this appropriately.
  4. Three incidents had been reported in 2019. Of these, two were upheld, and one was partially upheld as the landlord could not ascertain that an appropriate response had been provided.
  5. In April 2020, the resident had emailed her neighbourhood Officer to complain about her neighbour’s dog fouling in her garden. While a response had been provided, the details of the complaint were not updated on its system within an appropriate timescale.
2. It would be investigating any previous complaints that the resident had made about ASB. It also wished to apologise as it had missed a number of opportunities to investigate the resident’s complaints and to provide her with an appropriate response. It was sorry that it had failed to provide her with a good level of service.
3. While the resident’s concerns that its inaction over the years had led her neighbours to believe they could “get away with” their behaviour, there was no guarantee that any action would have been taken even if the previous reports and complaints had been handled appropriately. Any action would have been dependent on the outcome of each investigation.
4. The resident had queried whether her historic complaints could be used. While it could not go back and thoroughly investigate the historic reports, it could refer to the previous incidents in the event of any further ASB. However, it would need to be clear that the historic reports had not been fully investigated, and the neighbours would also need to be given the opportunity to respond.
5. In light of the resident’s dissatisfaction, and to try to put things right, it had implemented some measures, as follows:
  1. Appointing a different Neighbourhood Officer to deal with the resident’s complaints.
  2. Appointing a separate Neighbourhood Officer to deal with any counter allegations.
  3. For a named Housing Manager to oversee the complaints and to improve the service provided to the resident.
  4. The residents emails had been shared with all staff involved.
  5. It had asked the Housing Manager to consider setting up agreed times of contact, so that the resident was not chasing staff and becoming frustrated.
6. In addition to the complaints process, the resident could also request an ASB review, known as a Community Trigger. This would facilitate an independent review. Further information was provided about the process.
7. It had discussed the complaint with the resident, and noted that her desired outcome was for her neighbour to be evicted – and that she wished to be moved to a two-bedroom sheltered Bungalow with level access, in a particular area. It was unable to evict the resident’s neighbour. If it was able to consider legal action against the neighbour, this would be discussed by the Neighbourhood officer. In relation to being moved, it was noted that the resident had been awarded gold band on the waiting list. However, due to the lack of suitable properties in the area, applicants on gold banding could wait a considerable period to be rehoused. It had asked the housing team to continue supporting the resident and her application to move, if this was what she wished.
8. It had learnt from the complaint, and was in the process of making further improvements to how it deals with ASB. In addition, it had developed a customer enquiry function within its system, and if the resident were to contact a member of staff outside of the housing team, they would be able to assign the enquiry to the appropriate member of staff. This would be monitored, to ensure that the resident received a response.
9. During a telephone conversation on 29 July 2020, the resident had advised that she was seeking compensation in respect of the poor service she had received. If the resident were to advise what amount she believed was appropriate, it could consider this further. If the resident was unhappy with the response, she could escalate the matter further.
10. It hoped the resident was happy with the response; however, if she remained dissatisfied, she could escalate her complaint to stage two. It wished to advise the resident that there was a delay in arranging for stage two complaints due to the then current Covid-19 restrictions. However, the resident did have the option of having her complain reviewed by a named member of staff if she preferred not to wait.
On 17 August, the landlord wrote to the resident confirm a conversation that had taken place between her and the Housing Manager. It said:
1. It wished to confirm that all four parking spaces that surrounded the resident’s property would be for her sole use, including those visiting the property.
2. It would be arranging for the spaces to be marked with the property number in white paint.
3. It would not erect any signage stating that the area is “private” or that others should “keep off”, as this was not a practise that it had ever used.
4. It would not be able to take action if someone turned in the resident’s “area”, as it did not have the powers to stop anyone from using the drive as a turning circle – or to park while a parcel was being delivered.
5. If any of the resident’s neighbours were to use the area for turning or parking, then it would take proportionate action, as they had been advised that this area was for the resident’s sole use. It would be recognised as “deliberate harassment”, and it would continue to support the resident with it.
6. It was pleased to advise that the resident’s request for CCTV had been approved; however, it wished to remind the resident that she was “wholly responsible” for any data that was recorded; and it would not take any responsibility if a data breach were to occur. Further information was provided about managing and storing the recorded information.
The evidence provided to this Service shows that towards the end of August, the resident was offered £950 for the distress and inconvenience that she was caused as a result of poor service that had been provided. It is not clear how the offer was communicated; however, it is noted from other correspondence that it was to reflect the disruption caused by changes to the resident’s neighbourhood officer, and how her complaints were handled as a result. The payment was processed on or around 27 August, and the complaint was closed accordingly.
A further complaint was raised by the resident in early September 2020. Within her correspondence, the resident expressed concern that her neighbours were continuing to use the area outside of the property deliberately. She said that something needed to be done in terms of signage, and that her Neighbourhood Officer was ignoring her.
The landlord issued a response on 10 September 2020. Within this, it said that it had previously offered to paint the spaces outside the property, but the resident did not want this. It had written to all residents to confirm the parking arrangements; however, it could not prevent “people reasonably turning around at the end of the road”. It had engaged with the police who had advised that it did not feel signage should be installed. It had also reviewed the resident’s most recent interaction with landlord staff and could not find anything inappropriate. It therefore would not be upholding the complaint.
The resident responded on the same day to express dissatisfaction with the landlord’s response. She said that she felt unsupported and wanted to know what was happening in relation to the signs or “white painted elongated H markers”. Correspondence continued, and the landlord confirmed it could outline the parking spaces with the resident’s house number, but would not paint white H’s. It added that signage would not be provided either. The resident subsequently raised further concerns about the landlord’s handling of the situation and it was agreed that the matter would be referred to the appeals panel for further consideration at stage two of the landlord’s complaints procedure.
The panel convened on 7 October, and a written response was sent to the resident on 9 October. It said:
1. The issue of representation by neighbourhood officers had already been resolved. This was demonstrated by the complaint panel papers, and the resident had confirmed that this was the case.
2. The outstanding issue related to the resident’s request for signage to be put to alert any driver not to access the assigned area assigned to the resident’s property, for turning or parking.
3. The landlord had explained its rationale as to why it did not support signage. Its experience over the years had found that it did not resolve underlying issues, was not enforceable, could inflame ongoing disputes or underlying tensions and could create a negative look and feel to the area.
4. The landlord had advised that it preferred local engagement and a proactive approach to resolution of this type of issue when it occurred.
5. It noted how the resident had been affected by ASB in the past, and that she was vulnerable and remained in fear of ASB.
6. While it acknowledged that signage may not work, it found that placing “appropriate signage” was a proportionate measure, which would provide the resident with reassurance. The panel observed that any signage should be placed so that it was “easy to see for drivers as they approached the entrance to the area”. Other than that, the panel felt it would be better for the landlord to decide on the detail.
Following the outcome of the panel review, signage was subsequently erected in the area outside the property advising that no turning or parking was permitted. The date that the signage was put up is not clear from the evidence on file. Within the panel’s correspondence, the resident was also informed that she could refer her complaint to this Service if she remained dissatisfied with the response she had received.

2021 complaint

Towards the end of December 2020, the resident began to report instances of ASB to the landlord again – these related mainly to dogs barking. Over the Christmas period, the resident reported that her neighbours had been joining together in a “vexatious campaign of hate” aimed at her and her family.
On 21 January 2021, the resident contacted landlord staff. She said that the problems that were happening in July 2020, had started again. The resident explained that her neighbours were parking in such a way so as to restrict the access road, and that this was deliberate. Of particular concern, was that this was being done around the time that her grocery shop was being delivered. The resident explained that she has always booked the same slot, and therefore knew that the access road was being blocked on purpose. The resident asked the landlord to confirm what it would do to stop the behaviour. She also queried how many vehicles were permitted at each property. The resident said that her agreement allowed for two vehicles maximum, and no commercial vehicles, but that her neighbours often had in excess of this – and commercial vehicles. The resident sent a further email on the same day with photographs which she said proved the deliberate behaviour by her neighbours.
The landlord’s Local Delivery Team Leader (Team Leader) replied on the same day following a telephone conversation. She said that the photographs provided were not sufficient to prove that the neighbours were acting with malicious intent, or to annoy the resident. She added that the resident was still able to receive her grocery shopping, and as such access to the property remained available. As discussed, it would be sensible for the resident to consider booking a different grocery delivery slot. If the neighbour had been acting intentionally, he would not be able to do so as he would not have certainty of its arrival from week to week. As access was still available, it could not take action regarding this incident.
The resident replied the same day and explained the difficulties she would encounter in changing her shopping delivery day. However, she said that she would try her best to change the delivery slots.
At the beginning of February, the resident sent an email together with video footage of a dog running around the Close. The resident asked if something could be done to remind the dog’s owners that it should not be allowed to run loose. The Team Leader responded on the same day and advised that the last incident she had witness was in August 2020 – where the dog ran passed the garden into the woods. She said that judging by the speed the dog was running at, it appeared to be doing to the same thing. The Team Leader explained that as it only have evidence of two incidents within a six month period, it would not be proportionate to send a letter to the neighbour. It was added that if the resident were to provide evidence of the dog frequently running loose, for a prolonged period of time, then it would be happy to write to the neighbour.
On 19 February 2021, the resident contacted the landlord to raise concern. She said:
1. Her neighbours, and their visitors, had started to use the area outside her property as a “turnaround” again. This was despite warnings from the landlord that the area should not be used.
2. Her neighbours had been breaking lockdown rules, and members of different households had been mixing.
3. The behaviour was ASB, and it her neighbours were therefore acting in breach of their own tenancy agreement.
4. She had attached videos of different cars using the area as a “turnaround”.
The landlord responded on 22 February to advise that it would review the evidence and respond in full later in the week. Following this, a telephone conversation took place between the resident and one of the landlord’s case officers. During the call, the possibility of erecting a small fence to prevent others from crossing over into the area outside the resident’s property was discussed. The resident also advised that she would be prepared to meet the costs of the work, if the landlord were to provide the necessary permission. The case officer advised that she would raise this with the relevant members of staff.
Following further correspondence, the Team Leader wrote to the resident on 25 February to address the various messages and reports that had been received. She said:
1. Turning in the drive – this was not being evidenced daily, those doing it were not gesturing towards the camera or remaining parked near the resident’s vehicle. They did not appear to be doing anything other than turning their car. No action would be taken regarding this.
2. The dog – this happened occasionally. During the last 12 months it had been advised of it happening on three occasions – one had been witnessed by the Team Leader. This was not a dog being left to “run loose”, rather it had managed to get out of the house on a few occasions. No action would be taken.
3. The fencing – a picket fence would not stop the dog from getting into the woods – and he would presumably jump the fence. I had not received any reports in the last six months, other than the lady retrieving the dog. It was therefore uncertain what fencing would achieve.
The Team Leader explained that if the resident wished to install fencing, she would need to apply in writing. The application should be accompanied by a detailed plan of where she wished to erect the fencing. Information was also provided about the process that would need to be followed when seeking permission. The Team Leader explained that it would also be closing the ASB case on 15 March 2021. A new case could be opened in the future if the resident provided evidence that warranted such action.
On 5 March, the resident’s community mental health nurse (CMHN) wrote to the landlord. Within his letter, he said:
1. He had been in discussion with the resident and was concerned about “her mood and the stress” that she was experiencing.
2. The resident was worried about the “continued harassment” that she was experiencing from her neighbours, and felt unable to leave the house. He added that she kept the blinds drawn, and felt unable to sit in her garden due to her neighbours shouting abuse at her over the fence.
3. The resident had a number of physical health issues, and limited mobility. Her son was her primary carer, and she was suffering from symptoms of Long Covid after contracting it in 2020.
4. He understood that evidence that had been provided by the resident was being collated. However, he was concerned that unless action was taken, the resident’s mental health may continue to deteriorate further.
The landlord issued a stage one response to the resident’s complaint on 10 March 2021. The information provided to this Service does not suggest that the response was labelled as a stage one response; however, within the correspondence, the landlord did mention that it was a stage one complaint, that had not been upheld. With regards to the ASB, the landlord said:
1. The resident had provided evidence of a dog fouling in the front garden, and this would be followed up with the tenant. The landlord advised that its powers as a landlord were somewhat limited – and provided an explanation as to why. However, it said that it would keep the resident posted on the issue.
2. In relation to fencing, it was hoping to have a decision in a “few days”. However, it wished to point out that it was not proposing to enclose the parking areas at the front of the property as not only would this increase the cost, but it would hinder access to and from the property by visitors such as the postal service or delivery drivers.
3. The resident had asked for apologies to be provided by two named members of staff. It was of the opinion that both individuals had acted professionally and that no apology was warranted.
4. The resident had also asked for one particular neighbour to be investigated. The landlord had considered the evidence against this individual; however, there was insufficient evidence and it would not be taking action.
The landlord acknowledged that the resident would be unhappy with the response, and informed her that she could request the escalation of her complaint to stage two of its procedure. It was also explained that the resident could seek guidance from this Service at any point.
Further correspondence was exchanged and the victim subsequently applied for a Community Trigger Review, as she was unhappy with how the landlord had been responding to her reports and concerns. The review meeting took place on 7 April, and the decision was communicated to the resident soon after. The decision reached by the Community Trigger Review panel was that the appropriate action had been taken by the relevant agencies with regards to the ASB. However, it was acknowledged that the ASB was having a significant impact on the resident, and that the agencies involved should therefore use their risk assessment processes to see what additional practical and emotional support should be provided.
After the Community Trigger review decision was shared, the resident continued to express dissatisfaction with how the landlord was dealing with her concerns and reports of ASB, and contacted this Service. We informed her that it would be necessary for the landlord’s internal complaints procedure to be exhausted before we could consider the matter. As such, the issue was referred back to the landlord so that a stage two panel hearing could be arranged. The panel convened at the beginning of June.
Following the hearing, the landlord wrote to the resident on 15 June. Within its correspondence, the landlord summarised who attended the panel, what was considered by the panel and the resident’s outstanding concerns. It said:
1. The panel noted that there was reference within the hearing pack to video clips from the resident’s CCTV system. The panel did not have access to these, and it was noted that the resident had asked for these not to be shared. As such, the panel could not independently reach a conclusions as to whether any of the video clips showed behaviour that would be considered anti-social.
2. The panel also noted that there had been a recent ASB review under the Norfolk Community Trigger Protocol. To facilitate his, the complaint was suspended while the review could take place.

ASB

The panel recognised that the behaviour of the resident’s neighbours had had a cumulative impact on her, and that this was potentially exacerbated by the resident’s diagnosed medical condition and her disability.
The panel felt that due possibly to how the incidents had affected the resident, she had reached judgements with a bias that people in her local community were against her. She had therefore possibly concluded that the behaviour of her neighbours and others was motivated by their “negativity and possibly dislike”.
It had also heard from two named members of staff, who explained their attempts at resolving each of the issued that the resident had raised.
The panel had gained the strong impression that the resident’s response to each incident had been “sometimes overwhelming” with a “significant number of messages, emails and often very detailed allegations about” the neighbours. It understood that this was the resident’s instinctive way of asking for assistance, but felt that on this occasion, it had “a negative effect” on the landlord’s ability to assist.
The Community Trigger conference took place on 25 February (it is noted that the meeting took place in April 2021, and that this was a typographical error), and the findings had been made available to the panel. The findings stated – “key agencies may wish to consider the possibility of hidden needs or risks to (the resident’s) well-being which may require a response. I have no reason to doubt that (the resident’s”) mental well-being has been affected by the actions of her neighbours, and their associates”. It was also added that the resident presented as “being extremely vulnerable” and that she would be “less resilient to any ongoing ASB”.
The panel agreed with the conclusion and noted the police’s assertion that the only ongoing unresolved issue was to do with dogs being allowed to stray on to the grass outside the property, and to foul there.
The police were leading on the option for a Community Protection Warning, which would be followed up if there was sufficient evidence, by a Community Protection Notice. The alleged perpetrators were living through a period during which they were being asked to show compliance before this was implemented.
An Acceptable Behaviour Contract had also been mentioned as a “proportionate option” if new substantiated instances happened, and the resident was negatively affected in future.

Boundaries

The panel understood that the resident wished to have clarity on the boundaries of the property. The resident had advised that in 2006, a member of staff had informed her and her late husband that the whole area in front of the property was included within the boundary, by drawing on a site layout plan.
The site plan did not show the site as built, meaning that it does not show that any tenant living at her neighbour’s property would need to access the communal road adjacent to the resident’s car parking spaces to either reverse in or our of their own car parking space. It understood that this was not currently an issue as the neighbours did not have a car – however, their space would be available to any of their visitors.
They could not question the member of staff who provided the advice in 2006, as she had left several years earlier. However, it was acknowledged that the landlord had agreed in past correspondence that the four car parking spaces were for the resident’s use. These would therefore remain allocated to the property as long as the resident remained there.
It therefore wished to clarify that the extent of the resident’s home included her bungalow and gardens, including the grassed area in front of her home, together with an exclusive right to park in the four spaces directly in front of the property. This did not include the area of the communal road that would be needed by the driver of any vehicle parked in the single space allocated to the neighbouring property.

Lack of fencing

The panel had recognised that landlord staff had indicated that fencing to the front garden and car parking areas could be a possibility. However, they had also informed the resident that the final decision was not for them to take – and fell to the Asset Team. It wanted to clarify this, as it believed that the resident had regarded the discussions with staff as a promise that new fencing would be delivered.
It was considered that parts of the resident’s complaints with regards to landlord staff appeared to have been exacerbated by the delay in reaching a conclusion on fencing.
The panel was happy to support the resident’s request for an appropriate fence, subject to any necessity of consent, if required from the local authorities, of the grassed areas in front of the property. It was unable to support any fencing of the car parking spaces and communal roads as it could not see how this could be implemented without causing problems for the current, or any, future tenants of the neighbouring property.
Any fencing of the green would need to reflect the village location and be appropriate to the setting. The panel suggested a low level picket fencing, with an appropriate gate to allow the resident easy access. However, it would ask that the Asset Team discuss the specification with the resident once it had been established whether any restrictions applied.

The panel also considered particular concerns that the resident had raised about the two named members of staff. It advised that it had reviewed evidence including emails that had been sent by the resident and those members of staff. The panel also considered the resident’s testimony and did not agree that staff had either deliberately ignored evidence, or been antagonistic towards her. It therefore did not uphold the complaint that the resident had made about staff members.
The panel also commented on the landlord’s use of the Unreasonable Complaints policy. It advised that this had not been formally considered, but noted that the resident had recently been subjected to it. The panel quoted the policy within its letter and advised that it was satisfied that there were grounds for the policy to be applied; however, it felt that the situation had been mishandled. This was attributed to the fact that the policy was new, and it was the first time that it had been implemented. The panel explained that it would be recommending that staff review the process to see whether it could be improved.
The panel noted the resident’s wish to move to another property, and that she did not feel safe. During the meeting, the resident’s legal advisor suggested that it consider an assisted move from the resident. It said that while it was an option, it was not an easy one as it did not own a major number of self-contained disabled bungalows. The panel concluded that while an assisted move might be a sensible course of action, the resident could be waiting for a considerable time. It therefore wished for the resident to consider entering into mediation with her neighbours – shuttle mediation could be used so that they did not have to be in the same room. Opting for mediation would also depend on whether her neighbours were willing to participate, but landlord staff were happy to discuss this with them if the resident was willing to partake.
It acknowledged that the resident would be disappointed with some of its conclusions, and it was not able to uphold some of her complaints. However, it hoped that the letter demonstrated that it had carefully considered all of the evidence, including the oral testimony that was provided during the hearing. It added that if the resident remained dissatisfied, she could refer her complaint to this Service for further consideration.
The resident wrote to this Service on 1 July 2021. She said that the landlord had completed its stage two panel hearing in June; however, she remained dissatisfied and wished to refer her concerns to us for further consideration. In summary, she said:
1. The landlord was not following the advice that had been given by the panel. This was with regards to her neighbour’s dog fouling in her front garden.
2. She was being victim blamed, and that the perpetrators of the ASB were not being held accountable for their actions.
3. The landlord was failing to take action against her neighbours when presented with evidence of them using the area outside of her property.
Through further discussion with this Service towards the end of 2021, the resident advised that she was dissatisfied with the landlord’s handling of the ASB, and that she felt that insufficient steps had been taken to prevent further incidents. The resident also advised that she felt there was some “uncertainty” about the property boundaries, and that fencing needed to be installed around the front of the property.

Landlord obligations, policies and procedures

The landlord’s ASB policy defines “ASB” as – “day-to-day incidents of crime, nuisance and disorder, which impact, negatively on the life quality of those individuals surrounding and experiencing the behaviour”.
The policy states that it operates a victim-focused approach aimed at ensuring that victims of ASB are supported. It adds that it aims to be proactive to prevent ASB incidents occurring.
The policy details the range of methods that may be utilised to tackle ASB – these are categorised as either “early intervention” or “enforcement”. The early intervention methods include, verbal and written warnings, Acceptable Behaviour Contracts, tenancy support, and mediation. Enforcement action includes injunction, criminal behaviour orders, closure orders and possession proceedings. The policy explains that enforcement action may be taken to prevent the escalation of problems, and to reduce the risk of harm to its residents.
The landlord’s complaints policy defines a complaint as “an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by (the landlord) or those acting on our behalf, affecting an individual resident or group of residents”.
The complaints procedure comprises of two stages. Prior to a complaint being raised, however, the landlord will try to see whether matters can be resolved swiftly. At stage one, the complaint is allocated to a member of the Senior Management Team. If the resident is unhappy with what has been proposed through “swift resolution”, or do not wish to use the process, then a formal complaint will be opened. If a resident is unhappy with the response at stage one, the complaint will be escalated to stage two.
At stage two, a panel made up of the Chief Executive plus two board members meets to consider the complaint. The resident will be given the opportunity to provide their input and can join the meeting if they wish. The panel will provide the landlord’s final response, and their decision within five working days of the hearing.

Assessment and findings

When investigating complaints about ASB, it is not the role of the Ombudsman to investigate the incident(s) or establish whether the behaviour took place as alleged. Rather, it is to look at the evidence which is available and determine whether the landlord handled the situation in line with its policies and procedures.

2020 complaint

When the landlord responded to the resident’s complaint in 2020, it identified that it had failed to appropriately investigate the resident’s reports of ASB between 2017 and 2019. While these have not been investigated by this Service, was appropriate for the landlord to acknowledge these feelings and to try to put things right.
As detailed above, the landlord informed the resident that it would change her neighbourhood officer, and that a separate neighbourhood officer would be appointed to deal with any counter-allegations. In addition, it appointed a named housing manager to oversee the resident’s complaint and to improve the service she was provided with. Given the failings that the landlord had identified through its own investigation, this was an appropriate way of ensuring that it improved the service that was provided to the resident.
It is also acknowledged that the resident was offered £950 compensation in August 2020 for the distress and inconvenience that was caused by the poor service she had received. This was accepted by the resident, and not considered further by the landlord when subsequent complaints were raised by the resident. As the offer relates to a period which has not been investigated by this Service, we have not assessed it. However, it was reasonable for the landlord to offer the resident a sum aimed at compensating her for the inconvenience she had endured as a result of the failings that it identified.
In August 2020, the landlord also provided written confirmation to the resident and her neighbours about the parking bays to the front of the property and that they were for the resident’s – and her visitor’s – use only. It is noted that during this time, the resident had made further reports of people turning in the area, and that dogs had also been fouling there. The evidence shows that the landlord contacted the other residents to inform them that the bays to the front of the resident’s property should not be used, and also issued a warning in relation to the dogs fouling. This was appropriate and proportionate in the circumstances.
The landlord also proposed methods aimed at ensuring that other residents, and their visitors, were reminded of this. This included painting the property’s number within the bays. The evidence on file suggests that the resident declined this. It is not clear why the resident declined the landlord’s offer. However, it was a reasonable suggestion in the circumstances. Within this correspondence, the landlord also explained that it could not “police” the situation and that if people were turning in the area, there was no enforcement action it could take. This was not unreasonable given how resource-intensive such a task would be. However, as detailed above, it explained that if any of the resident’s neighbours were to use the area for turning or parking, then it would take proportionate action, as they had been advised that this area was for the resident’s sole use. It would be recognised as “deliberate harassment”, and it would continue to support the resident with it.
The resident subsequently complained a few weeks after the initial complaint was closed, and following a series of responses, it was agreed that the matter would be referred for a stage two panel review. While the landlord’s complaints policy does detail that it operates a two-stage complaints procedure, with the second stage being a panel review, the evidence provided to this Service does not demonstrate that the resident’s complaint was handled appropriately. It is not clear from the evidence provided to this Service why the landlord departed from its policy, and escalated the matter straight to the stage two panel review. While this was not inappropriate in itself, it would have been reasonable for the landlord to clearly explain its actions and why a stage one response had not been provided on that occasion. If it was the case that the complaint from August 2020 was re-opened and escalated, then it would have been reasonable to explain this. This was a failing in the landlord’s complaint handling.
The Ombudsman has not seen any evidence which suggests that the landlord’s handling of the complaint was of detriment to the resident. However, it has been noted from the minutes of the panel meeting that there was some confusion about what elements of the complaint were to be considered – and whether issues from the stage one response which was issued 29 July 2020 were to be discussed further. This reasonably could have been avoided if the landlord had adhered to its policy – or if staff were clear about why the matter had been referred to the panel in October 2020.
When the matter was considered at Panel Review stage, it was recommended that the landlord consider erecting some form of signage. This had been requested by the resident during the course of the complaint. The panel noted that this was not the landlord’s usual practice; however, it was suggested as means to try to resolve the problems that the resident was experiencing. The landlord subsequently agreed to put up signage informing other residents, and members of the public, that the area to the front of the resident’s property could not be used for parking or turning. There was no obligation on the landlord to agree to signage – under the tenancy agreement or otherwise. However, it was reasonable for the landlord to take onboard the panel’s recommendation.
It is noted that the signage was ineffective in preventing the nuisance that the resident was experiencing. It is also noted that the landlord had previously advised that signage was unlikely to be effective in resolving the problem – which is why it had been declined prior to the panel review. Nevertheless, once the landlord became aware that the ASB was persisting, it asked the resident for further evidence and details of incidents so that it could consider what action to take next. This was appropriate and proportionate action in the circumstances.

2021 complaint

In December 2020, the landlord received contact from the police as the resident had been in touch to raise concern about incidents around the property – including dogs barking and using the green area to the right of the property to foul. The landlord engaged in discussion with the police about the matter, and were subsequently informed that no action would be taken. The police advised that it was a “grey area” as to whether the actions of the other residents constituted harassment or not. However, there was “certainly not enough for a prosecution”. It was appropriate for the landlord to make enquiries with the police and to ascertain whether it considered that it was necessary to commence any criminal prosecution – or conversely, if it considered that there was an area that the landlord had not explored.
The evidence shows that the landlord continued to liaise with the resident about her concerns through January and February 2021. Ad detailed above, when further reports were made, the landlord responded and explained how the evidence had been considered, and why it was not possible for it to take any further action. With regards to people turning in the drive, the landlord explained that the instances which the resident had reported were not happening with any frequency, and there was no evidence to suggest that any of the neighbours were acting in a deliberate manner. For that reason, it would not be taking further action.
The resident expressed frustration with this, and advised that it was at odds with the assurance that the landlord had provided in August 2020 about taking action. While the resident’s frustration and disappointment regarding this are acknowledged, the landlord had explained that there was no evidence to show that the resident’s neighbours, and their visitors, were turning in the drive daily – or with any frequency. In addition, the evidence did not show that they were gesturing towards the resident’s CCTV camera, or parking near the resident’s vehicle to intimidate her. In the circumstances, it may have been helpful for the landlord to provide some further explanation surrounding its decision. For example, clarification could reasonably have been provided to explain what “deliberate” use of the area would be regarded as, and what level of frequency it would need to be occurring with for it consider taking any further action.
It is also noted that the landlord had consulted its solicitors at the beginning of 2021, and had explained to the resident that there was insufficient evidence to take legal action against any of her neighbours. Once again, it is acknowledged that the resident disagrees with the conclusion reached by both the landlord and its solicitors – and that she has concerns that the solicitors were provided with limited evidence too. However, it was appropriate for the landlord to seek legal advice regarding the situation. Given the severity of enforcement action, and that the process involves applying to court, it was reasonable for the landlord to discuss the matter with its solicitor and to establish whether any of the evidence it had been provided with by the resident would be sufficient to build a case against any of the individuals within the Close.
However, in the circumstances, it would have been reasonable for the landlord to have considered entering into further discussion around this with the resident. For example, explaining the type of behaviour that would warrant enforcement action being taken; and why it had to ensure that any action was proportionate, and based on evidence that had been obtained. This could have helped to manage the resident’s expectations somewhat. That the landlord did not provide such explanation was not a failing, but rather was a shortcoming in the circumstances.
The issue of fencing was also discussed between landlord staff and the resident during this time. It is acknowledged that the resident’s considers that this may provide an appropriate solution to the problems she has been experiencing. While the Ombudsman does not seek to dispute this, there is no obligation on the landlord to erect fencing at the request of a resident under the tenancy agreement, or otherwise. The landlord informed the resident that it would make enquiries surrounding this; however, no commitment to installing fencing across the front of the property was made. When the matter was considered by the review panel, it explained the process that would need to be followed and what action the resident should take if this was something she wished to pursue. This was an appropriate response.
The landlord’s consideration of the resident’s concerns and complaint was suspended while the Community Trigger review took place. While the outcome of the review is not something that can be assessed by this Service, it was concluded that the landlord had acted appropriately overall in relation to the ASB. A recommendation was made to see what other practical and emotional support could be offered to the resident given how greatly the situation was affecting her.
After the Community Trigger review was shared, the matter was referred back to the landlord and its stage two panel. When the panel wrote to the resident it discussed the actions that the police were proposing in relation to dogs fouling, and mentioned the possibility of shuttle mediation with her neighbours. This was a reasonable suggestion in the circumstances. It is not clear from the evidence provided to this Service why this was not proposed by the landlord earlier in the process, given that it is explicitly listed as a potential method of tackling ASB within the landlord’s ASB policy.
While the reports of ASB had been infrequent in nature, mediation could have been an effective way for all parties involved to try to understand the issues and for the resident’s neighbours to understand how turning in the area in front of the property was affecting her. It is acknowledged that there was no guarantee that the resident or her neighbours would have agreed to participate in the process, or that it may have been successful. However, the ASB was continuing despite previous efforts and the use of verbal and written warnings. Mediation was a further early intervention option, and it would have been reasonable for the landlord to have considered exploring this earlier in the process – potentially as early as December 2020 once it began apparent that the signage was not working. That it did not prior to the panel review was a failing in its handling of the ASB. It would be reasonable for the landlord to consider exploring this further with the resident and her neighbours now. In the event that the resident or her neighbours decline mediation, the landlord should consider what other action may be appropriate and proportionate in the circumstances. This would be dependent on any evidence submitted by the resident, and whether this could be corroborated.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was:
1. Service failure in the landlord’s handling of the resident’s reports of ASB from January 2020.
2. Service failure in the landlord’s complaint handling.

Reasons

From the evidence provided to this Service, the landlord’s response to the resident’s reports was initially appropriate. However, by December 2020 it became apparent that its previous warnings to the resident’s neighbours were not working, and that she was continuing to be affected by the ASB. At this time, it would have been reasonable for the landlord to have considered exploring another early intervention method listed in its policy – such as mediation. While there is no guarantee that all parties would have engaged in the process, or that it would have been successful, it would have been reasonable for the landlord to have considered it prior to June 2021.
The landlord’s complaint handling overall was appropriate. However, in September 2020 the landlord referred the resident’s complaint straight to stage two of its process without issuing a stage one response. While this was not inappropriate in itself, it was a departure from the landlord’s policy. In the circumstances, it would have been reasonable for the landlord to have explained that the matter was being referred straight for panel review, together with the reasons why.

Orders

Within four weeks of the date of this decision, the landlord should:
1. Apologise to the resident for the failings identified by this investigation.
2. Pay the resident £250 for the distress and inconvenience caused by its failure to follow its ASB policy and consider what other early intervention methods – such as mediation – could be used to tackle the behaviour that had been complained of.
3. Contact the resident and her neighbours to discuss the possibility of shuttle mediation again.
4. Issue a reminder to its staff about the procedure set out in its Complaint policy. Staff should also be informed that if they are going to depart from the procedure at any time, a record should be made, and the decision – together with the reasons why – should be communicated to the resident.