Southern Housing (202305692)

REPORT

COMPLAINT 202305692

Southern Housing

29 November 2024

Our approach

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

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

The complaint

The complaint is about the landlord’s handling of reports of antisocial behaviour (ASB) from a neighbour.
The Ombudsman has also considered the landlord’s record keeping and information management.

Background

The resident is an assured tenant. The property is a flat, within a multi-occupancy building.
The landlord’s records indicate that the resident is disabled. Communications between the resident and the landlord suggest that the resident also received support with his mental health and wellbeing from his doctors.
The alleged perpetrator and the subject of the resident’s reports about ASB, is the resident’s neighbour. The neighbour lives in the flat directly below the resident.
It is understood that there had been difficulties between the resident and the neighbour for several years prior to the formal complaint being raised. The resident said the neighbour was intermittently banging at antisocial hours, was using cannabis, and had made homophobic comments. The resident also suspected the neighbour was using an “electronic harassment direct energy weapon”, which was making the resident feel unwell. The Ombudsman understands this to be a weapon that damages its target with highly focused energy, such as lasers, microwaves, particle beams, and sound beams.
It is understood that the landlord investigated the resident’s reports about the neighbour several times between 2020 and early 2023. But determined that there was a lack of evidence to support any formal action being taken against the neighbour. Over this time, the landlord:
1. Provided the resident with an action plan setting out the activities and support that it would provide.
2. Provided the resident with ASB incident diaries. However, these were not returned.
3. Offered the noise app on several occasions, but the resident declined the use of this, as he felt the noise was too infrequent and would be difficult to capture.
4. Was unable to evidence the noise reported using a professional witness.
5. Visited and wrote to other neighbours in the block to see if anyone could verify the noise nuisance being reported or use of cannabis. However, no witnesses were identified. The landlord itself did not identify any cannabis smells when it attended the block.
6. Inspected the neighbour’s property for an electronic harassment direct energy weapon device or equipment, but nothing was found. The neighbour denied causing any nuisance. The neighbour refuted the resident’s allegation that they smoked cannabis.
7. Offered mediation. It is understood that the resident was keen to explore this. However, mediation was not progressed as the neighbour was reluctant to participate.
8. Worked in partnership with the police and the local authority’s noise team. Neither the police nor the local authority identified any statutory noise nuisance occurring. The police were unable to substantiate the resident’s allegation that the neighbour smoked cannabis or the use of an electronic harassment direct energy weapon device.
9. Offered the resident support with community and volunteering opportunities, upon advice from the police.
10. Made several referrals seeking support for the resident with his mental health and wellbeing.
11. Made a referral to a third-party advocacy service to support the resident.
12. Considered the resident for a priority move, although this was declined by the landlord’s priority move panel due to the lack of evidence concerning ASB.
The resident contacted the Ombudsman on 29 May 2023, stating that he had made several complaints about his neighbour’s behaviour to the landlord but the landlord had taken no action. The resident said the neighbour was waking him up every night with banging. He said this was stopping him from sleeping and was impacting his mental health and wellbeing. The Ombudsman asked the landlord to work with the resident to resolve his complaint.
The landlord responded by logging a new stage 1 complaint on 11 June 2023. It committed to issuing the stage 1 response within 10 working days. Finding that it needed more time to investigate, the landlord extended its expected response timescale by a further 10 working days.
The landlord issued the stage 1 response on 30 June 2023. The landlord recognised that there had been historical reports about the neighbour’s behaviour from the resident. It clarified that it could only investigate its handling of the resident’s reports about the neighbour, made within the last 12 months. The landlord set out the actions that it had taken since November 2022 and the outcome of its investigations. It detailed the actions that both parties needed to take, to bring about a resolution to the substantive issue.
The landlord sent a stage 2 acknowledgement on 13 July 2023, after the resident told the Ombudsman that he was dissatisfied with the landlord’s stage 1 response. The resident said the landlord should issue a warning letter to the neighbour and evict them if the ASB did not stop. The landlord said that it would issue a full response by 14 August 2023. But later extended this deadline by a further 10 working days, after finding it needed more time to investigate.
The landlord issued the stage 2 response on 29 August 2023. It said it was sorry to hear the resident was experiencing issues with ASB. It set out the action that it had taken in response to the resident’s reports about the neighbour. It reminded the resident of the actions it had asked the resident take, to support its investigations. It said it remained committed to working with and supporting the resident. It offered £100 compensation, in recognition of complaint handling delays at stage 2, and a discretionary sum for “raising concerns”.
The resident escalated the complaint to the Ombudsman on 4 September 2023. The resident said he was dissatisfied because the landlord had said the resident’s allegations could not be substantiated. The resident told the Ombudsman on 27 November 2024, that the landlord should evict the neighbour.

Assessment and findings

Scope of the investigation

It is outside the Ombudsman’s remit to determine whether the resident was subjected to ASB or nuisance. However, the Ombudsman will consider the appropriateness and adequacy of the actions taken by the landlord to investigate and respond to the resident’s reports of ASB.
The resident had reported difficulties with his neighbour for several years prior to the formal complaint being raised. However, paragraph 42.c of the Housing Ombudsman’s Scheme states that “the Ombudsman may not consider 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 12 months of the matters arising”.
Therefore, this investigation will assess the landlord’s actions between 29 May 2022 and 29 August 2023. This being 12 months prior to the formal complaint being raised, through to when the landlord’s complaint process was exhausted. Events that occurred after this date are beyond the scope of this investigation. This is because the Ombudsman can only consider matters that have exhausted a landlord’s complaints procedure. The resident may wish to consider raising a new complaint with the landlord if he remains dissatisfied with the landlord’s actions after this date.

The landlord’s obligations, procedures, and policies

ASB includes a range of nuisance and criminal behaviours which cause distress to others. Whether someone’s actions can be classed as ASB relies heavily on the impact it has on other people. The type and intensity of the behaviour also matters. Examples of ASB can include noisy behaviour. But some behaviour, even though it may cause a nuisance to individuals, may not be regarded as ASB. For example, infrequent and occasional noise or disturbances.
Tenancy agreements set out a landlord’s expectations related to the behaviour of their tenants. It is usual for landlords to include conditions related to nuisance and ASB. Landlords can take action against tenants who do not comply with their tenancy conditions. Landlords have the right to seek to evict a tenant in serious cases. But a landlord cannot be compelled to take action against a tenant for breach of tenancy. The landlord has not provided the Ombudsman with a copy of resident’s tenancy agreement or its standard tenancy conditions.
The landlord’s ASB procedure set out the landlord’s approach to investigating reports of ASB. In accordance with this procedure, the landlord will:
1. Agree initial actions following a report about ASB. The landlord will review these actions throughout the case, so the complainant has a “live action plan”.
2. Use a variety of mechanisms to evidence the ASB, which will be used to support further action, as appropriate. This includes noise monitoring, diary sheets, site visits, and professional witnesses.
3. Inform a complainant if it is unable to take further action, where there is no evidence of ASB, or evidence of ASB is unclear. But it will continue to encourage the complainant to make reports of further ASB.
4. Close the case when if it does not have enough evidence to take further action and there are no ongoing incidents. It will also close the case where it can no longer actively make an impact on the situation, using action that is appropriate and proportionate.

The landlord’s handling of reports of antisocial behaviour from a neighbour

The resident made regular reports to landlord between 29 May 2022 and 29 August 2023, about intermittent and occasional banging by the neighbour at antisocial hours. The resident reported that this was disturbing his sleep and was a nuisance. The resident also expressed concern at times, about the smell of cannabis coming from the neighbour’s property.
It is understood that the resident and the landlord communicated at the end of May 2022, about the situation with the neighbour. It was established at that time, that the noise nuisance was infrequent or consisted of a one-off banging noise. The landlord considered that the noise by the neighbour was most likely general household noises that were not wilful or intentional, to disturb or cause upset to the resident. It is unclear if the resident accepted that position. But the Ombudsman notes it was several weeks before the resident made any new reports about the neighbour’s behaviour.
The resident raised new reports about the neighbour banging in July 2022. The landlord asked the resident to use its noise app to capture the noise, if the duration of the banging had changed. This would have been in line with the landlord’s ASB procedure. The Ombudsman has seen no evidence that the resident followed the landlord’s advice, which was unhelpful.
The resident emailed the landlord again in August 2022, explaining that the neighbour’s banging had been witnessed by a visitor. The resident suggested that the banging was linked to the neighbour’s homophobic prejudices and mentioned that the neighbour was still smoking cannabis. The resident told the landlord that he had reported his neighbour to the police, who had given him a hate crime reference number. The Ombudsman has been unable to verify what action the landlord took in response to the resident’s reports if any. As a minimum, the landlord ought to have asked the resident to provide the contact details of his witness, to help corroborate his reports.
It is understood from the stage 1 response, that the resident contacted the landlord again in November 2022, about noise from the neighbour. The landlord said it responded by sending the resident an ASB incident diary and information explaining how to use its noise app. While this is not in dispute, the Ombudsman has been unable to verify this from the available evidence. This suggests that the landlord did not provide the Ombudsman with all of the information available to it, concerning the case. This is troubling.
The Ombudsman has seen no evidence that the resident returned any ASB incident diaries or submitted any recordings using the landlord’s noise app, immediately following this. This was unhelpful and continued to restrict the landlord’s ability to determine an appropriate course of action. However, the landlord ought to have been proactively monitoring the case. Had it been doing so, it might have noticed that the resident had not returned any evidence despite its repeated requests to do so. In the Ombudsman’s view, the landlord should have endeavoured to find out why this was and then acted accordingly thereafter. In the absence of any evidence to suggest otherwise, the case was left inactive for several months, which was inappropriate.
The resident contacted the landlord again on 18 May 2023, concerning noise nuisance from the neighbour. The landlord wrote to the resident on the same day asking the resident to be more specific about the nature of the noise nuisance, when it was happening, and who was responsible. It said it would consider appropriate next steps once this information had been received. It suggested that this might involve contacting partner agencies. This was in line with the landlord’s ASB policy. The landlord’s response shows a continued willingness to investigate the resident’s concerns, subject to further clarification concerning the nature of the noise.
The resident emailed the landlord repeatedly throughout June 2023, to report intermittent banging from the neighbour. The resident suggested again that the neighbour was prejudiced and was banging at antisocial hours to bully him. He expressed concern that the landlord was not doing anything to assist him. He explained that the stress of the situation was causing his blood pressure to rise. He said the landlord should take action against the neighbour for breach of contract. The Ombudsman has seen no evidence that the landlord responded to the resident’s emails or his concerns. This would have left the resident uncertain of the landlord’s intentions, which was unfair.
But the Ombudsman notes that the resident had still not submitted any noise app recordings or returned any completed ASB incident diaries, which was unhelpful. It is unclear why the resident was reluctant to complete any ASB incident diaries, given that he had completed similar diaries in the past. While the resident did disclose some information about the nature of the noise within his emails to the landlord, this was likely to have been of limited evidential value. This because the resident’s communications lacked the level of detail that might otherwise have been provided, had the resident presented his evidence in the landlord’s ASB incident diaries. This is likely to have made it more difficult for the landlord to determine whether the noise constituted ASB, which should be managed through its ASB procedure. Or whether the noise was general living noise, which would require a different course of action to manage.
The landlord set out its position within the stage 1 response on 30 June 2023, regarding its investigation. The landlord said that its ability to review or investigate the resident’s latest allegations about the neighbour had been limited. It explained this was because the resident had not returned any completed ASB incident diaries, had not used the noise app, had not provided any information concerning witness, and had not provided any other supporting evidence. It noted that neither the local authority noise team nor the police were taking further action at that time, after being unable to substantiate the resident’s allegations.
The landlord also set out a comprehensive action plan in the stage 1 response, detailing the action that both parties needed to take for the resident’s allegations about noise, cannabis smells, and homophobic behaviour to be investigated. But there was no evidence that the landlord involved the resident in the creation of this action plan before it was issued. This would have been good practice, given the success of the action plan depended on the full cooperation of the resident.
However, the Ombudsman was encouraged by some of the commitments given in the action plan. For example, the landlord said it would raise the resident’s concerns directly with the neighbour. It said it would liaise with the police, the local authority’s noise team, the resident’s doctors, and his advocates, to understand the support he was receiving and to obtain any evidence that the resident may have given them. But it was troubling that the Ombudsman could not verify from the available evidence, that it had followed through on those commitments. Either this did not happen or again there was an issue with the landlord’s record keeping.
The resident emailed the landlord on 1 July 2023, stating that he did not understand the landlord’s investigation. He suggested that the landlord ought to send a warning letter to the neighbour. The Ombudsman has seen no evidence that the landlord responded, which left the resident’s concerns unanswered. But the resident could not compel the landlord to take a particular course of action, unless the landlord believed that action to be reasonable and proportionate in the circumstances of the case.
The resident emailed the landlord again on 6 July 2023, expressing dissatisfaction with the landlord’s stage 1 response. The resident said he did not understand why he needed to fill in ASB incident diaries when he was emailing the landlord following incidents. He said the landlord ought to put a noise monitoring device in the property for a month because he was struggling to capture the neighbour banging on the noise app.
It is unclear if the landlord had use of a noise monitoring device. Such devices are often installed by the local authority’s noise team. But in the Ombudsman’s opinion, neither the landlord nor the local authority’s noise team were likely to have considered it appropriate to install a noise monitoring device in the property, unless there was some evidence to support that the noise was persistent and continued.
The resident sent multiple emails to the landlord between 7 July 2023 and 17 July 2023, reporting more banging from the neighbour. The resident told the landlord on 17 July 2023, that he was going to hurt himself as he “could not take it anymore”. This gives some insight into the impact the noise was having on the resident. The Ombudsman has been unable to determine from the evidence seen, if the landlord instigated its safeguarding procedure or carried out a risk assessment following this, which might have been expected.
However, given the evident impact on the resident, it was encouraging that the landlord wrote to the resident on the same day, committing to visit him at the property and offering to arrange some mediation. The landlord might have committed to an earlier appointment than 25 July 2023.
It is unclear if the landlord met the resident on 25 July 2023, from the available evidence. Either the landlord did not attend as it had committed, the resident did not provide access, or there was an issue with the landlord’s record keeping. The lack of clarity in the landlord’s records concerning this was inappropriate and restricted the Ombudsman’s ability to assess the reasonableness of the landlord’s actions.
The resident continued to report intermittent banging from the neighbour throughout July 2023. The resident sent the landlord screen shots of blood pressure readings, which the resident said had been taken during periods when the neighbour was banging. This suggests that the resident was trying to find ways to evidence the nuisance but he still failed to submit any ASB incident diaries or noise recordings.
The landlord wrote to the resident on 28 July 2023, thanking him for the blood pressure readings but said this in itself, was not evidence of noise nuisance. The landlord directed the resident to earlier communications, setting out the evidence that the resident had been asked to provide to support his allegations.
It commented that the local authority’s noise team had not received any noise recordings from him either. It encouraged the resident to submit any noise recordings he had taken and provide these, along with any completed ASB incident diaries, so it could investigate. The Ombudsman suggests that it served little merit in the landlord keep repeating that the resident needed to submit ASB incident diaries and noise recording, as it was evident the resident was either unwilling or unable to do so. If the landlord expected the resident to provide evidence in a particular format, it ought to have considered ways to support the resident with this.
The resident emailed the landlord on 5 August 2023. The resident said he was unhappy that the landlord had suggested he had not provided any evidence. He expressed concern about a lack of help from the landlord and requested an in-person meeting. He explained that he had not completed any ASB incident diaries, as he had provided the landlord with screen shots of his phone display showing the date and time that the neighbour was banging. This shows a lack of understanding by the resident about the quality of the evidence he was providing, despite the landlord’s previous efforts to explain this.
The landlord responded to the resident by email on 7 August 2023. The landlord accepted that the resident had shared some information in his emails about the noise. But explained that the resident had not provided any supporting evidence. It said this was making it difficult for it, the police, or the local authority’s noise team to investigate his reports.
The landlord encouraged the resident again, to submit any noise reports and return any completed ASB incident diaries. But it did not offer to have an in-person meeting with the resident as he had requested. In the Ombudsman’s opinion, this was a missed opportunity by the landlord to discuss the resident’s evidence, explore how it could support the resident, consider options for resolution, and build some trust.
The resident told the landlord on 17 August 2023, that the noise app did not work on his phone. From the available evidence, this was the first time the resident had suggested he could not physically use the app. The resident said that he had saved 110 records on his phone and on a portable recorder. He suggested that together with the screen shorts, this ought to be more than enough proof of the neighbour’s behaviour. The resident made 2 further noise reports between 18 August 2023 and 21 August 2023, by email. The resident asked the landlord if it was going to do anything about the neighbour and suggested that it should evict them. He said that he wanted there to be no noise between 11pm and 7am.
The landlord did not respond separately to the resident’s emails. But it did issue the stage 2 response on 28 August 2023. The landlord said it was sorry that the resident was experiencing issues with ASB. It said it was committed to continuing to work with the resident and would continue to support him. This was encouraging. The landlord reiterated that the resident needed to return completed ASB incident diaries, submit any noise recordings via its noise app or the local authority’s noise app, provide details of independent witnesses, and provide crime numbers, photographs, or videos that had not already been shared.
The landlord ought to have recognised that the resident had suggested he could not use its noise app on his phone. It should have committed to investigating the reason for this, so this could be resolved or an alternative solution be found. It might have offered to listen to the recordings made by the resident on his portable recorder, since the resident was offering to make these available. This may have given the landlord some idea of the duration of the noise nuisance, so it could agree an appropriate course of action.

Events after the stage 2 response

The landlord wrote to the resident on 13 October 2023, closing the ASB investigation. The landlord said that it had sent letters on 18 May 2023, 7 August 2023, and 13 September 2023, advising what evidence was required to support his allegations about the neighbour. But said the resident had not provided it with the evidence it requested.
It said taking further action would be inappropriate, as there was no evidence of ASB or a breach of tenancy. The landlord said it was intending to close the case, but if the resident did not agree he should contact the landlord within the next 7 days. This was in line with the landlord’s ASB procedure. There is no evidence that the resident responded, which suggests that the resident may have accepted the landlord’s position at that time.
While outside the scope of this investigation, it is understood that the resident made new reports about noise nuisance, the smoking of cannabis, and the suspected use of an electronic harassment direct energy weapon, throughout 2024.
The resident told the Ombudsman on 25 November 2024, that a professional witness had attended the property in recent weeks to try to witness the ASB from the neighbour. The resident said that he was waiting to hear the outcome of this and for the landlord to confirm its next steps. He mentioned that the landlord had recently assigned a dedicated member of staff to support him. The resident said he was pleased about this. But he really wanted the landlord to take some decisive action to resolve the issue with the neighbour. The resident said that he would be willing to mediate with the neighbour, if this could be arranged.

Overall

The Ombudsman does not doubt the impact described by the resident, by the neighbour’s banging. But it was likely to have been difficult for the landlord to decide on an appropriate course of action, without fully understanding the frequency and duration of the noise, the smell of cannabis, or evidence of homophobic behaviour.
Residents should expect to work with landlords to gather evidence or examples of the noise or behaviours they are being disturbed by. It was reasonable for the landlord to ask the resident to provide evidence supporting his position, that the noise was deliberate and more than general everyday living noise.
It was unhelpful that the resident did not keep an ASB incident diary and did not submit noise recordings, as the landlord had repeatedly requested. Issues with the quality of the evidence provided by the resident, remained a common theme throughout the case, which was unhelpful to the resolution of the substantive issue.
But the landlord could have investigated why the resident was unable to use the noise app on his phone, when this was brought to the landlord’s attention. It could have listened to the recordings that the resident said he had made on his own device. It might have met with the resident in-person to discuss the case, after the resident suggested this. While the landlord said it would contact the resident’s doctors and advocates to see if they had any evidence to share, the Ombudsman could not verify this happened.
In the Ombudsman’s view, the landlord could have been more proactive in obtaining evidence from the resident, that was of sufficient quality, to complete a fair and timely investigation. It would have been reasonable for the landlord to have considered ways to support the resident with this, when evidence was not forthcoming. Its communications with the resident were not always timely and were likely to have left the resident unclear at times on the landlord’s intentions.
Ultimately, the landlord closed the case because there was insufficient evidence that the neighbour’s actions constituted ASB. This was a view shared by the local authority noise team, and the police. The landlord gave the resident the opportunity to challenge its decision to close the case, which was good practice. The landlord closed the case when the resident did not respond, in line with its ASB policy. While the resident did raise new reports of ASB about the neighbour, these were not raised until several months later.
On balance, the Ombudsman finds maladministration in the landlord’s handling of reports of antisocial behaviour from a neighbour. The Ombudsman makes several orders later.

The landlord’s record keeping

The Ombudsman was able to determine this case based on the evidence provided by the landlord. However, there were noticeable gaps and omissions in the landlord’s records, as highlighted throughout this report. The Ombudsman would expect a landlord to keep a robust record of contact and evidence of its actions and transactions, relating to each casefile, which can be provided to the Ombudsman upon request.
The landlord provided details within its complaint response, of events and courses of action it had taken in relation to the case. However, the Ombudsman was unable to verify all of the landlord’s actions from the available evidence. This suggests that the landlord did not provide the Ombudsman upon request, all evidence related to case. This was inappropriate.
The Ombudsman finds service failure in the landlord’s record keeping and information management.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was:
1. Maladministration in the landlord’s handling of reports of antisocial behaviour from a neighbour.
2. Service failure in the landlord’s record keeping.

Orders

The landlord must endeavour to meet the resident, to discuss any outstanding issues with the neighbour and complete a risk assessment. During the meeting the landlord must:
1. Explain the current status of the resident’s ASB case against the neighbour.
2. Explain its approach to investigating reports of ASB and the resident’s role in this process.
3. Explain the threshold that the landlord expects will be met, for behaviour to be considered as ASB. The landlord should explain the resident’s options where the threshold for ASB is not met.
4. Explain its expectations of the resident in relation to the provision of evidence. If the landlord requires evidence to be provided in a particular format, the landlord should consider the resident’s ability to deliver this, and act accordingly thereafter.
5. The landlord should update any action plan that may already be in place, in agreement with the resident. If there is no action plan already in place, the landlord must agree an appropriate action plan with the resident, making clear who will do what and by when.
6. The landlord must provide the resident with a written record or minutes of the meeting.
The landlord must provide evidence to this service that it has complied with the above orders, within 5 weeks and 4 days of the date of this decision.