Barnsbury Housing Association (202308415)

REPORT

COMPLAINT 202308415

Barnsbury Housing Association

31 January 2025

Our approach

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

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

The complaint

1. The complaint is about:

a.     The landlord’s handling of the resident’s reports of antisocial behaviour (ASB) about a neighbour, as well counter allegations received about the resident.

b.     The landlord’s response to concerns raised by the resident, that a member of its staff had used language, which the resident viewed to be antisemitic.

Background

2. The resident is an assured tenant. The tenancy started in September 2021. The property is a ground floor flat, within a 4-storey building.
3. The landlord has confirmed an awareness of mental health and physical disabilities within the household.
4. At the time of the complaint, the resident lived in the same building as the neighbour, who from here on in this report, will be referred to as “the neighbour”. The resident was of the understanding that the neighbour also had vulnerabilities. The neighbour has since vacated the property.
5. Difficulties between the resident and the neighbour began shortly after the resident moved into the property. Reports of noise nuisance, harassment, and the interception of deliveries were raised by both parties from the outset.
6. For context, the resident made 2 formal complaints prior to raising the substantive complaint. The resident raised the first stage 1 complaint in December 2021, about the landlord’s response to reports of nuisance arising from deliveries. The resident said that the landlord ought to have consulted with all residents before erecting a block notice, asking delivery drivers not to press other doorbells when delivering parcels. The landlord upheld the complaint, apologised to the resident, and removed the notice. The resident did not escalate the complaint further.
7. The resident raised a second stage 1 complaint in January 2022, about the landlord’s handling of the resident’s reports of ASB about the neighbour, and counter allegations received about the resident. The landlord recognised that it ought to have referred to incidents of ASB about the resident as “alleged”, since these had not been proven. But found no failure in its handling of the ASB. The landlord rejected the resident’s request to escalate the complaint to stage 2 because she had not complained about a failure in the landlord’s services. But agreed to log the complaint at stage 2, after the resident challenged its understanding of her continued dissatisfaction. The complaint was closed when the resident later confirmed she “was satisfied that there was not much more to be done at this stage”.
8. The resident raised the substantive stage 1 complaint 14 months later, on 18 April 2023. The complaint was about the landlord’s handling of ASB and the ongoing dispute with the neighbour, dating back to 4 October 2021. The resident said the landlord had dealt with her reports of ASB differently to that of her neighbour, which was unfair. She suspected that this was due to her age, disability, and race. She said the landlord had sent her a highly offensive communication which she viewed to be antisemitic. She suggested that the landlord’s actions towards her had been unnecessarily threatening, punitive, discriminatory, and could constitute as harassment. She said the landlord should compensate her for the harassment and stress it had caused.
9. The landlord issued the stage 1 response on 27 April 2023. The landlord did not uphold the complaint. The landlord:

a.     Set out the action that it had taken in response to the reports and counter reports of ASB from the parties. Said it recognised how hard it had been for all parties, but said it was genuinely seeking a solution. But it did not accept that it had discriminated against the resident or had racially aggravated the situation by the way it had handled the issues between the parties.

b.     Said it had acted appropriately, proportionately, and had followed up on all reports of ASB concerning the neighbour. It clarified that it was usual to tailor its response to the individuals concerned, bearing in mind vulnerability, risk, the support that was in place, evidence, and the type of ASB.

c.      Said it had already apologised for the term it had used within its communications, which described the resident’s racial heritage. It committed to providing staff training in relation to racial heritage terminology.

10. The resident emailed the landlord 2 May 2023, accepting the landlord’s decision about its handling of noise nuisance reports. But said the complaint should be escalated to stage 2, because she remained dissatisfied with the landlord’s handling of ASB from the neighbour. She said this had caused her considerable psychological damage. She pointed out that the landlord had not apologised for using antisemitic terminology. She said it had not adequately addressed her concerns about racial discrimination or compensation.
11. The landlord issued the stage 2 response on 12 May 2023. The landlord did not uphold the complaint. The landlord:

a.     Acknowledged the case was complex and the situation had been difficult for the resident and the neighbour. But said it had dealt with the case appropriately, proportionately, and had tried to be even handed. It did not accept that its actions had been discriminatory.

b.     Said that it had involved multiple agencies for support with the case at every opportunity. It noted that the issues had calmed down since the multi-agency meeting in March 2023.

c.      Committed to sending the case to the complex review team at the local authority, for an independent assessment. It informed the resident that she could also raise a community trigger review with the local authority, who could assess its handling of the case.

d.     Apologised for the terminology used concerning the resident’s heritage. It noted that the member of staff involved had already sent a written an apology concerning this and reiterated its intention to provide staff training.

12. The resident emailed the landlord on 12 May 2023. The resident said, “I do accept the findings on the ASB and your explanation, so consider that matter closed”. But said the landlord had still not addressed the issue of psychological damage or compensation. The resident said she did not accept the landlord’s apology about the terminology used to describe her heritage, which she still believed was racially aggravated. She said the member of staff involved had not apologised as it claimed. The resident asked the landlord to escalate her outstanding matters of concern to a stage 3 complaint hearing.
13. The landlord responded by making arrangements to hold a stage 3 complaint hearing. The resident told the landlord on 6 June 2023, that “any complaints by me over noise nuisance have been resolved at stage 2 of my complaint as I accepted your findings, as I said in my response to you. They are off the table”. The resident said that the meeting should focus on psychological damage caused and the antisemitic language used by the landlord.
14. The resident told the landlord the next day, that she had obtained legal advice and was inclined to just progress her concern about its use of antisemitic language. The resident later emailed the landlord asking it to put the stage 3 hearing “on pause”. The resident said she did expect an outcome to her complaint of some kind, but this was not necessarily financial.
15. The resident told the Ombudsman on 9 June 2023, that she did not want to take her complaint to stage 3 of the landlord’s internal complaint process. The resident said she would rather her complaint be investigated by the Ombudsman, as was her right. When asked what outcome she was seeking, she said the landlord should take responsibility for what had happened and compensate her.
16. The resident told the Ombudsman on 3 January 2024, that she did not recall accepting the landlord’s complaint findings about noise nuisance and ASB. She clarified that her main concern was the impartiality she perceived in the landlord’s handling of her reports about ASB, and its handling of counter reports received from the neighbour. The resident remained concerned about the terminology used by the landlord to describe her heritage.

Assessment and findings

Scope of the investigation

17. This investigation will consider the issues raised by the resident during the landlord’s complaint process and that were addressed by the landlord in its final stage 2 response. The Ombudsman’s assessment will focus on the landlord’s actions between 18 April 2022 and 12 May 2023. This being 12 months prior to the substantive complaint being made, through to when the landlord’s internal complaint procedure was exhausted. However, this report may reference events outside of this timescale, when taking into account any commitments made by the landlord in the stage 2 response.
18. It is evident from the evidence seen, that the situation was distressing for the resident. However, it is not the role of the Ombudsman to establish whether the ASB reported was occurring, or not. The Ombudsman may, however, consider whether the landlord’s handling of ASB was fair in all the circumstances of the case, and was in line with its legal and policy obligations.
19. The resident raised concern throughout the complaint, that the landlord was treating her differently to that of her neighbour, which believed may have been due to her race, age, and disability. The serious nature of this allegation is acknowledged. While the Ombudsman does not seek to dispute the resident’s claim, it is not within the Ombudsman’s remit to determine whether a landlord has unlawfully discriminated against an individual. This is a matter that only a court can determine. The Equality Advisory and Support Service (EASS) are the appropriate body to assist in dealing with allegations of discrimination. However, the Ombudsman may consider if the landlord’s response to the resident’s concerns about discrimination, was reasonable in all the circumstances of the case.
20. When the resident brought her complaint to the Ombudsman, she raised concern that the landlord’s handling of the ASB case had impacted her health and mental wellbeing. The serious nature of this is acknowledged. While the Ombudsman does not seek to dispute the resident’s comments, the Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Again, this is a matter best suited for the courts. But this investigation may consider the likely distress and inconvenience caused to the resident by the situation.

The landlord’s obligations, policies, and procedures

21. The Housing Health and Safety Rating System (HHSRS), was introduced in 2005, replacing the Housing Fitness Standard. The purpose of the guidance was to help landlords risk assess the condition of housing from the perspective of avoiding or, at the very least, minimising potential hazards. It recognises noise as a psychological hazard and the threat to mental or physical health from exposure to noise caused by a lack of sufficient sound insulation. It does not, however, cover unreasonable noisy behaviour of neighbours.
22. Social housing landlords have a responsibility to prevent ASB in the neighbourhoods they control. Local organisations, such as the police, local authorities, and social housing landlords, have different powers, roles, and responsibilities to help and support victims of ASB. Social landlords are required by law, to prepare an ASB policy and have procedures for dealing with occurrences of ASB.
23. The landlord has provided the Ombudsman with a copy of its ASB policy, which was in operation at the time of the complaint. According to this policy, the landlord aimed to prevent and minimise instances of ASB by balancing intervention and enforcement with prevention and support for victims, and by supporting perpetrators to change their behaviour. In summary:

a.     The landlord aimed to respond to reports of ASB within 2 to 10 working days, dependent on the vulnerability of the resident and the type of ASB reported. The landlord will complete an action plan with the reporter to agree actions for it and resident to take.

b.     It was committed to working in partnership with residents and key agencies, to deal with ASB effectively, and to resolve cases as quickly as possible.

c.      As part of its early intervention commitment, the landlord may refer victims and perpetrators to support agencies, use verbal or written warning letters, acceptable behaviour contracts, and mediation.

d.     It was committed to working with victims with vulnerabilities to provide them with support, by carrying out risk assessments, carrying out home visits if required, and by signposting or making referrals to other agencies for support and advice.

e.     It was also committed to referring perpetrators for support where necessary. It would take any vulnerability into account before commencing legal action.

24. Anyone experiencing persistent ASB has the right to request a multi-agency review of their case, to determine what remedial action ought to be taken, subject to meeting the locally defined threshold. At the time of the complaint, this was known as the “community trigger”. According to the landlord’s ASB policy, a resident would request a community trigger case review directly from the local community safety partnership. This is also affirmed on the local authority website.

The landlord’s handling of the resident’s reports of ASB about a neighbour, as well counter allegations received about the resident.

25. This was a complex case, involving multiple complaints and counter complaints by the resident and the neighbour. The evidence shows that the landlord was responsive to the accusations made by both parties, following their reports of noise nuisance, slamming doors, banging, harassment, and the interception of deliveries.
26. The landlord routinely responded to the resident’s reports of ASB within 2 working days. The speed at which it responded, suggests that the landlord was treating the resident’s reports as high priority. This was encouraging.
27. It has not been possible to determine from the available evidence, if a risk assessment was carried out with the resident, in line with the landlord’s ASB policy. If a risk assessment was carried out, this should have been recorded and then provided as evidence to the Ombudsman upon request. The landlord should satisfy itself that it has an appropriate mechanism in place for documenting any risk assessments carried out in response to reports of ASB.
28. The landlord’s records suggest that there was significant involvement and intervention by the landlord throughout the timeline of the complaint, to try to bring about a resolution in this case. It is not in dispute that the landlord provided advice to the resident on several occasions about keeping noise to a minimum. It also issued warning letters explaining the consequences of poor behaviour and offered mediation. This was in line with the landlord’s early intervention commitments. From the evidence seen, similar interventions were directed towards the neighbour, which again was encouraging.
29. The landlord showed creativity in its endeavours to evidence the ASB and support the parties with resolution. For example, the landlord acted on police advice and installed a closed-circuit television camera (CCTV) in the communal area, to evidence and challenge poor behaviour. It put up block notices reminding residents not to slam the communal door, to try to change behaviours. It wrote to all residents in the building setting out its expectations of a “good neighbour”. It also installed a dedicated post box for the neighbour, in view of their ongoing concern about the interception of deliveries. It is accepted that the resident perceived this to be special treatment. But in the Ombudsman’s view, this was a practical attempt by the landlord to resolve an immediate and ongoing source of conflict between the parties. The Ombudsman considers the landlord’s actions to be reasonable in the circumstances.
30. The landlord acted fairly by seeking to corroborate the neighbour’s reports of noise nuisance about the resident, rather than relying solely on the neighbour’s reports. By way of example, the landlord verified the neighbour’s reports about loud music played from the property in October 2022, by speaking to other neighbours. The landlord acted appropriately thereafter, by bringing the incident to the resident’s attention and asking her to modify her behaviour. The landlord supported the resident by advising her to keep her television and radio at an acceptable level or to wear headphones. It later offered to attend the property, to help the resident establish an acceptable volume, which could not be heard by other residents. In the Ombudsman’s view, the landlord’s response was reasonable and proportionate in the circumstances.
31. Similarly, the landlord asked the resident in December 2022, to provide dates and times when she had witnessed the neighbour deliberately slamming the communal door, so this could be cross referenced with CCTV recordings. It was unfortunate that the landlord was unable to verify the resident’s reports after reviewing CCTV footage. As the landlord needed evidence that the neighbour was deliberately slamming doors and was banging on the resident’s ceiling, it appropriately asked the resident to keep an incident diary and committed to a period of monitoring. The landlord showed that it was being supportive, by providing the resident with the ASB out of hours telephone number, and by adding her to the waiting list for noise monitoring equipment.
32. In accordance with the landlord’s commitment towards supporting vulnerable victims, the landlord made various offers of support to the resident over the timeline of the complaint. For example, after the neighbour refused to mediate in May 2022, it told the resident that it would continue to refer her to its mediation service, as they could still offer advice and support. It provided information and signposted the resident on multiple occasions to its wellbeing services, and at times to her own doctor after she described having feelings of low mood. The landlord sent the resident details of a 9-week online mindfulness course in May 2023. This is evidence that the landlord had due consideration for the resident’s vulnerabilities, and the impact the situation was having on her wellbeing.
33. The Ombudsman notes that the landlord signposted the resident to the local authority noise team and police on several occasions, where appropriate. This was helpful given that other agencies could offer additional advice and support. It was positive that the landlord informed the resident of her right to request a review of the landlord’s ASB handling by the local community safety partnership, via the community trigger. The landlord explained this to the resident on several occasions, including in December 2022 and again in May 2023.
34. The landlord’s communication records suggest that the landlord also proactively engaged with the police and relevant local authority departments throughout the timeline of the complaint, to help inform its investigations and aid resolution. It would have been helpful to this investigation had the landlord d provided more supporting evidence around this.
35. But the Ombudsman was able to verify that that the landlord made an information request to the police in October 2022. As previously referenced, it installed a CCTV camera in early November 2022, on police advice. Communications seen from the resident’s own advocate, suggests that there were at least 2 multi-agency meetings held in December 2022 and January 2023. The landlord also convened a residents meeting in March 2023, which was attended by the resident, the landlord, the local authority, and the police, where a multi-agency action plan was agreed. The landlord has evidenced that it completed the actions assigned to it. This is evidence that the landlord was engaging with residents and partner agencies, in accordance with its policy commitments.
36. During the resident’s meeting on 1 March 2023, the landlord addressed the resident’s ongoing suspicions about a lack of sound installation, contributing to noise transference within the building. The landlord neither accepted or rejected the resident’s suggestion but did clarify that there was no legal requirement upon landlords to soundproof older buildings. The Ombudsman was unable to verify from the available evidence, when the block had been built or converted. But this would be the case if the building had been built or converted prior to 2003.
37. However, landlords should recognise that actions taken to prevent and / or mitigate for typical sources of noise nuisance will, in the long run, be more cost-efficient than handling subsequent noise nuisance reports. Ultimately, and importantly, this will provide a better quality of service to its residents. If it has not already done so, the landlord should consider the merits of risk assessing the condition of property in line with the HHSRS, from the perspective of avoiding or, at the very least, minimising potential hazards. The landlord could then act accordingly depending upon its findings, so far is reasonable and practical.
38. The Ombudsman notes that a community trigger case review was carried out by the local community safety partnership in July 2023. It is understood that it was the neighbour who initially instigated the community trigger process. But given the resident’s concerns, the landlord committed to asking the local community partnership to review its handling of the resident’s case as well, which it did. The Ombudsman was encouraged that the landlord sought to satisfy itself and the resident, of the adequacy of its case handling.
39. The Ombudsman has seen the outcome of the community trigger case review, which did not identify any concerns regarding the landlord’s handling of ASB. The resident told the Ombudsman she had not been updated on the outcome of the review. In the interests of transparency, the landlord should provide the resident with a summary of the community trigger review findings, as far as it is able to, without breaking the confidentiality of other parties.
40. It was evident from the resident’s complaints, that she perceived the landlord to have treated her reports of ASB differently to those reports made by the neighbour. The resident explained to the Ombudsman on 3 January 2024, that the landlord had threatened her with eviction but seemed scared to take any firm action against the neighbour. The Ombudsman was unable to verify the residents account that she was threatened with eviction during the lifetime of the complaint. As already referenced, the landlord did issue the resident with written warnings after corroborating episodes of noise nuisance. However, similar warnings were also given to the neighbour following the resident’s reports of ASB and nuisance behaviour.
41. In its complaint response, the landlord clarified that it was usual to tailor its approach according to the vulnerability of the parties, the level of risk, the support that was in place, the evidence available, and the type of ASB. The Ombudsman suggests that this may well have led to differences in the landlord’s approach to the resident’s reports of ASB, and counter reports received from the neighbour. While the resident may have perceived any resultant disparity to be unjust, the landlord’s approach was in line with its ASB policy.
42. Ultimately, a landlord cannot be compelled to take action against a tenant for breach of tenancy and would have to be satisfied that such action was reasonable and proportionate in all of the circumstances of the case. The landlord was entitled to rely on its own expertise to determine whether there was sufficient evidence to support enforcement action being taken against either party. It is understood that neither to landlord, nor the local community safety partnership, considered there to be sufficient evidence to support this at the time.
43. On balance, the Ombudsman finds no maladministration in the landlord’s handling of the resident’s reports of ASB about a neighbour, as well counter allegations received about the resident.

The landlord’s response to concerns raised by the resident, that a member of its staff had used language, which the resident viewed to be antisemitic.

44. The landlord met with the resident on 1 March 2023, along with partner agencies to discuss reports and counter reports of ASB. The landlord has provided the Ombudsman with a copy of a file note made by the landlord during the meeting, which recorded the resident’s concerns about the neighbour’s behaviour. The landlord documented that the neighbour had sent the resident a letter, which she believed to be offensive and racist, “due to her being half-jewish and her heritage”. The landlord wrote to the resident on 3 March 2023, directly referencing her being “half-jewish”, and the action that it and the police had or were taking in relation to this.
45. The Ombudsman notes that that the landlord’s member of staff, who had written to the resident on 3 March 2023, issued a letter of apology to resident on 7 March 2023. Its member of staff apologised for referencing the resident as “half-jewish”. It noted that the resident had used this terminology herself during the multi-agency meeting, to describe her background. But said it could understand and did acknowledge that this term was derogatory and should not have been used. It apologised for any distress this may have caused. This is evidence that the landlord was taking responsibility for its actions. The Ombudsman was encouraged that the apology was written by the member of staff concerned and considers this to be a proportionate remedy to the failing identified.
46. The resident expressed continued concern in the stage 1 complaint on 18 April 2023, about the landlord’s used of terminology to describe her heritage, which she considered to be highly offensive and antisemitic. It is unclear from the evidence seen if the resident had received the landlord’s earlier apology. It is noted that the resident expressed concern around this time, that she was not receiving all of her post.
47. The landlord commented in the stage 1 response, that the resident had referenced herself as being “half-jewish”, during the meeting on 1 March 2023. It noted that it had already apologised to the resident for its use of terminology but offered the resident a further apology and confirmed that it had arranged some staff training. The landlord’s response shows that it was treating the resident’s concerns with the attention they deserved and that it was committed to learning from the complaint.
48. When the resident escalated the complaint to stage 2 on 2 May 2023, she refuted that the landlord’s member of staff had offered her an apology and suggested that its member of staff needed racism awareness training. The landlord wrote to the resident on 11 May 2023, providing a copy of its apology letter dated 7 March 2023.
49. The landlord apologised again in the stage 2 response on 12 May 2023, for referencing her as “half-jewish”. The landlord accepted that this was not terminology that ought to be used and reattached its apology letter dated 7 March 2023. It confirmed that its staff had already completed some equality, diversity, and inclusion training, but it would be arranging more training later in the year. It reassured the resident that terminology around racial heritage would form part of the training. Again, this shows that the landlord was taking responsibility for its actions and had a plan in place to prevent similar occurrences in the future.
50. Overall, the Ombudsman considers the landlord responded appropriately to the resident’s concerns that a member of its staff had used language, which the resident viewed to be antisemitic. Accordingly, the Ombudsman finds no maladministration.

Determination

51. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in:

a.     The landlord’s handling of the resident’s reports of ASB about a neighbour, as well counter allegations received about the resident.

b.     The landlord’s response to concerns raised by the resident, that a member of its staff had used language, which the resident viewed to be antisemitic.

Orders and recommendations

Recommendations

52. The landlord should satisfy itself that it has an appropriate mechanism in place for documenting risk assessments carried out in response to reports of ASB.
53. The landlord should consider the merits of risk assessing of the condition of property in line with the HHSRS, from the perspective of avoiding or, at the very least, minimising potential hazards. The landlord could then act accordingly depending upon its findings, so far is reasonable and practical.
54. The landlord should provide the resident with a summary of the community trigger review findings relating to her case, as far as it is able to, without breaking the confidentiality of other parties.