Aster Group Limited (202304972)

REPORT

COMPLAINT 202304972

Aster Group Limited

18 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 the resident’s:
1. Reports of antisocial behaviour.
2. Associated formal complaint.

Background

The resident is the assured tenant of a 1-bedroom first floor flat, owned by the landlord. The property is situated in a low level block, classed as ‘extra care’ accommodation, which has on-site care staff. The landlord has advised this Service that its records show that the resident is vulnerable and has mobility problems.
The resident raised a formal complaint to the landlord on 1 February 2023. She said that she had reported an incident, on 22 January 2023, whereby her neighbour had threatened to harm her. She felt that the landlord’s out of hours call handler and telecare provider had done nothing to assist her.
In its stage 1 complaint response on 15 February 2023, the landlord empathised that the incident would have been distressing. Its call handler had advised her to contact the police. Its antisocial behaviour (ASB) team had received the information of the incident and opened a case for investigation. It found no record of a telecare call for the date of the incident and asked her to test the pull cord. It said that it had provided the correct advice and followed its procedures.
On 24 February 2023 the resident asked the landlord to escalate her complaint. She said she was not willing to let the threat go. It had implied that she did not make the call on 22 January 2023 and asked it to investigate. She was also unhappy with how it had conducted the complaint investigation and ended a telephone call with her.
The landlord responded at stage 2 of its complaints process on 11 April 2023. It assured the resident that it had taken the matter seriously and had not suggested that she “let it go.” It had investigated when she had made calls and provided details of its findings. It set out the actions it had taken with regard to the incident since receiving her complaint and explained why it was unable to take any further action.
The resident remained dissatisfied with the landlord’s response and brought her complaint to this Service.

Assessment and findings

In reaching a decision about the resident’s complaint we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances.
The Crime and Policing Act 2014 states that ASB is conduct which:
1. Has caused, or is likely to cause, harassment, alarm or distress to any person.
2. Is capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.
3. Is capable of causing housing-related nuisance or annoyance to any person.
The landlord has an ASB policy (and separate procedure) that shows that it will “adopt a harm centred approach to managing ASB.” It states that ASB includes noisy parties, loud arguments, intimidating behaviour, and threats of violence. It will not become involved in cases with matters which, after investigation, it considers it to be a lifestyle difference, a one off low risk event, or where reports are not supported by evidence and there is no actionable ASB. It adds that it will:
1. Ensure that reasonable and appropriate support is offered to victims and witnesses. This may mean referring or signposting to other agencies who may be better placed to provide this.
2. Work in partnership with police, local authorities and other involved agencies.
3. Use a range of tools such as mediation, Noise App for evidence gathering, community ASB surveys, professional witnesses, acceptable behaviour contracts and legal remedies (as a last resort).
ASB case management is a crucial aspect of a landlord’s service delivery. Effective use of a robust ASB procedure enables the landlord to identify appropriate steps to resolve potential areas of conflict, improve landlord/tenant relationships and improve the experience of tenants residing in their homes. Retaining accurate records also provides transparency to the decision-making process and an audit trail after the event.
The evidence provided to this Service shows that there is a history of complaints made by both the resident and her neighbour, against each other, dating back to 2020.
Matters where there is a history of ASB over an extended period, such as this, are often the most challenging for a landlord to manage. In practice, the options available to a landlord to resolve a case may not extend to the resident’s preferred outcome and it therefore becomes difficult to manage a resident’s expectations. In such instances, closely following the ASB policy ensures that a landlord is acting fairly, its response is proportionate to the issues being raised, and that its approach is consistent, even if it does not lead to the outcome requested by the resident.
In the resident’s complaint she said that she reported an incident on 22 January 2023 to the landlord’s out of hours service. Her neighbour was knocking on her door, she answered “hello”, and he said hello back to her. There was a pause, and he screamed “I will kill you”. He repeated his threat whilst hammering on her door. She called the out of hours number and pulled her telecare cord. She said that the pull cord operator answered and said that she would not call the police. She believed that 2 care staff had witnessed the incident but did nothing to assist her.
It should be noted that the neighbour made a counter allegation against the resident on the date of the incident. The evidence shows that the landlord contacted both parties promptly when it became aware of the incident and opened ASB cases. This was in line with its procedures.
Following its initial contact with the resident, on the day she raised her complaint, the landlord attempted to speak with her on a number of occasions but had been unable to reach her. Its records show that it was arranging to visit her at home with an aim to discussing the incident and the counter allegation.
In its stage 1 response the landlord said that it had checked its records and looked at its systems where it recorded all customer contact. It had asked its out of hours monitoring company and telecare provider to provide full details of the received calls. It had also spoken with its independent living officer and team leader. Its response included as follows:
1. Its out of hours service was there to respond to urgent repairs such as floods and fire. If the resident was a victim of violence or threats of violence, she should call the police. She should take note of the incident number and the police officer’s name so it could then contact them for information. Its call handler had confirmed that when she telephoned, it had advised her to call the police.
2. The independent living officer passed all of the information regarding the incident to its ASB team and a case was opened. She would be contacted further to discuss the incident by a member of the team.
3. Its telecare provider recorded all calls received from residents via the pull cord system when the care team were not on site. The last call from her property was 4 January 2023. They had no calls registered on the date of the incident. It asked her to test the pull cord to ensure that there were no faults. If the test identified a fault, she should report this immediately.
4. It appreciated that the incident was distressing for her. However, based on the information available it was unable to identify a service failure. It had followed its procedures and the correct information had been given to her by its call handler.
It is normal practice for landlords to investigate reports of ASB via their ASB procedure, and separately from their complaints process. The landlord’s complaint response was appropriate and demonstrated that it was investigating the ASB report. It also demonstrates that it had investigated its call history, both with its call handling and telecare service. The advice given by its call handler, in contacting the police, was also appropriate as threats of violence are a criminal offence which would require investigation by the police.
The landlord visited the resident at home on 16 February 2023. Its notes from the home visit show that:
1. She advised that she had contacted the police but no one had attended until a few days later. She was unsure whether any action had been taken. She believed that 2 of the care staff had witnessed the incident but were unwilling to tell the truth.
2. It had carried out target hardening during the visit and confirmed that no additional security measures were required. The front door was secure, there was a lifeline in the property, and the property was on the second floor so no window alarms were necessary. She confirmed that she felt safe in her home and had a personal alarm.
3. She had said that the neighbour was causing noise. It discussed using its noise app, however, she said that she had no free capacity on her phone so was unable to use it. It offered to assist her to free up some space and listen to the recordings on her phone but she declined.
4. It offered support via a referral to victim support, her GP, and adult social care but she declined its offer. She had been clear that she did not want it to make any referrals.
5. It explained that if there was no evidence or action taken by the police, it was unlikely that it would take tenancy action. She had been adamant that she wanted the neighbour to be evicted.
6. It also discussed the counter allegation made against her which she denied.
7. It set out its action plan, to liaise with the police, speak with the neighbour about the incident, maintain 2-weekly contact, and that she should report any further incidents.
The landlord’s completion of an action plan, checking that the resident felt secure, offering the noise app, and to make referrals to support agencies was appropriate and in line with its policies and procedures. The fact that the resident declined its offers would have hindered the landlord in collecting information about her reports of noise from her neighbour, and therefore limited its ability to investigate further or take any action.
It is the Ombudsman’s understanding that there is a high threshold of evidence required to pursue legal action regarding ASB. The landlord’s ASB policy notes that it can request that a resident help gather evidence such as incident logs and noise recordings. It was therefore appropriate that the landlord suggested the use of its noise app to gather recordings of the noise.
Not every instance of annoyance reported to a landlord will be something it has the power to act on. A landlord has 2 main duties when ASB is reported. The first is to undertake a proportionate investigation to establish the nature and extent of the ASB. The second is to weigh in balance the evidence, and the respective parties’ rights to enjoy their home, and decide what action it should take. The Ombudsman’s role is to determine if the landlord carried out a proportionate investigation and whether the actions it took were within its powers.
In the resident’s escalation request, she said that she was unwilling to let the threat go and disputed the implication that she had not made the call on 22 January 2023. She wanted the landlord to investigate further and named the individual who had answered the call.
The evidence demonstrates that the landlord liaised with the police about the incident to establish whether it was taking any action. Its records of 17 and 20 March 2023 show that:
1. The police were taking no further action due to lack of witnesses, CCTV, and there being insufficient evidence.
2. It had considered offering mediation but concluded that it would not be suitable in this instance.
3. The neighbour had denied making the threat. He said he had knocked on her door to ask her to stop banging which she had been doing for several hours prior. He was given advice not to approach the resident in future and to make complaints to a member of staff.
4. It had considered CCTV, however, it did not install CCTV in individual flats. It did use CCTV in communal areas but as it was an isolated incident it would not be proportionate to do so.
5. Neither party had expressed an interest in moving.
The events detailed above demonstrate that the landlord had spoken with the neighbour, as set out in its action plan, along with approaching the police to ascertain whether it would be taking any action. It gave appropriate advice to the neighbour and considered options to resolve the matter. Given that both parties denied the allegations made against them, the police were taking no further action, and the lack of evidence, it would have been difficult for the landlord to take any further action.
On 1 and 7 April 2021 the resident made further reports about the neighbour playing a musical instrument. She referred to making previous reports dating back to 2020 which the landlord failed to resolve. She again said that she was unable to record the noise as she had no storage space on her phone.
In its stage 2 response the landlord said that it had taken the matter seriously and had not suggested that the resident let go of the perceived threat against her. Its response included as follows:
1. It had confirmed that the out of hours call alarm, activated by the pullcord, had not gone through. It was sorry that this did not account for having a conversation with the named individual. It was assured that the care staff did not work after 10pm and was therefore unsure how she would have spoken to the individual.
2. The police had investigated the incident and were unable to move forward as there was no corroborating evidence.
3. She had been unhappy with the way the complaint investigation had been conducted and she alleged that a call was ended due to her shouting at the call handler. It had spoken with the call handler about the telephone call and it apologised if she came across as abrupt, this was not her intention.
4. It had reviewed the case management of the incident and was satisfied that, based on its chronology, it had followed its processes.
5. It provided a chronology of events from the date of the incident. It said that its call log records show that she made a complaint about her neighbour playing his saxophone and that he threatened her. She was advised to call the police. There was no record to show that the operative who spoke with her could hear any disturbance in the background.
6. It visited on 16 February 2023 and its ASB officer spoke at length about the allegations. The police had advised that they were taking no further action in relation to the incident due to insufficient evidence and confirmed they had no viable witnesses.
7. The neighbour had denied making threats and on the balance of probability it would not be proportionate to take action against him. There had been no further reports since. It had tried to contact her since the incident but had not been successful. It asked her to ensure that any future reports were made to its ASB team rather than individual staff members to prevent any delays.
8. It had discussed security with her and confirmed that no further measures were required. It had considered its safeguarding policy and offered to make referrals which she had also declined.
9. It offered to put her in contact with adult social care and victim support, but she did not want this.
10. It had advised her to keep diary sheets including the dates and time of any noise from her neighbour. It had previously advised that it was not noise nuisance as it was only for short periods and was during the daytime, therefore was reasonable. She had disagreed with this. She said she had been recording it on her phone, but her phone was now full. It offered to listen to these, but she refused to allow it to do so. It discussed the noise app, but she said she could not use it as she had no space on her phone. It offered to help her make space, but she refused, and it discussed writing a noise diary which she also refused to do.
11. It understood that she and her neighbour had been asked about moving, but neither had expressed an interest in doing so.
The landlord’s stage 2 response was comprehensive and demonstrates that it had again investigated the call history and resident’s concerns. It considered the resident’s safety, making referrals, alternative accommodation, and the evidence it had available. While it did not directly employ the care staff, it could have considered asking its provider to talk to them and provide statements. That said, the police had investigated the matter and confirmed there were no witnesses. The resident had declined its offers which would have made it challenging for the landlord to further investigate the reports of noise.
On 14 April 2023 the landlord wrote to both parties concluding that it was closing the case due to lack of evidence. This was appropriate given both parties had denied the allegations made against each other and the lack of evidence available.
The resident responded on 19 April 2023 and had a telephone conversation about its stage 2 response. She said that staff had told lies about speaking to her and had not offered to help make space on her phone. It is assumed that during the conversation she also stated that the landlord had been incorrect about the time of the incident.
The landlord provided a revised stage 2 complaint response on 20 April 2023. It apologised for its error and confirmed that she had clarified that the incident took place in the afternoon and not the early hours of the morning. It acknowledged that this made a difference to some of the points it referred to in its original letter. It apologised if this made her feel that it had lied to her or treated her maliciously. It assured her that this was not the case and was a genuine error. It repeated its previous response and amended the time of the incident. It also confirmed that it had spoken with its customer experience manager in its contact centre who confirmed that she contacted its out of hours service. It was reasonable for it to further investigate and amend its response.
While we appreciate that the incident would have been distressing for the resident, the landlord demonstrated that it followed its ASB policy and procedure in investigating the report of ASB. It also appropriately showed that it had looked into all of the resident’s concerns. Its responses were appropriate and we, therefore, find no maladministration in the landlord’s handling of the resident’s reports of ASB.

Associated formal complaint

The landlord operates a 2-stage complaints process. Complaints are acknowledged within 5 working days. Stage 1 complaints are responded to within 10 working days and stage 2 complaints within 20 working days. Where it requires additional time to respond it may agree and extension of 10 working days.
The resident raised her complaint on 1 February 2023, acknowledged by the landlord the following day. It responded at stage 1 of its complaints process on 15 February 2023, 10 working days later, in line with its complaint policy timescales.
The resident asked to escalate her complaint on 24 February 2023. The landlord responded at stage 2 of its complaints process on 11 April 2023, 31 working days later.
The landlord’s stage 2 response would have been due on 24 March 2023. While this Service has not had sight of an email, dated 24 March 2023, reference was made to it in an email of 12 April 2023. It said that it had requested an extension to the timescale explaining that it had extended the timescale to respond by 10-working days. It had been unable to respond fully within the 20-day timescale as it was waiting on information from other services which was relevant to the complaint. It had, therefore, applied an extension in line with its procedure.
While we appreciate it would be frustrating for the resident, the extension of the timescale was appropriate given that the landlord needed information from other services to enable it to respond fully. This was in line with its policies and procedures, and this Service’s Complaint Handling Code. While its response was 1 working day later than the extended timescale, this was not a significant delay. We, therefore, find no maladministration in the landlord’s handling of the resident’s associated formal complaint.

Determination

In accordance with paragraph 52 of the Scheme, there was no maladministration in the landlord’s handling of the resident’s:
1. Reports of antisocial behaviour.
2. Associated formal complaint.