Cotman Housing Association Limited (202219362)

REPORT

COMPLAINT 202219362

Places for People Group Limited

1 October 2024

Amended at review.

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:
1. Knowledge and information management.
2. Handling of the resident’s reports of antisocial behaviour (ASB).
3. Complaint handling.

Background

The residents have an assured tenancy agreement with the landlord which started in 2009. The property is a 2-bedroom semi-detached house. The landlord had no vulnerabilities recorded for the residents.
The landlord is a subsidiary of a group which is made up of a network of over 20 housing providers, developers, property managers and care providers. This group is also a registered social landlord. For the purposes of this report, I will refer to both as “the landlord”.
The landlord’s ASB policy also includes its procedures for tackling ASB which it defines as any activity that impacts on other people in a negative way and interferes with a person’s right to live peacefully in their home and in the surrounding area. It says different people may be distressed or alarmed by different types of behaviour and activity. The landlord will not always get involved in everything that is reported to it as causing a nuisance; and whether or not it considers an activity to be antisocial will depend on a number of things and the evidence to prove ASB is taking place. The landlord will consider how severely the activity or behaviour is affecting others, how regularly it is happening, and whether the behaviour is considered unreasonable. The policy explains that ASB covers a wide range of activities including violence or threats of violence; hate crime and harassment; noise nuisance; intimidation and verbal abuse.
The policy says cases which do not involve domestic abuse, violence or hate crime, the person reporting the incident must complete an ASB report form providing details of the incident along with supporting evidence. The landlord will assess the form within 5 working days and inform the resident of the outcome. In most instances the resident will be asked to complete diary/incident log detailing the issues over a 2-week period. Once a case is open, the landlord will keep the person who reported the incident updated on the progress of the case in the way it agreed with them and write or email them when a case is closed.
The policy says that if a resident wishes to discuss an ASB issue confidentially it will listen, however it may be that limited, or no action can be taken. It will maintain the confidentiality of a resident if it is satisfied that identifying the resident would put them at a real risk of harm, though legal enforcement action may not be possible unless the witness can be identified to a court. As a rule, it will inform the other party of the identity of the individual(s) who have reported an incident. It will always get an individual’s permission before discussing these details with the other party.
The policy says that in many cases the landlord will need to speak to the other party. It will discuss the reports that have been made and who has made the reports. If the perpetrator acknowledges that they have acted in an antisocial manner, it will give them a verbal warning which will be followed up in writing. The landlord will act upon a report of ASB in order to prevent it escalating to a more serious level. It will use interventions to try and resolve ASB as quickly as possible include mediation, visits, good neighbour agreements, warning letters, restorative meetings and asking the perpetrator to agree to sign an acceptable behaviour contract which sets out the behaviour which will not be tolerated and the consequences of continuing ASB.
The policy also says that it will consider a referral to a mediation service in all cases as an early intervention tool to try and resolve issues early and without the need for legal intervention. It notes that mediation is voluntary and designed to support residents to build sustainable communities.
The policy adds that the landlord will carry out a risk assessment of a resident if the ASB they are reporting involves the use or threaten of use of violence, domestic abuse or hate crime. This will be done as part of the initial investigation of the case.
The policy says that the landlord will close a case in a number of circumstances: when it has resolved the problem or the problem has stopped; when it considers there is no case to investigate; when it does not believes the evidence warrants action; when the witness does not respond to the landlord further to reporting an incident; and when the issue involves a dispute between neighbours and the evidence is not sufficient to demonstrate that one party is more at fault than the other.
The landlord has a 2 stage formal complaints procedure. It aims to respond within 10 working days at stage 1 and within 20 working days at stage 2. The complaints policy (which came into effect January 2021) says that, where a customer has received a stage 1 response, and wishes to escalate to stage 2, unless there are special circumstances, they must request this either:
1. Within 6 months of when they first knew of the problem; or
2. Within 2 months of receiving their stage 1 response (if this is later).
The policy says that it will apply these time limits with discretion, taking into account the seriousness of the issue, the availability of relevant records and staff involved, how long ago the events occurred, and the likelihood that an investigation will lead to a practical benefit for the customer or useful learning for the organisation.

Summary of events

The evidence shows that the residents first reported statutory noise nuisance from a neighbour (the neighbour) on 14 March 2021. The landlord’s notes say that it opened an ASB case in March 2021.
On 18 March 2021 the landlord wrote to the neighbour saying it had received reports of noise nuisance whereby there was “frequent noise …throughout the night and early hours of the morning”. It explained the noise allegedly consisted of “loud banging, hammering, and knocking” and it was believed that this was a deliberate attempt to cause nuisance. The landlord added that it had also had a report that they had been verbally abusive towards another resident on several occasions. It added that the noise nuisance had been verified by more than one complainant and it had evidence that demonstrated loud noises in the middle of the night. It said it had “little doubt your behaviour can be considered a nuisance”. It agreed to visit him the following week.
On 23 March 2021 the landlord met with the neighbour to discuss the allegations of ASB. The landlord told him that there had been reports of noise from other neighbours, not just the residents. including “banging doors”. The landlord noted it had told the neighbour to consider mediation and, if the noise continued, it would issue a formal warning.
On 31 March 2021 the neighbour asked the landlord for a “black box” noise recording device to be fitted in their property so he could demonstrate that he was not making a noise nuisance. The landlord confirmed it had “a sound recorder issued for capturing evidence and he can use that for a week to see”. It is not clear on when the landlord provided that equipment to the neighbour, but the evidence suggests it was after 3 June 2021. The residents dispute the date the event described in this paragraph occurred. The residents state that this event occurred on 1 April 2021 as the landlord also contacted them on the same date.
The evidence also suggests that the landlord subsequently spoke to the residents. Its notes say that this conversation took place on 31 January 2021, but this cannot be correct as the neighbour did not request noise monitoring equipment until the end of March 2021. The note of that call says that the residents told the landlord, among other things, that neighbour was still banging and was finding new ways to wake them up through the night for example by banging a saucepan. They said it was infrequent but “definitely deliberate”. The residents dispute the date the event described in this paragraph occurred. The residents explain that the landlord had instead quoted the contents from their email of 31 March 2021 and also referenced matters in other emails dated 19 April 2021 in relation to the saucepan.
The landlord noted it had explained the benefits of mediation to the residents and they would consider that. It also explained it had agreed to provide the neighbour with noise monitoring equipment so he would disprove he was making excessive noise at night. The landlord added that enforcement action could be longwinded and would not be possible without solid evidence.
On 6 April 2021 the landlord spoke to the residents who said they were still being woken every night by malicious noises and would provide evidence. According to the residents version of events; the residents set out that the landlord called the residents, informing them of the landlord’s visit to the neighbour and an installation of a ‘Black Box’ dated Tuesday 6 April 2021 or Wednesday 7 April 2021.
On 29 April and 7 May 2021, the landlord spoke to the neighbour about the noise complaints. He denied making noise and agreed to mediation. The residents dispute the date the event described in this paragraph occurred. Provided. The residents provide evidence from the landlord confirming that the neighbour had already agreed to mediation in March 2021.
On 18 May 2021 the landlord sent the neighbour a final warning. It said that it now had sufficient evidence from the residents that contradicted what he had said and clearly demonstrated that he was making excessive noise during the night by deliberately striking the wall or hitting something. It explained the recordings provided by the residents demonstrated that there were regular bangs, thuds and miscellaneous loud noises throughout much of the night. The landlord added that the case was now with mediators, and it hoped some progress would be made; however, if it continued to receive complaints and evidence, it would serve him with a Notice Seeking Possession due a breach of his tenancy conditions.
On 3 June 2021 the landlord visited the neighbour as it had agreed to play him some of the recordings it had received from the residents. It noted the neighbour immediately said it was “fabricated” and asked if there were any recordings made on 14 and 15 May 2021. The landlord said there was, and the neighbour explained he had left his car in the drive but had stayed at his sisters for 2 nights and could ask her to verify that. The landlord’s tenancy services officer noted it “wasn’t 100% convinced of [the neighbour’s] guilt … and admitted I did not have concerns”. The neighbour said he would be away that weekend for 2 nights to see if the neighbours continued to submit recordings.
The residents dispute the landlords version of events in the above paragraph, particularly the date the event described in the above paragraph occurred. The residents explain that on 26 May 2021, the landlord visited the neighbour and disclosed the resident’s evidence to the neighbour. Furthermore, on 3 June 2021, the landlord only talked to the neighbour and the residents by telephone and never visited the neighbour.
On the same day the landlord told the residents that the neighbour had said he had not been at home the night they had sent in sound recordings. It said it was meeting with the neighbour and his relatives the following week where they would present their evidence. It said it would close the case if it could be proved the neighbour was not at home; however, it would still suggest mediation. The resident’s dispute the landlords version of events as detailed in this paragraph. The residents explained that this paragraph omitted dates and does not specify some dates.
The evidence suggests that at this time the landlord provided the sound recording equipment to the neighbour. The landlord noted the neighbour had said he had recorded “the whole night on the night [the tenancy services officer] issued it”. It is not clear if the landlord listened to any, or all, of that recording. The evidence is also not clear on whether the landlord had a further meeting with the neighbour and his relatives.
On 15 June 2021 the landlord wrote to the residents saying it had closed their ASB case. It said:
1. On the nights of 28 and 29 May 2021 the neighbour was not at home. It added that this had been checked and verified with a family member who had provided evidence to support that. The landlord said that the residents had provided their sound recordings which indicated “loud bangs” over that period.
2. On the nights of 26 and 27 May 2021 the neighbour had made recordings of his movements during the night and there were no “short, sharp noises”. It noted the resident’s sound recordings indicated “loud bangs” in the same period.
3. It had determined that the noise was not coming from the neighbour and, if the residents were to provide further recordings, they should indicate where else the noise might be coming from.
On 21 June 2021, in response to the landlord’s enquiry of 8 June 2021, the residents told the landlord that the noises were only made on or at the adjoining wall and only during the hours while they were trying to sleep in bed.
On the next day the landlord wrote to a named individual at the residents’ address about their ASB on behalf of another social housing provider. It appears this letter was meant for another resident, not the residents. The residents subsequently told the landlord they felt it was trying to “harass and ‘threaten” them.
On 25 June 2021 the landlord assured the residents that the recording device it had issued to the neighbour had the time and date built into it and could not be tampered with. It said the neighbour’s recording demonstrated he was asleep at the exact time their recording demonstrated a loud noise. The landlord said it was monitoring the case with a view to closing it but would like to offer the residents another opportunity to provide evidence by providing them with specialist sound recording equipment.
On 12 July 2021 the residents made a formal complaint to the landlord about its handling of their reports of ASB. In brief, it concerned the decision to close their ASB case; asked why it was monitoring the ASB after it had closed the case; and said they had had received a tenancy warning letter which was addressed to a different resident. They asked the landlord to review its handling of their ASB case.
The landlord acknowledged the complaint 2 days later and said it would respond by 26 July 2021.
On 20 July 2021 the landlord responded to the residents at stage 1 of its formal complaint procedures. It did not uphold the complaint but acknowledged that there appeared to be some miscommunication which it wanted to clarify. The main points were:
1. The neighbour had strenuously denied the allegations and the residents had reported noise from him when it had evidence he was away and, on another occasion, when the noise monitoring equipment in his property had not picked up any noise. It said it seemed unlikely that the neighbour was responsible for the noise nuisance and the ASB case was closed.
2. The contradictory evidence did not negate the information the residents had supplied however, it was counter evidence. The landlord explained, if the matter was taken to court, this evidence would be relied upon to discredit its case. It said, on the balance of probability, the noise nuisance they reported was not caused by the neighbour. The landlord recognised that they might be experiencing a noise problem, but it was unable to attribute this to the neighbour at this time.
3. After receiving further noise reports from the residents, the landlord decided not to re-open the case but would give them a further opportunity to obtain evidence using specialist sound recording equipment. It added, if this was successful, it would formally re-open the ASB case.
4. It gave an explanation of the formal legal action that it could take in noise nuisance cases and the timeframes for that.
5. It thanked the residents for bringing to its attention the letter it had sent to their home address in error. It said it had been logged with its GDPR team and it apologised for the upset that letter had caused. It said the member of staff who had sent the letter had been made aware of the error.
6. It proposed the following:
  1. It would re-open the case to address the latest allegations against the neighbour.
  2. It would install a specialist sound recording device in the residents’ property.
  3. It would try to find them suitable alternative accommodation to allow them to move on.
  4. It signposted the residents to the local authority who had a statutory duty to investigate nuisance and ASB. It said, if they determined that the neighbour had harassed the residents, then it would take legal action against the neighbour.
The landlord explained that the residents should contact it within 20 working days if they wished to escalate the complaint.
On 26 July 2021 the residents asked the landlord to cancel its planned visit that day. They wrote to the landlord explaining that they “were confused by” the offer to install noise monitoring equipment because the ASB case was closed, and it had told the landlord that no noise had come from the neighbour since 25 June 2021. They said they would be willing to use the noise monitoring equipment when the noise started again. They said they would request an escalation within 2 months in line with the complaints procedure.
On 17 September 2021 the residents requested an escalation of their complaint. The landlord acknowledged that escalation request the same day and said it would respond by 14 October 2021 but would let them know if its response would be delayed.
The evidence suggests that on 24 October 2021 the residents provided the landlord with CCTV evidence to support their claim of harassment by the neighbour.
On 27 October 2021 the landlord spoke to the resident to extend the deadline for the stage 2 response to 12 November 2021 as the person dealing with it was off sick. On the same day it noted it would consider the evidence recently submitted by the residents.
On 28 October 2021, following receipt of information from the residents, the landlord asked them to confirm that they wanted the ASB case re-opening. It said the video footage they had since supplied supported the allegations of harassment. The landlord asked again on 8 November 2021 saying that, if it did not receive any contact from them, it would assume that they did not wish to take the matter further at that time and the case would remain closed.
On 9 November 2021 the landlord contacted the residents to explain that the complaint response would again be delayed for about 2 weeks.
On 22 November 2021 the landlord issued its final complaint response under its formal complaint procedures. It partially upheld the complaint. The main points were:
1. It should have offered the residents a meeting when it installed the noise monitoring equipment to discuss other options available. The ASB case should have remained open on the basis that the noise recordings they had submitted could demonstrate that they were experiencing noise nuisance from somewhere other than the neighbour.
2. It apologised the ASB case was closed without further discussions with the residents. It recommended that communication with the complainants of ASB should be improved and the matter discussed before the closure of the ASB case was confirmed in writing.
3. It did not consider it was possible to take action against the neighbour without identifying the residents as the complainants in this case because the evidence would be heard in court and the perpetrator would hear and see the evidence at that stage.
4. A new staff member had been assigned to the ASB case.
The landlord signposted the resident to the Ombudsman.
We understand the landlord subsequently investigated allegations of harassment and told the residents it would serve a notice for possession. The neighbour ended their tenancy in the summer of 2022. The landlord told the residents that they would let the neighbouring property as a “sensitive let” where it would carry out a careful review of the incoming resident to ensure there was no known history of ASB.
When the residents approached the Ombudsman, they said the landlord had not investigated their concerns about the ASB properly. They said the events complained about had had a significant impact on them as they had been unable to sleep. They were seeking an apology and compensation as redress.

Assessment and findings

Scope of the investigation

This report has considered matters from when the issues were first reported in March 2021 to the date of the final complaint response in November 2021. We understand the residents have made a separate complaint to the landlord about events after this time relating to ASB by the new neighbours.
The Ombudsman does not consider or comment on how a landlord should deal with identified service failings by the individual members of staff involved, in terms of any disciplinary proceedings. This is in accordance with paragraph 42(h) of the Housing Ombudsman Scheme, which states that this Service will not consider complaints which concern terms of employment or other personnel issues.
When investigating a complaint about a member of the landlord, we will consider the response of the landlord as a whole and will only comment on the actions of individuals only in so far as they are acting on behalf of the landlord. Therefore, if the actions of an individual member of staff give rise to a failure in service, the Ombudsman’s determination and any associated orders and recommendations would be made against the landlord rather than the individual. In short, we can look at staff conduct as part of the landlord’s overall service, but we cannot order the landlord to take disciplinary action against individual staff members.

Knowledge and information management

The landlord’s records did not give details of when the residents first reported ASB by the neighbour. We gave the landlord several opportunities to provide its ASB records, so it is reasonable to presume that it does not have this information and that no other documents exist other than the sparse documents provided. The lack of records about the landlord’s case management including the action taken is a knowledge and information management failing.
There were also errors identified within the information provided by the landlord. For example, a note of a telephone call that must have taken place at or after the end of March 2021 was dated 31 January 2021 (because the neighbour did not request noise monitoring equipment until that time).
An order has been made, below, for the landlord to carry out a review of its procedures in relation to its ASB record keeping to ensure that full, contemporaneous records are being made and retained. In doing so, the landlord should have regard to the Ombudsman’s Spotlight on Knowledge and Information Management.
There was further poor administration when the landlord wrote to a different resident about ASB at the residents’ address. This appears to be a basic, avoidable error by the landlord. The landlord’s records note that the data breach was logged as a near miss. It would be for the Information Commissioner’s Office to determine if there had been a breach here.
In its complaint handling, the landlord apologised for any upset this letter had caused the residents and said it was not intended. It explained it had been sent to them in error and the relevant staff member had been informed of their mistake. That was a reasonable step to take and was a proportionate response to the error.

The landlord’s handling of the resident’s reports of ASB

It is the Ombudsman’s role to assess the appropriateness and adequacy of the landlord’s actions in responding to reports of anti-social behaviour and the fairness and reasonableness of its response to the formal complaint. This does not include establishing whether a party is responsible for ASB; our investigation is limited to the consideration of the actions of the landlord in the context of its relevant policies/procedures as well as what was fair in all the circumstances of the case. The Ombudsman cannot tell the landlord to take action against neighbours.
The evidence suggests that after the landlord received evidence of the noise made by the neighbour, it wrote to him in March 2021 noting there was “little doubt” the neighbour’s behaviour could be considered a nuisance.
The landlord acted appropriately by writing to the neighbour and following that up with a visit a short time after. It also was reasonable for it to suggest mediation to try to improve the relations between the residents and the neighbour and to warn that it might issue a formal warning if the noise continued. We do not know if this action was taken within a reasonable time as we do not know when the report(s) that led to that action were made, it is noted that the resident has explained this occurred.
It was not appropriate for the landlord to install noise monitoring equipment in the neighbour’s property. In its stage 1 response the landlord explained to the residents how such equipment worked. Essentially, while the sound recording equipment constantly monitors the atmospheric sound, it required a button to be pressed to recall what was monitored 15 seconds previously and record until the stop button is pressed. There is nothing in the landlord’s records to suggest the noise monitoring equipment offered to the residents was any different from the equipment given to the neighbour. It would have been reasonable for the landlord to have offered such equipment to the residents much sooner so that they could evidence the noise they were experiencing. By giving it to the neighbour, the landlord was relying on him to record any noise he made. That was not fair to the residents. The landlord did not demonstrate impartiality here and that was a significant failing.
The evidence shows there were other instances which suggest the landlord did not act impartially. When the landlord visited the neighbour on 3 June 2021 (it is understood the residents dispute this date), it told him that it was not convinced he was responsible for the noise. It did so without any evidence to back up that statement but, rather, relied on the neighbour’s own account. That was not appropriate and gave the impression of bias towards the neighbour. We have not seen any evidence to suggest that the neighbour subsequently provided evidence to show he was absent from the property the nights of 14 and 15 May 2021 when the residents reported noise.
It was appropriate for the landlord to suggest mediation as a way for the residents and the neighbour to try to resolve matters. We note that mediation is voluntary and relies upon the engagement of both parties. If one party does not wish to mediate, it will not go ahead. It is noted the residents believe the landlord coerced them to accept mediation by stating that any legal defence representative and/or the judge would likely ask if mediation was offered.
The landlord closed the ASB case shorty after on the basis that the resident was away from the property on 28 and 29 May 2021. It noted this had been “verified with a family member who had provided evidence to support that”. We have not been provided evidence of this verification. Our view is that reliance on a family member would not have been fair to the residents as it would not have been evidence from an independent, neutral source.
The case closure was not appropriate because, even if the neighbour was not to blame for the noise, the evidence demonstrated that the residents were experiencing noise from somewhere. In its letter of 15 June 2021, the landlord noted that, if the residents provided further recordings, they should “indicate where else the noise might be coming from”. That was not reasonable. It was the responsibility of the landlord to try to identify this noise – perhaps by way of letter drops or visiting the area – and taking steps to resolve it. It was appropriate that the landlord re-opened the ASB case the following month following the residents’ reports of harassment by the neighbour.
We note contradictory statements in the landlord’s stage 1 complaint response when the landlord said that it had decided not to re-open the case but then later in the letter said it proposed to re-open the case to address the latest allegations against the neighbour. These conflicting statements would have caused confusion and frustration to the residents.
The landlord did not handle the residents’ reports of ASB appropriately. At times it did not appear to act impartially, and it closed the ASB case in error.
In relation to the failures identified, the Ombudsman’s role is to provide fair and proportionate remedies where maladministration or service failure has been identified. That is, to consider the impact of the landlord’s failings on the resident which can include distress, inconvenience, time and trouble and what is fair.
It is evident that the residents have experienced great frustration, distress and inconvenience as a result of the landlord’s poor handling of their ASB reports. Financial compensation of £450 is appropriate here to reflect that impact on the residents over a period of approximately 9 months.

Complaint handling

The stage 1 complaint response was issued within an appropriate time as it was in line with the timescales set out in the complaints procedure. While the stage 2 response was delayed, the landlord took appropriate action to inform the residents of this delay and the reasons for it.
In the stage 1 response the landlord explained that the residents should request an escalation within 20 working days. This was not appropriate because it did not reflect the complaints policy. The residents themselves identified this error and confirmed that they would escalate their complaint within two months, should they wish to do so. The landlord did not mention this in its final complaint response. While the impact on the residents was not significant, an apology would be appropriate to recognise this error.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its:
1. Knowledge and information management.
2. Handling of the resident’s reports of ASB.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its complaint handling.

Reasons

There were few records relating to the landlord’s handling of the residents’ reports of ASB. We noted one inaccurate record, and a letter was sent in error to the residents.
The landlord’s handling of the ASB reports was not appropriate. On occasions it did not demonstrate impartiality and it did not act reasonably in closing the resident’s ASB case.
The landlord gave inaccurate information in the stage 1 response about the timescales for escalating the complaint.

Orders

The landlord should take the following action within 4 weeks of the date of this report and provide evidence of compliance to the Ombudsman:
1. Apologise to the residents for the failings identified in this report.
2. Pay the residents the sum of £450 for the impact of its ASB handling failures.
Within 6 weeks of the date of this report, the landlord should carry out a review of its procedures in relation to its ASB record keeping to ensure that full, contemporaneous records are being made and retained. In doing so, the landlord should have regard to the Ombudsman’s Spotlight on Knowledge and Information Management which is available on our website.