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Phoenix Community Housing Association (Bellingham and Downham) Limited (202224521)

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REPORT

COMPLAINT 202224521

Phoenix Community Housing Association (Bellingham and Downham) Limited

29 May 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

  1. The complaint is about the landlord’s handling of the resident’s reports of anti-social behaviour (ASB).
  2. The Ombudsman has also considered the complaint handling of this case.

Background

  1. The resident lives in a 2-bedroom mid terraced property. The tenancy began in May 2004 initially on an introductory tenancy that became a secure tenancy in May 2005.
  2. The landlord is not aware of any vulnerabilities for the resident. However, its records show the resident’s daughter has ADHD.
  3. The resident started to report ASB to the landlord in 2019. The resident’s allegations were about noise from a neighbour banging a door and a smell of cannabis that she said had caused her headaches. The landlord does not own the property where the alleged perpetrator resides, however, it is owned by another social housing landlord. The resident was already in contact with the council’s crime and safety team and the landlord liaised with that team about the resident’s allegations. 
  4. This investigation starts from the resident’s more recent reports of ASB to the landlord from late December 2021, as this timeframe aligns to the landlord’s complaint investigation. The resident made an allegation that a neighbour smoked cannabis in a communal area. The resident said she could smell cannabis within her home and asked the landlord to send a general letter to all residents within the block of properties to advise them it was not acceptable to smoke in the communal area. However, as the allegation was about the use of an illegal substance and directed at one resident, the landlord felt it was more appropriate to make contact with the alleged perpetrator’s landlord for them to deal with the matter directly with its tenant. In the meantime, the resident contacted the council’s crime and safety team to follow up on the allegation.
  5. The resident continued to contact the landlord as she had become frustrated with the situation because the ASB incidents continued and stated her wellbeing was affected. She believed the landlord was not doing enough to resolve the situation. The resident implied the landlord was discriminating against her because of her ethnicity. The landlord responded shortly after to reassure her it was dealing with the incidents and it refuted the discrimination allegation. The landlord attempted to contact the landlord of the neighbour’s property but was unsuccessful.
  6. The resident made a complaint to the landlord in January 2023 because she did not believe the landlord was doing enough to resolve the ASB. The landlord responded at stage 1 of its complaints process in February 2023 when it explained its actions. These included; opening an ASB case, its attempts to gather evidence, it had monitored the ASB and liaised with the council’s crime and safety team and had attempted to contact the landlord of the neighbour’s property. As part of its response the landlord recognised it could have advised the resident of its complaints process sooner, and it partially upheld the complaint.
  7. The resident contacted the landlord mid-February 2023 as she remained dissatisfied with the landlord’s actions. However, the landlord did not acknowledge the resident’s dissatisfaction until significantly later on 26 April 2023. The landlord sent its stage 2 complaint response to the resident on 26 May 2023. In its response, the landlord recapped on its actions to date, and it said it believed it had handled the ASB case correctly. It acknowledged its failure to provide the resident with details of its complaints procedure earlier and how she could make a complaint to the owner of the property. It also reflected on its stage 2 complaint delay and it offered the resident £50 compensation for its late complaint response.

Summary of events after landlord’s complaints process

  1. The landlord continued to attempt to contact the landlord of the neighbour’s property and in October 2023 the neighbour’s landlord responded. It confirmed it had begun an investigation into the alleged ASB.
  2. The landlord reviewed its handling of the ASB case and the handling of the complaint in January 2024 after the resident had referred her complaint to this Service. It identified further failures in both its ASB case handling and its complaint handling. It advised this Service it was prepared to increase its compensation offer to the resident from £50 to £450.
  3. The landlord confirmed to this Service it closed the ASB case in April 2024.

Assessment and findings

The landlord’s handling of the resident’s reports of anti-social behaviour (ASB).

  1. On 13 December 2021, the resident reported to the landlord a smell of cannabis smoke from a neighbour’s property. On 15 December 2021, the landlord recorded it had attempted to contact the resident by telephone on a number of occasions without success. The landlord’s ASB strategy aims to effectively deal with any form of ASB as quickly as possible based on a victim centred approach. While the landlord attempted to investigate the matter promptly from the resident’s initial report, when it was unsuccessful in its contact with the resident, it was unreasonable that it did not follow this up with the resident by other communication methods such as by letter, to satisfy itself it had made all reasonable attempts to investigate the allegation.
  2. The resident made contact with the landlord again on 6 January 2022 to report the same alleged issue of cannabis use from a neighbour. She said she could smell cannabis within her home and it had caused her headaches. The landlord investigated the allegation on 7 January 2022. The landlord’s ASB procedure sets out the actions it should take such as opening an ASB case, to set an agreed action plan with the resident and to categorise the ASB. While the landlord acted on the resident’s allegation promptly, there is no evidence it opened an ASB case on its case management record system, agreed an action plan with the resident, or assessed the likely grade of the ASB. The landlord’s failure to do so was inappropriate.
  3. In January 2022, the landlord established the alleged perpetrator’s property was not in its ownership and noted the resident would contact the council to “address the matter”. Later the same day, the resident provided the landlord with details who they assumed was the social landlord for the neighbour’s property. However, there is no evidence the landlord made contact with its landlord counterpart at this stage, or that it was proactive in its contact with the council’s crime and safety team.
  4. Instead, the initial contact and interactions with the council’s crime and safety team appeared to be resident led. The landlord’s ASB strategy promises to work with partners; police, local authority and other agencies, to tackle ASB. The landlord had a key role to ensure the resident could peacefully and safely enjoy the use of her home. As such, the resident could reasonably expect that the landlord would take a proactive role in working collaboratively with other partners including the council and another social landlord. Therefore, it was a reasonable expectation that the landlord should have instigated contact with the council’s crime and safety team, who had wider powers in tackling ASB across all tenures. The landlord should also have ensured contact with the social landlord of the neighbour’s property from January 2022, utilising escalation where appropriate. The landlord’s lack of action in following the resident’s concerns up with the council and the social landlord from January 2022 were therefore inappropriate.
  5. On 9 April 2022, the resident contacted the landlord and described the detrimental impact on her health and wellbeing caused by the incidents of noise when the neighbour’s door was slammed, and that the smell of cannabis use was causing her headaches. The resident was dissatisfied because she did not feel the landlord was doing enough to help her and implied the landlord had treated her less favourably because of her ethnicity.
  6. The landlord responded to the resident on 11 April 2022 and opened an ASB case. The landlord attempted to reassure the resident it took a “resident led approach” to tackling ASB that did not impact on equality of treatment in relation to the resident’s ethnicity, and it reassured her it would address the ASB fairly. The landlord arranged for one of its officer’s to contact the resident to provide her with support on 19 April 2022.
  7. There is no evidence within the landlord’s records to support the resident’s complaint of discrimination, however, in the absence of a non-discriminatory explanation for the landlord not following its ASB policy, this Service is unable to fully conclude as to whether the landlord has had due regard to its responsibilities under the Equality Act 2010. The landlord should reflect on this aspect of the resident’s complaint and offer an explanation to the resident as to what the non-discriminatory reasons were for its ASB handling failures.
  8. The landlord did open an ASB case (albeit 4 months late) in April 2022 and it graded the ASB as ‘2 – medium risk’ in accordance with its ASB procedure. The landlord’s ASB procedure grades ASB from grade 1 (e.g. hate crime targeted by protected characteristics or acts of violence), grade 2 (intentional ASB, targeted and may be continuous), grade 3 (acts are considered a breach of tenancy conditions). The landlord’s grading was reasonable and appropriate to the case circumstance and therefore demonstrated due consideration of its ASB procedure.
  9. The landlord’s ASB procedure states a landlord will conduct a monthly case review on grade 2 ASB reports and provide feedback to the reporter of ASB. There is evidence the landlord did conduct the necessary case reviews, however, there is no evidence the landlord was proactive in its communication to the resident through regular updates. The resident had already lost trust in the landlord’s ability to resolve the ASB and the landlord’s lack of proactive communication was likely to be contributing factor to the resident’s perception of the situation. The landlord’s lack of proactive communication with the resident was likely to have damaged the landlord and tenant relationship as a consequence and was therefore inappropriate. 
  10. The landlord conducted the ASB risk assessment on 6 May 2022. The landlord’s ASB strategy sets out to conduct a risk assessment with the reporter of ASB to determine an appropriate course of action and timescale for response. While the landlord’s ASB procedure does not specify a timeframe for the risk assessment to be conducted, in this case, it had applied a level 2 grade to the ASB. This meant it should contact the reporter of the ASB within 5 days. It is therefore reasonable to conclude the timeframe in this case was to conduct a risk assessment aligned to the level of grade it had applied to the ASB allegations. While the landlord demonstrated it had due regard to the severity of the incidents, its delay in conducting the risk assessment by 5 months (January 2022 to May 2022) was inappropriate and not aligned to its ASB strategy of a victim centred approach.
  11. The landlord provided the resident with diary record sheets for her to complete on 6 May 2022, in order to build up evidence of the ASB. The landlord continued to monitor the situation and advised the resident further incidents must be reported to it. While these were all positive steps in an attempt to resolve the ASB in accordance with the landlord’s ASB procedure, the landlord’s delayed actions resulted in a missed opportunity to capture potential evidence from an earlier point in the investigation.
  12. There is some evidence, albeit limited, in the landlord’s records to show it liaised with the council’s crime and safety team, and the safer neighbourhood team. It requested to meet with the crime and safety team around May 2022, however, there is no record to evidence a partnership meeting went ahead. The ASB, Crime and Policing Act 2014 sets out that police, local authority and local agencies that include social housing providers, have responsibilities to tackle ASB effectively. Given the landlord had a joint responsibility and it had committed to take a victim centred approach within its ASB strategy, it was inappropriate that the landlord did not initiate, and was more proactive, to co-ordinate an effective resolution focus with other stakeholders.
  13. The resident did not provide the landlord with completed diary sheets and therefore the landlord closed the ASB case mid-June 2022. The resident did not make contact with the landlord until September 2022.
  14. The resident made contact with the landlord in early September 2022 to ask it to contact the alleged perpetrator’s landlord and request a rubber seal was placed on a neighbour’s door to stop it banging. The resident also provided the landlord with CCTV footage of alleged incidents of noise. While the landlord made contact with the neighbour’s landlord to make them aware of the incidents and request, it did not receive a response. Further, the landlord was aware of who the neighbour’s landlord was in January 2022, but it failed to contact its counterpart until September 2022. This delay of 8 months was inappropriate.
  15. The resident contacted the landlord at the end of January 2023 as she did not feel the landlord had done enough to resolve the ASB. The landlord responded to the resident early February 2023 at stage 1 of its complaints process  It acknowledged the resident had contacted her MP in April 2022 to assist in resolving the matter. The landlord explained its previous actions that included opening an ASB case, evidence gathering, its liaison with the council’s crime and safety team and its attempts to contact the landlord of the property. It agreed to make attempts to contact the neighbours landlord again. It partially upheld the complaint because it said it could have advised the resident of its complaints process sooner. However, it failed to identify its failings about its handling of the ASB.
  16. The resident contacted the landlord mid-February 2023 as she remained dissatisfied with the landlord’s actions. The landlord arranged a visit to the resident’s home on 23 February 2023. The landlord recorded it did not smell cannabis on that occasion. The resident made an allegation that drugs may have been delivered to the neighbour property, however, the resident could not substantiate the allegation with relevant details such as dates and times or persons involved in the incidents.
  17. The landlord provided its full stage 2 complaint response on 26 May 2023 when it recapped its case handling as it detailed in its stage 1 response. The landlord reiterated its failure to provide the resident with details of its complaints procedure earlier and how to make a complaint to the owner of the property.
  18. The landlord advised the resident within its stage 2 complaint response that any action it undertakes in relation to ASB must be proportionate to the severity of the allegations and evidence available. It did not believe the threshold for legal action had been met.
  19. The landlord acknowledged the distress the ASB had caused the resident and it said it would continue to contact the neighbour’s landlord to ask them to open an ASB case. The landlord offered the resident £50 compensation in recognition of its complaint handling delay. However, it did not identify any ASB case handling failures.
  20. When the landlord reflected on its ASB case handling after its complaints procedure, it recognised it could have contacted the alleged perpetrator directly in an attempt to raise awareness of the noise from the door in the property and that they contact their landlord directly to report any repair that would be required to their door.
  21. The landlord also acknowledged it could have escalated the case to a more senior officer within its counterpart social landlord to ensure it reached a satisfactory case resolution.
  22. In summary the landlord was restricted in how it could handle the case due to the neighbour not being its tenant. It took some steps to investigate the resident’s ASB allegations, however, it did not always follow its ASB strategy or procedure. This is because it delayed in opening an ASB case and as a result delayed in grading the severity of the ASB and conducting a risk assessment.
  23. The landlord also significantly delayed in establishing contact with the neighbour’s landlord, who was another social landlord, for 8 months. The landlord did not ensure a proactive collaborative partnership action plan was in place to tackle the ASB. For these reasons, the landlord’s handling of the ASB case was inappropriate and the failings identified amount to maladministration.
  24. The failures in the landlord’s handling of the ASB case impacted the resident through distress and inconvenience. An appropriate compensation payment is £400 in order to put things right. This is aligned to the Ombudsman’s Dispute Resolution Principles.

Complaint handling

  1. The resident contacted the landlord in April 2022 to express her dissatisfaction that the landlord was not doing enough to resolve her reports of ASB and implied the landlord was discriminating against her due to her ethnicity. The landlord responded to her 2 days later. However, it did not register a formal complaint. The landlord’s complaints policy states a complaint is defined as “an expression of dissatisfaction, however made, about the standard of service, actions or lack of actions by the landlord. By failing to record a formal complaint, the landlord missed an opportunity to resolve the resident’s dissatisfaction through its complaints procedure at a much earlier point and its failure to do so was inappropriate.
  2. The resident further complained to the landlord on 27 January 2023 and the landlord responded on 7 February 2023. The landlord acknowledged receipt of her complaint 1 working day later and aimed to provide a full response by mid-February 2023. The landlord’s actions complied with its complaints policy of acknowledging a complaint within 2 working days and therefore the landlord acted appropriately in how it registered and acknowledged this complaint.
  3. The landlord provided the resident with a full stage 1 complaint response within 5 working days. This was within the landlord’s 10 working day target and complied with the Ombudsman’s Complaint Handling Code that states landlord’s must respond to stage 1 complaints within 10 working days. The landlord recognised it could have advised the resident of its complaints process sooner and it partially upheld the complaint.
  4. The resident contacted the landlord on 16 February 2023 and asked what the next steps were with the case and for escalation of her complaint. The landlord made arrangements to visit the resident, however, it did not escalate her complaint. Section 5.9 of the Ombudsman’s Complaint Handling Codes states that if all or part of the complaint is not resolved to the resident’s satisfaction at stage 1, it must be progressed to stage 2 of the landlord’s procedure unless an exclusion ground applied. There was no known reason to exclude the complaint from progressing through the landlord’s complaint process and therefore the landlord’s lack of action was inappropriate.
  5. During March 2023, the resident contacted the landlord for an update on the case. The resident said she had escalated her complaint but had not received a response from the landlord. On 17 March 2023, the landlord contacted the resident and told her it could not find her request. On 9 April 2023 the resident contacted her MP for assistance. The resident then chased the landlord for a stage 2 complaint response on 13 April 2023.
  6. The landlord acknowledged the resident’s stage 2 complaint on 26 April 2023, apologised for its delay, and sent its full response to her on 26 May 2023. The landlord acknowledged its failure to provide the resident with details of its complaints procedure earlier and how to make a complaint to the social landlord of her neighbour’s property.
  7. The landlord offered the resident £50 compensation in recognition of its complaint handling delay. However, given the landlord had delayed in registering her complaint from April 2022, delayed by 14 weeks to provide the resident with a stage 2 complaint response, and did not provide her with an update in the interim, this amount of compensation does not fully reflect the landlord’s complaint handling failures.
  8. The Ombudsman’s Complaint Handling Code states that stage 2 complaints must be responded to within 20 working days. Section 5.13 of the code states that exceptionally, landlords may provide an explanation to the resident containing a clear timeframe for when the response will be received and this should not exceed a further 10 days without good reason. Therefore, the landlord’s actions and attempts to resolve its failings did not fully reflect the level of service failure in its complaint handling.
  9. The resident escalated her complaint to this Service and the landlord reviewed the case. The landlord identified failures and concluded it was prepared to offer the resident an increase in compensation from £50 to £450. This was in relation to both the ASB case and complaint handling failures. While this was a positive step to reach resolution on the case, the landlord missed an opportunity to put things right for the resident at an earlier stage through its complaints process.
  10. In conclusion, the landlord failed to register the resident’s complaint from April 2022 when the resident expressed her dissatisfaction to the landlord and believed it was discriminating against her. When the landlord did register the complaint in January 2023, it handled the stage 1 complaint appropriately in accordance with its complaints policy. However, the landlord failed to register the resident’s request for the complaint to be escalated to stage 2 of its complaints process from February 2023 and it did not register the complaint until April 2023. It did not provide its full response until the end of May 2023; 14 weeks later.
  11. The landlord reviewed the complaint after its complaint process had ended. The landlord recognised ASB case handling failings and some of its complaint handling failings. It offered to increase its total compensation offer from £50 to £400. While this was a positive step forward, the landlord missed an opportunity to reflect on its failings as part of its internal complaints process. The landlord’s compensation offer took into account both its ASB case handling failures and the complaint handling failures and therefore it is unclear what element of compensation it apportioned to its complaint handling failings. In recognition of the landlord’s complaint handling failings, it is appropriate for the landlord to compensate the resident £200. This amount of compensation is aligned to the Ombudsman’s Dispute Resolution Principles.

Determination (decision)

  1. In accordance with Paragraph 52 of the Scheme, there was maladministration with the landlord’s handling of the resident’s reports of anti-social behaviour (ASB).
  2. In accordance with Paragraph 52 of the Scheme, there was maladministration with the landlord’s complaint handling in this case.

Orders and recommendations

Orders

  1. Within 4 weeks of this report, the landlord is ordered to write to the resident and apologise for the failures identified within this report. For clarity and closure, and to improve the landlord/tenant relationship, the landlord should explain the non-discriminatory reasons for its ASB case handling failures to the resident.
  2. Within 4 weeks of this report, the landlord is ordered to pay the resident:
    1. £400 in recognition of the ASB handling failures.
    2. £200 in recognition of the complaint handling failures.

This amount of compensation includes the £400 the landlord has offered the resident.

  1. Within 4 weeks of this report, the landlord should provide an update to this Service on whether it has received any recent reports of ASB from the resident, and if so, how it will ensure it works collaboratively with the landlord of the alleged perpetrator. Both landlord’s ASB cases should run concurrently until a satisfactory resolution is reached that is reasonable and proportionate to the ASB and the landlord’s ASB policy.
  2. Within 8 weeks from the date of this report, the landlord should provide its actions in relation to lessons learned from the failings identified within this report. It is noted the landlord has already reviewed the case and identified its failings.
  3. The landlord should reply to this Service with evidence of compliance with the order within the timescale set out above.