Southern Housing (202320180)

REPORT

COMPLAINT 202320180

Southern Housing Group Limited

30 September 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:
1. The landlords handling of the residents reports of anti-social behaviour (ASB) from her next-door neighbour.
2. The landlords contact restrictions imposed on the resident by the landlord.

Background

The resident occupies a 3-bed house under an assured tenancy with the landlord. The tenancy commenced 24 June 2019, the resident lives there with her husband and her two adult children.
The landlord had no vulnerabilities recorded for the resident, however there was correspondence from the resident to the landlord, advising that the resident had developed significant mental health problems, which she attributed to living with the ongoing ASB. This had resulted in her giving up work and receiving support from mental health services. Her daughter had also developed anxiety following an incident with the neighbours daughter and was fearful of leaving the house.
The resident said she had been experiencing ASB from the neighbour since she moved in. This was supported by landlords records, of historical ASB cases being opened back as far as 2020 and dealt with for noise nuisance, with the appropriate warnings to the neighbour issued.
A new ASB case was opened in June 2023, this followed an incident where the resident reported her daughter had suffered a serious assault from the neighbours daughter. She said she had also experienced noise nuisance from the resident, constantly shouting aggressively at her children and that she purposely drives behind them when they are walking down the street. The resident was advised that the neighbour had also made reports of anti-social behaviour from her and her family.
The resident made a formal complaint via the landlords portal, it was not clear exactly what date. She said they were upset with the way the ASB had been handled, the officer allocated, had no empathy with the fact her daughter had been attacked or that they were grieving (loss of residents parents). He was hostile and manipulative about their feelings of frustration. After a decade of living with ASB, she wanted the warning for her behaviour removed and their complaints taken seriously.
The landlord responded to stage 1 of the complaint on 30 August 2023, the complaint was not upheld. In summary it said:
The incident involving her daughter was investigated by the police, and due to insufficient evidence, the police were unable to take any action. As a result there was no justification for it to take any tenancy action. It advised the neighbour had made counter allegations about the resident claiming she deliberately walked in front of their car, threw things in her garden, and made “unsavoury comments”. There was no substantive evidence for the residents claims or the neighbours counter claims as such it was taking no tenancy action against either. In relation to her allegations about the officers conduct, he had reported the environment was hostile when he visited, with family members shouting at him. This was corroborated by a police officer who was in attendance, and it was satisfied that they had acted in accordance with their policy, in issuing the warning.
The resident escalated her complaint, because “the landlord had not looked properly into her case”. She said the neighbours daughter had lied and stating they would not evict the neighbour, meant the landlord had taken her side. She did not agree the WPC was an independent witness as she had also made a complaint about the police. She said she was frustrated and not abusive and it had not taken her vulnerabilities into account.
The landlord provided its stage 2 response on 2 November 2022. A review of the process the landlord had taken when dealing with the residents report of ASB was found to be appropriate. It was satisfied that this and 2 previous cases of ASB reported, had been dealt with in accordance with its policy. There was insufficient evidence of ASB to warrant the landlord taking further action against the neighbour. It also acknowledged it had not responded to the complaint within its target response time, for which it also apologised and offered £50 compensation.

Assessment and findings

Scope

The resident has stated that living with the ongoing ASB and the landlords inaction in dealing with it, had adversely affected her mental health. The Ombudsman does not dispute the residents view on this, but it is not within the remit of the Ombudsman to draw conclusions on the causation of, or liability for, damage to health and wellbeing.
This would be the subject of a personal injury claim, which would ultimately, be determined by the courts, as the courts can consider medical evidence, make legally binding findings and award damages in this regard. As such this aspect of the residents complaint will not form part of this investigation. However, the Ombudsman will consider any general distress and inconvenience the situation caused the resident.
In accordance with paragraph 42a of the Housing Ombudsman’s scheme, the Ombudsman encourages residents to raise complaints with their landlords in a timely manner (usually within 12 months). This is so that the landlord has a reasonable opportunity to consider the issues whilst they are still “live”, and whilst the evidence is available to reach an informed conclusion on the events which occurred.
As the substantive issues become historical it is increasingly difficult for either the landlord, or an independent body such as the Ombudsman, to conduct an effective review of the actions taken to address those issues.
Therefore, whilst the historical incidents mentioned above provide a contextual background to the current complaint, they will not form part of this investigation, this assessment focuses on events following the incident on 8 June 2023 and the subsequent ASB reports.

The landlords handling of the residents reports of ASB from her next-door neighbour.

When assessing complaints about the landlord’s handling of reports of ASB, the Ombudsman’s role is to assess whether the landlord has adequately investigated the reported issues and taken appropriate and proportionate action in line with its policies and procedures.
The landlords tenancy agreement requires that residents including their children must not cause or threaten to cause a nuisance, annoyance, or disturbance to other residents in the neighbourhood.
The landlord has an ASB policy and uses the multi-agency effective ASB case management principles in its approach to tackling ASB.
The resident reported to the landlord on the 9 June 2023, that she was experiencing ASB again, from the neighbour next-door. This followed an incident where the resident said her daughter was the victim of an un-provoked attack from the neighbours daughter. Her daughter was rendered unconscious for a short time and had to obtain hospital treatment.
The landlords ASB policy commits to a risk assessment, informing residents who will be handling their case, agreeing an action plan, and keeping the residents informed on action it takes. In response to the residents report, the landlord opened a new ASB case for the resident on the 14 June 2023 which was appropriate.
Its final stage response referenced that in accordance with its ASB policy, it had completed a risk assessment. While the Ombudsman has no reason to doubt the landlord, it did not provide the risk assessment to this Service, in its evidence bundle.
Statutory guidance promotes the use of risk assessments in cases of ASB as, whilst they cannot provide a definitive assessment of someone’s needs, they can assist in determining an appropriate response. The harm, or the potential for harm to be caused to the victim, is an important consideration for the landlord in determining its approach, particularly as the resident had declared vulnerabilities, as the more vulnerable can be less resilient to anti-social behaviour.
The landlords ASB casework system notes, confirmed the resident was contacted that same day by the landlords ASB team. The officer introduced himself and an action plan was devised and agreed with the resident, in line with the landlords ASB policies and procedures.
The actions included the ASB officer contacting the neighbour to discuss the allegations, contacting any independent witnesses, liaising with relevant partner agencies such as the police, and regular 2 weekly contact with the resident to check in and update.
The agreed action plan appeared to contain fitting and relevant actions but without a risk assessment, this service is unable to determine if the plan and level of contact was appropriate and relevant to the resident’s needs.
The landlord made an appointment with the resident on the 27 June 2023. Although the residents case was discussed, it was arranged predominantly to discuss counter-allegations of ASB against the resident from her neighbour. These included the residents household throwing dog waste into their garden, making unsavoury comments, and walking purposely slowly in front of their car.
The resident took this as an indication that the landlord was not taking the residents allegations of ASB seriously, and that it was siding with the neighbour.
While it might have felt like this to the resident, it was not evident that this was the case. The landlords policy commits to deal with all reports of ASB that affect its residents or are caused by its residents. As such it was obliged to investigate and raise with the resident the counter claims of ASB made against her and her family.
Furthermore as both residents were making allegations and counter-allegations about each other, it was appropriate for the landlord to consider this a neighbour dispute rather than anti-social behaviour.
The landlords records appropriately noted the residents’ concerns that the ongoing ASB from the neighbour was affecting her health, with increased anxiety and her stutter returning. Recording this demonstrated that it had listened and acknowledged the impact the situation with the neighbour was having on her.
In response the landlord continued to consider options available. It suggested looking into noise monitoring equipment, as it was usual for the noise app she previously used, to be blocked once ASB cases had been closed. It suggested the previous restriction not to record audio on her ring doorbell be removed to capture any further threats, which was reasonable.
The landlord also proposed a letter drop to other neighbours to canvass for independent witnesses, which was appropriate. The resident however, had previously discussed with the landlord, her reaction to the neighbour following the alleged assault on her daughter. She admitted to banging on the neighbours door and shouting. An altercation between her and the neighbour had taken place outside which escalated to other family members becoming involved.
In light of this, the landlord made the resident aware, that an unintended consequence of canvassing the neighbours, in her ASB case, might provide evidence against, rather than for the residents case, which was reasonable.
The landlord told the resident early on in the case that it would not be investigating the incident that occurred between hers and her neighbours daughters, which was appropriate. The landlords ASB policy and principles it works to, has a multi-agency approach. In some cases other agencies will have the prime responsibility and powers to act, when they do, the landlords role is to support them to do so.
The incident between the 2 daughters, was not a tenancy matter, it was a criminal matter. It took place in a public space away from the residents property, as a result the jurisdiction to investigate fell to the police. They had the appropriate powers to collate evidence from witnesses and CCTV from local businesses, with the aim to investigate if a crime had been committed.
Records showed the police investigated the incident but determined that they did not have enough evidence to prove that the altercation between the two daughters was an assault on the residents daughter and not a fight between them. As a result no further action was to be taken.
The landlord did appropriately liaise with the police and await the outcome of their investigation in accordance with its ASB policy. When the police determined that there was insufficient evidence to take any further action against the neighbours daughter, the landlord did consider whether it could take action of its own, but it could not.
The landlords tenancy agreement, has a section on “respect for others”. The conditions are designed to prevent its residents and other occupants and visitors to their home, from (amongst other behaviours), physically or verbally abusing or using violence against anyone else in the neighbourhood.
With no further police action there was no evidence of a breach of tenancy, and therefore no grounds to warrant the landlord taking any action against the neighbour. This outcome was understandably upsetting for the resident, but the landlord is required to act within the constraints of landlord and tenant legislation.
Those experiencing ASB often have an expectation that their landlords have the authority to take possession of a neighbour’s property where there is evidence to support the reports of ASB.
In practice, a social landlord does not have the authority to take possession of a property, unless granted this right through a court of law. For a landlord to successfully take any formal action for noise or ASB, such as an injunction or eviction proceedings, it would be required to provide extensive evidence to prove the alleged noise and behaviour of the perpetrator.
When the landlord advised the resident, that the action she was looking for, which was the eviction of the neighbour, “would not happen”. The resident complained that the landlord had automatically sided with the resident.
It is understandable why she would think this, but it was not evident that this was the case. The landlords ASB officer would have specialist experience and training in dealing with neighbour disputes and ASB matters.
The types of ASB incidents the resident was experiencing from next door, was the neighbour shouting at her children day and night, her guests leaning on their car, driving behind them in the street, staring at them and damaging the fencing trellis. While living with this behaviour was upsetting and stressful for the resident, these were acts that can be very difficult to prove are ASB.
The landlord would have been aware from its experience, that it was unlikely that it would be able to secure a possession order or injunction in the residents case. The reports, were likely to be considered ‘low level’ ASB by the courts, who are rightly cautious in taking away people’s homes. They usually only award in the landlords favour in the most extreme cases, which are supported with vast amounts of evidence.
The meeting at which this was discussed, it was reported levels of frustration were running high, had they not been, this might have been better explained and understood. Nevertheless, the landlords information and advice on the limitations it had for enforcement action or possession was correct, and although this was disappointing for the resident to hear, it was appropriate for the landlord to share, to manage the residents expectation.
The resident was unhappy with the ASB officer dealing with her case. She said she felt he lacked empathy, was hostile towards her and manipulative about their feelings of frustration. They said they felt unsupported.
The landlord investigated the residents allegations. It reviewed the ASB records and file notes. It also contacted the police who had been present at the joint visit. This was an appropriate response by the landlord.
Its findings were, that the officer had followed its policy and procedures, it noted he had, had to have difficult conversations with the residents about their own behaviour. Safeguarding referrals and mental health support had been offered, (although declined) to her and her daughter. The police had confirmed that in their view the officer was “professional” throughout the meeting.
The landlord found nothing to support the residents allegations about its officer, so the decision not to uphold the residents complaint was reasonable.
It was also evident the landlord had stayed in contact with the resident while the case was ongoing. It had considered all matters the resident brought to its attention during this period, and appropriately advised the resident whether or not it was able to use the information provided and why.
The landlord demonstrated that it had continued to consider options to assist the resident. It recommended a sound app or noise recording equipment, which would allow the resident to capture and evidence any noise they experienced, which could then be assessed to determine if statutory noise nuisance was being committed.
It also obtained permission for expanding the restricted range imposed on the residents CCTV, to support her in collating future evidence of ASB and harassment, which was reasonable.
The landlord wrote to the resident, July / August 2023,(the exact date was unclear). It provided a detailed investigation outcome, for the ASB it had investigated between the resident and her neighbour. It clearly set out that there was insufficient evidence and why, to take action for ASB against both the resident or her neighbour. It re-iterated that the police led the investigation into the incident with her daughter, and the lack of evidence from the police investigation, meant the landlord was unable to take action against the neighbour either.
The correspondence also notified the resident that the current ASB cases were being closed. It advised the resident and her family not to approach the neighbours or to act in any way that might be deemed harassment or antagonistic towards the neighbours. It advised the same advice had been given to the neighbours (which has been evidenced), all of which was appropriate.
The landlord set out how to report any new incidents of ASB in the future. It confirmed the increased scope of her ring doorbell had been agreed and hoped that would make her feel more secure. It confirmed that it did not have a housing transfer list, all moves were undertaken by the local authority. It provided the resident with links and details how to progress this ,which was reasonable.
The Ombudsman realises this was not the outcome the resident was hoping for and does not underestimate how disappointed she would have been. It is clear that the neighbours behaviour has had a significant impact on the resident and her family. However, the incident with the residents daughter was a criminal matter and not a tenancy matter, which was not for the landlord to investigate.
Overall based on the evidence seen, the Ombudsman is of the view that the landlords handling of the residents reports of ASB has been satisfactory. The reports of ASB were responded to in a timely manner and in accordance with the landlords ASB policy and guiding principles.
The Ombudsman has however, identified one shortcoming which was the absence of a risk assessment it was not known whether this was not carried out or just not provided to this service. While it is acknowledged a formal action plan was devised and agreed, guidance requires a risk-based response. In the absence of a risk assessment it was difficult for this service to determine the reasonableness of the action plan and whether it fully met the resident’s needs.

The contact restrictions imposed on the resident by the landlord.

In October 2023, the resident was advised by the landlord that access had been restricted due to the family’s behaviour towards staff. They were advised they could contact the landlord via an allocated email address, or through the portal. All further visits would be carried out by 2 members of staff.
The resident disputed that their behaviour was unacceptable, maintaining that they were frustrated but not aggressive.
The role of the Ombudsman is not to establish whether incidents which led to the contact restriction occurred or not. Our role is to establish whether the landlord’s response to the resident’s concerns about the contact restriction was in line with its legal and policy obligations.
The Ombudsman acknowledges the right of all employees to work without fear, aggression, and abuse.
The landlord has an unacceptable behaviour policy, which sets out its approach to managing unacceptable behaviour from residents towards its staff. The landlord defines unacceptable behaviour as:
1. Abusive or aggressive behaviour towards colleagues or contractors
2. Unreasonable demands or expectations
3. Unreasonable persistence.
The landlords policy accepts a resident may feel angry about the circumstances for which they are in contact with the landlord, but will not accept when anger escalates into aggression towards staff.
Aggressive behaviour in the policy is not limited to acts that may result in physical harm. It also includes behaviour or language that may cause colleagues to feel afraid, threatened, or abused. Some examples given include threats, shouting, rudeness, inflammatory statements, and unsubstantiated allegations against staff.
The policy also states that it understands residents “may act out of character in times of distress or worry; this doesn’t mean their behaviour should automatically be considered unacceptable”.
Following a joint visit with the police, to the residents home on 11 July 2023, the landlords officer reported the environment as hostile. He described various members of the family being angry and confrontational towards him. He said there was shouting at him and each other, as well as a threat “to throw the ASB policy in his face”.
The landlord, has a duty of care to its staff when it is made aware a member of staff felt abused or threatened, and as it states in its policy it will not tolerate anger turning into aggression. If a member of staff has said they felt abused or intimidated by a residents behaviour, the landlord is obliged to act.
Following the outcome of the visit, the landlord made the decision to implement the processes in its unreasonable behaviour policy, which was appropriate.
In the first instance it says the landlord will explain to the resident or customer why they find their behaviour unacceptable and allow them the chance to change the behaviour. If the behaviour continues, the action will escalate to a written warning.
There was no evidence in the file notes that the family were warned about their behaviour during the visit. This however was not unreasonable; staff have to weigh up the risks when in a situation out on site. When in a residents home it is recommended that they always act to diffuse rather than inflame the situation for their own safety. Challenging the behaviour at the time could have inflamed the situation.
In accordance with its policy guidelines, we would have expected to see some evidence of a call or email soon after the visit explaining that their behaviour was not considered acceptable and why. Followed by an explanation of the potential consequences of the escalation process, written warning, restricted access, and potential possession proceedings. This was not evident.
The policy also states that the landlord recognises a resident’s actions might be affected by a vulnerability such as a mental health condition. Before any formal action is taken it commits to carrying out an equality impact assessment (EIA). This is to identify any protected characteristics, understand how best to manage the resident or customer’s particular needs or decide if these needs could be met in any other way.
The resident had informed the landlord previously that she had developed mental health problems, and it had been in contact directly with her mental health support worker, who had explained the impact the situation with her neighbour was having on her. The Ombudsman accepts that the behaviour in question was not limited to just the resident, but it was not evident at all, that the residents mental health had been considered or an EIA completed, early in the process or prior to the restricted access being imposed.
Following the visit the landlord issued a formal written warning to the resident. This omitted the parts of the process where behaviour is discussed, and the residents have a chance to address their behaviour. As this did not align with the process set out in the landlords policy, this was a service failure.
The Ombudsman has set out earlier, the time parameters for the scope of this investigation. Although we are not looking back at historical matters, some older records in relation to ASB have been provided. We acknowledge the records we have are limited, but in those seen, there was interaction between the resident and the landlord, which did not indicate that the behaviour of the family had been an issue before.
The correspondence seen in relation to the current issue of behaviour also did not indicate any patterns of unreasonable behaviour or any previous incidents prior to the behaviour at this visit.
If there had been no previous concerns about the residents behaviour, it could have been considered that the distress and worry about the incident with their daughter and the resulting situation, was a trigger for the behaviour.
It was evident that the family were under immense stress, following the incident with their daughter. From their perspective their daughter had suffered a serious assault, the perpetrator was living next door, and no action was being taken. The resident had told the landlord that their daughter had been badly affected, she had developed anxiety and was afraid to leave the house.
There was no evidence that the residents previous behaviour or potential changes of behaviour were discussed or considered by the landlord, prior to issuing the warning or implementing the restrictions. Doing so would not necessarily have changed the outcome or prevented the landlords from taking action, but it would have demonstrated the policy had been adhered to.
It was also noted that the officer who experienced the unreasonable behaviour, made the decision, and issued the written unreasonable behaviour warning. While this was not a service failing, as the policy does not specify who can or cannot issue the warning, it would be appropriate for a decision like this to be discussed and authorised by a more senior officer, prior to any action taking place. An independent overview would ensure the behaviour experienced was inappropriate as per the policy and not open to challenge.
There was a further incident in relation to the family’s behaviour in October 2023. Another member of staff felt abused by the resident and her son in a telephone conversation on 19 October 2023. This call was witnessed by a manager and the decision was made to put restricted access in place.
Notwithstanding the previous omission already identified earlier in the process, the landlord was within its rights to implement its unacceptable behaviour policy. The landlord has a duty of care to its staff, the behaviour was determined to be unacceptable by the landlords officer and manager. The necessary written warning had previously been issued so in accordance with the landlords policy, the action of restricting access could reasonably be put in place.
However no restrictions on access to service should be indefinite. The residents behaviour should be monitored for a period of time and a review of the decision to restrict access should be undertaken within a reasonable time period.
The landlords policy acknowledges this, it states that the action it may take includes “restricting the way and/or how often a resident contacts us, for a specified period of time”. It commits to not setting restrictions indefinitely, and that residents will be written to, advising how often the decision will be reviewed, but it would always be within a 12-month period.
The landlords letter of the 26 October 2023, did not allocate a time period for this restricted access, implying it was indefinite, and it did not advise the resident when it would be reviewed. This did not align with policy so was therefore a service failure.
The policy also sets out that a resident has a right of appeal against any formal restriction, or other actions taken. The appeal must be in writing, setting out why the resident feels the decision is not justified, within 20 working days. An independent manager will review the appeal and respond within 10 working days.
The Ombudsman would expect to see the above information set out in any correspondence to the resident in relation to formal action taken. There was no appeal information in the letter containing the formal warning in July 2023. The information on the residents right to appeal in the restricted access letter of 26 October 2023, only refers the resident to the landlords complaints procedure and does not set out how and in what timescale this needs to be submitted.
It was evident that the resident had disputed that her behaviour was unreasonable, she had challenged the formal warning and the decision to restrict her access. There was no evidence that this had been referred to an independent manager in accordance with the policy, or a response given within 10 working days.
The Ombudsman accepts that a landlord has to balance the right for its residents to be heard with the right for its staff to work without fear and intimidation. Adopting an unreasonable behaviour policy was an appropriate step to administering that balance.
However it is the Ombudsman’s view that overall the landlord did not appropriately adhere to its unreasonable behaviour policy, in its management of the residents behaviour.
This was because the landlord could not demonstrate it had given due consideration, to the residents vulnerability or the distress and worry they were experiencing following the incident with their daughter. Due process was not followed, and the resident was not correctly advised on their rights and the process of appeal.

Determination

In accordance with paragraph 52 of the Housing Ombudsman’s Scheme, there was no maladministration in the landlords handling of the residents reports of anti-social behaviour from her next-door neighbour.
In accordance with paragraph 52 of the Housing Ombudsman’s Scheme, there was maladministration in the landlords handling of the contact restrictions imposed on the resident by the landlord.

Orders

The Ombudsman orders that within 4 weeks the landlord:

Apologises to the resident for the failings identified in the investigation.
Pays the sum of £300 for the distress and inconvenience caused to the resident by the landlord not implementing its unreasonable behaviour policy properly. This is in addition to the £50 previously offered for complaint handling failures (Total £350),
Advises the resident of a date when it will be reviewing its decision on her restricted contact with its service.

Recommendations

The Ombudsman recommends that the landlord amends its unreasonable behaviour policy to includes independent oversight by a senior officer, of any decision to implement formal action in relation to unreasonable behaviour.
In the absence of a completed risk assessment the Ombudsman recommends the landlord self-assesses against the Ombudsman’s Spotlight report on Knowledge and Information Management. Clear record keeping and management is a core function of an ASB service, not only so that evidence can be provided to the Ombudsman when requested, but records also serve as evidence in any external processes which the resident and landlord may engage in.