Housing 21 (202212288)

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REPORT

COMPLAINT 202212288

Housing 21

26 September 2023

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. handling of allegations of antisocial behaviour (ASB) made against the resident;
2. complaint handling.

Background

The resident is a tenant in a retirement living scheme with the landlord. The resident has health conditions.
In January and February 2020, the landlord’s court manager, and contract gardener and cleaner for the resident’s living scheme, as well as a visiting engineer, made allegations that the resident’s behaviour towards them amounted to ASB, which followed earlier ASB allegations by other visitors. The court manager alleged behaviour including that the resident was “sexually harassing” them by looking them up and down and laughing and pushing past them while making contact with their body, that included causing them injuries, as well that he was silent towards or ignored them, and used insulting language.
The gardener alleged they were being watched and followed by the resident, and that this was intimidating, as well as that he laughed and pointed at them. The cleaner also alleged that the resident followed and watched them, and that this was intimidating, as well as using insulting and aggressive language about the court manager, and watching and criticising the gardener. The visiting engineer additionally reported that the resident had been “abusive” towards them, without providing any further information. The landlord therefore issued the resident with a tenancy warning on 20 January 2020, warning him against breaching the terms of his tenancy by causing nuisance through a lack of proper consideration towards the court manager, and intimidating and unreasonable behaviour towards the gardener.
Between February and March 2020, the landlord unsuccessfully attempted to arrange a meeting with the resident to discuss the allegations against him. The resident was then offered a meeting with it on 28 August 2020 but he declined it. In September 2020, the landlord sent several letters to the resident requesting his response to the allegations made against him.
The resident made a formal complaint on 26 and 29 September 2020. He complained about the court manager and gardener, disputed the allegations, and said the landlord had provided no evidence to support them, but that he could provide witnesses and evidence to dispute them. In addition, he expressed concern about the retirement housing manager (RHM) investigating the matter, as he felt there was a conflict of interest since he had made a complaint about them in the past. In October 2020, the landlord carried out initial investigations and asked the resident to provide his evidence.
The landlord issued its stage 1 response on 6 November 2020. It did not uphold the complaint. In summary, it said the resident had not responded to its requests for evidence and that without this a formal investigation into the complaint could not take place. Subsequently, in November 2020, the resident twice wrote to the landlord to address the ASB allegations made against him, and 2 other residents made statements that the resident did not carry out the earlier ASB alleged against him, or use aggressive language about, look up and down at, or laugh at the court manager.
On 25 January 2021, the landlord issued the resident with an informal tenancy warning, as it considered the resident had demonstrated behaviour towards the court manager and the contract gardener that it classed as ASB, contrary to his tenancy conditions, after it had sought his evidence and to meet with him about this.
On 14 April 2021, the landlord wrote to the resident about his dissatisfaction with the allegations, as he felt that not all of the evidence was considered. The resident said that he had already sent in his evidence to it, and that he was expecting to receive copies of the evidence alleging ASB against him. The landlord suggested that an independent RHM carry out a review of the landlord’s process and handling of the matter.
On 4 June 2021, the outcome of this independent RHM review was sent to the resident by the landlord. It acknowledged there was failing in its process, and that the tenancy warning letter sent on 25 January 2021 did not follow its ASB policy, nor did it set out clearly the evidence that the landlord had. It also apologised that it took 9 months to respond to the resident’s enquiries and offered £100 compensation for any undue stress caused.
Following a director review of another complaint in July 2021, the landlord said the resident could escalate issues relating to the original complaint, which he did on 15 November 2021 regarding its court manager, contract gardener, and the ASB allegations against him. The landlord acknowledged this request on 29 November 2021.
The parties then exchanged correspondence from November 2021 to January 2022. This was about the resident seeking to provide the landlord with further evidence, and him seeking complain that its tenancy warnings to him should be rescinded, that there was a conflict of interest in the RHM’s investigation, its handling of his supporting evidence for his stage 1 complaint, and the level of service provided by the gardener. He said that the gardening service being paid for had not been provided, and that the gardener had only taken action after he had complained.
A stage 2 (director’s review) response was issued by the landlord on 9 March 2022. In summary, it said that:
1. It had not investigated the resident’s stage 1 complaint appropriately, including by not reviewing the information it had on file about this. The landlord had also not responded to his correspondence in a timely manner. In recognition of this, it apologised and offered a goodwill gesture of £50.
2. It saw no conflict of interest in the area RHM investigating the resident’s concerns, as there was no open complaint from him against the RHM, or other specific reason for them not to investigate the matter.
3. It considered the informal warning letter issued to the resident in January 2021 was appropriate in the circumstances after it had reviewed the available evidence and witness statements regarding this.
4. The length of time the resident’s case was open was unacceptable and it apologised for this.
5. Should the resident wish to move home, it would provide a satisfactory reference for him to a potential new housing provider that would raise no concerns with them.
6. The contract gardener was not employed by the landlord, but by its contractor, and so it considered it was not within its jurisdiction to investigate a complaint made about them. It instead offered to look into changing gardener contractors if residents collectively wanted to do so, and that it would assist with the next tendering process for their contract to be clear and transparent, which would be decided by residents.
7. It offered mediation between the resident and court manager for the breakdown in their relationship.
8. It would learn from outcomes and ensure training for all of its court managers and operational teams around its ASB process and complaint handling. Additionally, it had introduced a new structure, with a new regional operations manager covering a smaller areas, to provide better, more frequent, and more accessible support for court managers and residents, while the RHM and regional head of retirement housing no longer worked for it.
The resident referred his complaint to the Ombudsman on 8 September 2022. He remained dissatisfied as he felt false ASB allegations had been made against him, that there was a conflict of interest in the RHM investigating this, he was unhappy with its handling of his stage 1 complaint, he wanted to complain about the court manager and the contractor gardener, and that the landlord did not follow its ASB policy. As a resolution to his complaint, the resident wanted the Ombudsman to investigate and make decisions on the landlord’s handling of these matters. Further, he wanted both the previous and the subsequent informal tenancy warnings rescinded and requested a letter of apology from the landlord.

Assessment and findings

Scope of investigation

The Ombudsman acknowledges that the resident raised a number of complaints with the landlord. The Ombudsman considers there was overlap of issues between multiple landlord complaint references, some of which we have previously investigated. This investigation will therefore not consider matters previously investigated by the Ombudsman, as we may not do so under the Housing Ombudsman Scheme, and will instead focus on the resident’s complaint about the landlord’s handling of the above allegations of ASB made against the resident, and its related complaint handling.
The role of the Ombudsman is also not to establish whether or not the reported ASB occurred, or to order that warnings about this be rescinded. This is because, in accordance with the Housing Ombudsman Scheme, we may not investigate complaints where the resident is seeking an outcome that is not within our authority to provide, and we do not have the authority or expertise to establish whether ASB occurred, or to order that warnings about this be rescinded. Our role is to instead establish whether the landlord’s actions in respect of its concerns over the resident’s behaviour were in line with its ASB policy, and whether its actions were fair in all the circumstances of the case.

Tenancy agreement and policies

The resident’s tenancy agreement sets out that the resident must show proper consideration towards court managers, and must not cause harassment to neighbours, landlord staff, its agents, or its contractors. The resident’s handbook outlines the options available to the landlord to help it prevent or manage ASB including a number of non-legal actions. These include a verbal warning, warning letter to perpetrator, mediation, and acceptable behaviour contracts.
The landlord says it will take a tough approach to anyone who directs ASB at its staff, and may intervene immediately against the perpetrator without taking non-legal preliminary steps, and may seek an injunction or possession. The landlord will take a complaint made by its court manager very seriously.
The landlord’s ASB policy states that it is the role of a court or housing manager to set up a case and investigate alleged ASB, and that it is focused on protecting its staff by challenging, stopping or changing the offending behaviour “with the least formality”. It also acknowledges that some residents may be discourteous towards its staff, which should not be treated as ASB unless it is done repeatedly and routinely. Its policy also states that an ASB action plan should be produced and that all actions are to be based on regular review and should be reassessed every 3 months.
The landlord’s compensation policy and guidance details when discretionary compensation will be considered. It states that compensation may be appropriate where the landlord has failed to provide a service or where a lack of service has resulted in a resident believing they have suffered distress or a loss as a result of its action or inaction. Compensation can be awarded for distress or inconvenience that may have resulted from the landlord’s service failures. The level of compensation will be proportionate to the inconvenience, stress, disturbance or annoyance suffered. For not responding reasonably to an ASB complaint, the landlord would consider compensation up to £100.
The landlord has three categories when considering awarding compensation for identified service failures, depending on the severity of the service failure. They are as follows:
1. Low impact, where compensation up to £20 will be awarded for one instance of inconvenience caused;
2. Medium impact, where compensation between £20 to £100 will be offered for a succession of service failures with a problem not resolved within a reasonable timescale; and
3. High impact, where compensation between £100 to £500 will be considered for cases of serious or prolonged service failure or loss of facilities resulting in severe distress, disruption, inconvenience or loss of income.

The landlord’s handling of allegations of ASB made against the resident

When carrying out an investigation following a report of alleged ASB, the landlord should ensure that, when conducting interviews with complainants and alleged perpetrators alike, it and its staff adhere to the principles set out in the landlord’s ASB policy. The landlord must treat both the alleged victim and alleged perpetrator fairly and consider all evidence in an even-handed way. Its policy has an emphasis on remaining respectful and professional at all times.
The Ombudsman is not in a position to determine the alleged actions of the resident, especially as there is no conclusive evidence to support either party’s version of events. When there are conflicting accounts of what happened, with insufficient evidence to confirm either way what events took place, it would not be possible for the Ombudsman, as an independent organisation, to arrive at firm conclusions on the specifics. Instead, in the absence of such evidence, our role is to consider all the circumstances of the case and reach conclusions on whether the landlord’s actions were fair and reasonable, and in accordance with its policies and procedures.
The landlord’s ASB policy states that it should create an action plan and should carry out a risk assessment when ASB has been reported. It is unclear if an action plan was formed or a risk assessment carried out regarding this alleged ASB because no evidence of this was provided by the landlord, and this is a failing on the part of the landlord, as doing so may have helped identify the most appropriate option for managing the situation.
In response to an allegation of ASB made against a resident, the landlord should take appropriate steps to establish the facts and if there were any witnesses to the alleged incidents. The resident asserts that the landlord did not interview any of his witnesses. While it is unclear if the landlord interviewed his witnesses, it is noted that, following good practice, it attempted on several occasions to arrange a meeting with the resident. The resident instead chose to provide his comments on a list of allegations that had been made against him. The Ombudsman notes, however, that the landlord’s records indicate it faced challenges with staff sickness, as well as the nationwide COVID-19 pandemic at this time.
There was a significant period of time between the allegations being made in January and February 2020 and the landlord commencing its investigation into the matter by requesting his response to the allegations against him in September 2020, following its unsuccessful attempts to meet with him in February to March and August 2020. This appears to have arisen because of delay by a staff member in providing a response to the resident’s enquiries regarding the allegations. Additionally, the resident had an expectation that the court manager’s and contract gardener’s statements and evidence would be provided to him to examine, which was not the case.
The landlord acknowledged failings in its independent RHM review of 4 June 2021, and offered £100 compensation for the length of time it had taken to respond to the resident’s enquiries. It was reasonable in the circumstances for the landlord to only provide a summary of the allegations made against him because its ASB policy permitted it carry out such non-legal investigations and actions “with the least formality”, and did not require it to provide him with witness statements against him at this stage in the way that a legal process might.
However, the landlord should have made it clear to the resident at the outset that this was its intention, especially given the number of similar parallel complaints the resident had made at that time. Indeed, the landlord acknowledged in a letter dated 14 April 2021 that it could have been clearer about the overall process, and also clarified much sooner what information it would provide to the resident.
The landlord acknowledges that the resident felt that, since the RHM was involved in a previous complaint, if they investigated the matter then there would be a conflict of interest. Although the landlord noted in response that there were no open complaints from the resident against the RHM and so they continued to investigate and respond to the ASB allegations against him, which its ASB policy did not prevent it from doing. Nevertheless, it still engaged an independent RHM to carry out the review of the first RHM’s investigation and issue a response in June 2021, therefore addressing his concerns about this, and so this approach was satisfactory.
The landlord also acted appropriately in providing the resident with an opportunity to respond to the allegations against him, and to provide his own evidence to dispute them. Its records indicate letters were sent to him to do so on 7 and 22 September and 20 November 2020. The Ombudsman recognises that the resident sent letters to the landlord dated 25 and 26 November 2020 in which he addressed the allegations. Additionally, he provided statements from 2 other residents at that time, asserting that the earlier ASB allegations against him were untrue, and that he had not used aggressive language about, looked up and down at, or laughed at the court manager.
The landlord issued the resident with a tenancy warning on 20 January 2020, and an informal tenancy warning on 25 January 2021. The resident remained dissatisfied and stated the ASB process was unfair, and that the warnings were not appropriate, and that he felt all evidence had not been considered, requesting that the warnings therefore be rescinded by the landlord. Subsequently, the landlord carried out the independent RHM review of its ASB process and handling of the resident’s case on 4 June 2021. This review was therefore an example of good practice on its part, and demonstrated a willingness to look into the resident’s concerns about both its handling of his case and its wider ASB process.
Further to the resident’s stage 1 complaint in September 2020, the landlord requested further information which it did not receive in its set timescale. It then issued an ASB warning letter to him on 25 January 2021. Its policy states that it should treat reports about a resident’s behaviour as ASB if the relevant type of behaviour is carried out repeatedly and routinely. There were a number of separate allegations made against the resident, and evidence to the contrary was not provided by the resident, whose meeting with the landlord about this did not take place.
In cases of allegations and counter-allegations made where there is a lack of evidence to support formal action for breach of tenancy, the landlord is limited in the steps it can take to resolve the issues. In this case, the landlord has made efforts to gather evidence, for example by taking statements from those directly involved, and by informally warning the resident, as permitted by its resident’s handbook and ASB policy . However, the resident asserts no other residents were interviewed.
It is noted the landlord also provided the resident with an opportunity to provide evidence to support his complaint and address the allegations made against him, and that it received statements from 2 other residents in support of him. The landlord nevertheless reasonably concluded that, in the absence of conclusive evidence from the resident that he had not breached his tenancy agreement’s requirements that he show proper consideration to its court manager and not harass others, its non-legal action of tenancy warnings on the basis of the available evidence was a satisfactory approach to take.
To be clear, the Ombudsman is not making a statement that the ASB alleged against the resident did or did not take place, it not being within our remit to determine. Rather, we are acknowledging that, given that allegations were made which were supported by separate witnesses, and conclusive evidence to the contrary was not provided by the resident, who declined to take part in meetings, it was not unreasonable for the landlord to issue an informal warning to the resident. This is because its policies and procedures allowed it to do so for such alleged ASB against its staff and contractors.
The Ombudsman also recognises that the landlord has said in its stage 2 response that is willing to provide a satisfactory reference for the resident for a potential new housing provider, which would raise no concerns about him. Therefore, while he has expressed concerns about its tenancy warnings to him for the alleged ASB, which he has asked to be rescinded, the landlord’s offer of such a reference should mean that these will not prevent him from moving to a potential new housing provider
With regard to the allegations made against the resident by the landlord’s contract gardener, it is noted that the resident had previously made a complaint about the gardener and the quality of their work in tending the grounds. In its stage 2 response, the landlord said the gardener was not its employee and it was not within its jurisdiction to investigate a complaint against the gardener. The landlord subsequently informed the Ombudsman that this part of its response was poorly worded, as the landlord does in fact manage complaints made about its contractors. This error was a failing on the part of the landlord.
Where there are acknowledged failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord has put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this, the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: be fair, put things right, and learn from outcomes.
The landlord has demonstrated a desire to learn from its outcomes and to improve the service it provides to its residents, in that it has commissioned an independent RHM-led review of its policies and processes in regard to ASB, and will ensure that training is carried out specifically in relation to ASB. While it is noted that some staff members, including the RHM and regional head of retirement housing, have since left the organisation, the landlord should ensure that the lessons arising from this complaint are taken on board by any new staff. Therefore a recommendation has been made about this below.
The amount of £100 compensation offered for the delay in the landlord responding to the resident’s queries, and the length of time the ASB case was open, is at the high end of the landlord’s compensation policy and guidance’s scale of suggested amounts for medium-impact complaints. This is as well as being the compensation policy and guidance’s suggested compensation for failings in its handling of an ASB complaint, and in line with the Ombudsman’s remedies guidance’s recommendation of compensation from £100 for failures that adversely affected the resident.
The resident’s case was not a low impact complaint, under the landlord’s compensation policy and guidance, because it was not a single instance of inconvenience. This was instead at least a succession of service failures with a problem not resolved within a reasonable timescale, if not a case of serious or prolonged service failure that resulted in severe distress, disruption, inconvenience or loss of income, requiring compensation of up to £100 or more under its compensation policy and guidance. Therefore, in this case, the landlord’s offer of £100 compensation was proportionate in the circumstances, as it recognised the undue distress this may have caused the resident, and it wanted to acknowledge that it was not its intention. This was a satisfactory approach to take.
The landlord should nevertheless also have shown a willingness to assist the resident to resolve the dispute by offering mediation between the court manager and the resident at an earlier date. This would have been appropriate given the nature of the incidents, but does not appear to have been offered until 9 March 2022 in its stage 2 response. This was almost 18 months after the resident first made a complaint about the allegations made against him in September 2020. The landlord cannot be responsible for ensuring that ASB does not occur but it is expected to take appropriate action in response to a resident’s concerns. In this case, mediation could have been offered to the parties concerned sooner, and should have been considered in accordance with its resident’s handbook.
Therefore, the Ombudsman has identified further failings in the landlord’s handling of the ASB allegations against the resident, and so the compensation offered was not proportionate to the adverse effect the failings had on the resident. In particular, there was no evidence the landlord formed an action plan or risk assessed the alleged ASB. Moreover, it failed to consider the resident’s complaint about the contract gardener’s complaint, which it confirmed with the Ombudsman it should have done, and so it has been ordered to do so below.
Overall, there was failure in the landlord’s handling of allegations of ASB made against the resident, which it has been ordered to apologise to him for below, as well as to pay him the £100 compensation that it previously offered him for this, if he has not received this already. It has also been ordered below to pay £50 further compensation for its failure to consider his complaint about its contract gardener. Awards from this amount are recommended by the Ombudsman’s remedies guidance for landlords’ failures when their offers of compensation do not quite reflect the detriment to the resident, or are not quite proportionate to the failings identified by our investigation.

The landlord’s complaint handling

The landlord operates a 2-stage complaint process under its complaints and compliments policy and procedure. In the event a complaint cannot be resolved without investigation, the landlord aims to provide a stage 1 response within 10 working days. If the complainant is not satisfied with the stage 1 complaint, they may request an escalation. The stage 2 investigation is undertaken by an executive director for the appropriate business stream. At stage 2, the landlord aims to provide a response within 20 working days.
The resident made a formal complaint about the allegations made against him on 26 and 29 September 2020. The landlord carried out initial investigations, during which it requested further information from the resident within 10 working days on 9 October 2020, and again on 26 October 2020. Having received no response to its requests, it issued its stage 1 response on 6 November 2020 and did not uphold the resident’s complaint, which was not unreasonable given the absence of appropriate evidence from the resident.
This is despite the stage 1 response being 18 days later than the landlord’s complaints and compliments policy and procedure’s 10-working-day stage 1 response timescale. The Ombudsman however notes that the resident had hospital appointments including a major operation following his formal complaint, which may have affected his ability to reply, and therefore the landlord’s.
On 15 November 2021, the resident asked to escalate the complaint and a stage 2 director’s review was issued by the landlord on 9 March 2022. While this was 59 working days outside its complaints and compliments policy and procedure’s 20-working-day stage 2 response timescale, the delay arose from the resident’s provision of further information, as the landlord sought further clarity into what the resident wanted looked into.
Given the nature of the resident’s complaints, and that a number of complaints had been previously raised which may have overlapped, this was reasonable for the landlord to do. The landlord received the resident’s evidence in early February 2022. The delay in the stage 2 response therefore also cannot be attributed to the landlord, and overall its formal complaint response times were satisfactory.
The landlord acted fairly by acknowledging there was a delay in its stage 1 response and a failure to investigate fully at stage 1 by not considering all the documents available to it. It offered an apology and compensation of £50 to ‘put things right’. This was in line with the Ombudsman’s own remedies guidance, which suggests an award of compensation from £50 where there has been a failure which had an impact on the resident, but was of short duration and may not have significantly affected the overall outcome for the resident. This is because the landlord subsequently arranged its independent RHM’s review of its handling of the ASB allegations against the resident on 4 June 2021, which put things right in relation to its failure to investigate this fully at stage 1.
Moreover, the landlord investigated a number of different issues with different complaint refences, and it appropriately separated out issues that had been previously investigated. It also provided the resident with an opportunity to escalate this complaint across another reference. This further illustrated the landlord’s willingness to find an amicable solution to the resident’s concerns, using its complaints procedure in the attempt to resolve the complaint satisfactorily.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of allegations of ASB made against the resident.
In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, the landlord has offered redress to the resident prior to investigation which, in the Ombudsman’s opinion, resolves the complaint about its complaint handling satisfactorily.

Orders and recommendation

The landlord is ordered to:
1. Write to the resident within 4 weeks to acknowledge, explain and formally apologise for the further failings in its handling of allegations of ASB made against him identified by this investigation.
2. Pay the resident compensation totalling £200 within 4 weeks, which is broken down into:
  1. £50 for not investigating his complaint about the gardener and failings identified in its handling of the alleged ASB in this case.
  2. £100 that it previously offered him on 4 June 2021, if he has not received this already.
  3. £50 that it previously offered him on 9 March 2022, if he has not received this already.
3. Write to the resident within 4 weeks formally responding to his complaint about the contract gardener since it has confirmed that contract workers fall within its complaint management responsibility.
It is recommended that the landlord should carry out refresher training with staff to ensure that it responds to reports of ASB appropriately and in accordance with its relevant policies and procedures.
The landlord shall contact the Ombudsman within 4 weeks to confirm that it has complied with the above orders, and whether it will follow the above recommendation.