North Kesteven District Council (202118394)

REPORT

COMPLAINT 202118394

North Kesteven District Council

13 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

1. The resident complained about:
   1. the landlord’s decision to not investigate a complaint.
   2. the landlord’s reference to the resident’s behaviour as ‘vexatious’.

Background

2. The resident is an assured tenant of the landlord.
3. The resident raised a staff conduct complaint on 30 July 2021 in relation to how a tenant panel was handled. The landlord wrote to the resident on 17 August 2021 about his complaints. The appendix to this letter stated that the landlord would not be taking the staff conduct complaint forward. The landlord stated that it may consider the resident’s contact to be persistent if he continued to submit complaints without being prepared to engage with the landlord. It said that it would be unlikely to accept any further complaints unless he agreed to mediation.
4. The resident contacted the Ombudsman and stated that the landlord had refused to consider his complaint unless he engaged in mediation, and that the landlord had said that his behaviour may be verging on persistent and vexatious, which the resident disputed. The landlord informed this service that its final position was set out in the letter to the resident dated 17 August 2021. As such, the complaint has not been investigated by the landlord.
5. The complaint was accepted for investigation by the Ombudsman on 10 February 2023. The resident informed this service that, in order to resolve his complaint, the landlord should be stopped from applying the unreasonable behaviour policy in order to refuse his complaints.

Assessment and findings

The landlord’s refusal to deal with the resident’s complaint unless he engaged in mediation.

6. Appendix 1 to the landlord’s complaints policy refers to the management of unreasonably persistent and vexatious behaviour. The policy states that examples of such behaviour may be when an individual has justified service requests or complaints but pursues them in inappropriate ways, or when an individual’s contact may be amicable but places heavy demands on staff time. The policy states that in most instances when the landlord considers someone’s behaviour is unreasonable, it will explain why and ask them to change their behaviour. The policy goes on to state that if the unacceptable behaviour continues after a warning has been issued to the resident, it may be appropriate to restrict their access. It says that a written communication will be sent to the resident explaining why the decision was made, and how long any restrictions will apply before they are reconsidered.
7. Within the letter sent to the resident on 17 August 2021, the landlord stated that the way the resident was choosing to make contact was becoming unmanageable. It said that by continuing to raise complaints, while at the same time refusing mediation, the resident’s behaviour could be considered unreasonably persistent. It said that if the resident continued to correspond on these matters, he would be treated as a persistent and/or vexatious customer, and restrictions may be applied to how he accessed the landlord’s service. The appendix attached to the letter stated that given the resident’s refusal to engage in mediation, the landlord was unclear as to what the resident hoped the outcome of the complaint to be. The landlord said it did not feel investing time into the complaint investigation would be productive.
8. The landlord informed this service that it did not formally apply its unreasonable behaviour policy, but that it advised the resident that it would consider applying the policy if he did not change the way he was approaching the landlord.
9. It is appropriate that the landlord offered and encouraged mediation in an attempt to improve the relationship with the resident, prior to taking any formal action. It is possible that early intervention through mediation could have resolved some of the resident’s concerns and mitigated the need to go through the complaints process. However, it is noted that this mediation has now taken place, and the resident informed this service that he felt it was unsuccessful.
10. The evidence indicates that the landlord did not properly follow its policy when making the decision to restrict the resident from making a complaint. This is because restrictions were placed on the resident without the unreasonable behaviour policy being formally applied. The landlord should have issued the warning before implementing any formal restrictions on the resident’s access to the complaints process. The policy stipulates that a resident should be warned about their behaviour before any restrictions are applied. The Ombudsman’s guidance on unacceptable behaviour policies states that such a warning should include examples of where the individual’s behaviour has been considered unacceptable with reference to what formal steps may be taken if the behaviour continues.
11. There is no evidence to indicate that the landlord issued a formal warning to the resident prior to August 2021. If the landlord felt that the resident’s behaviour was unreasonable, it should have implemented its policy, provided a warning and explained to the resident the actions it may take if their behaviour was not modified. These actions should have been taken prior to restricting the resident’s ability to make a complaint. As such, the landlord took unreasonable action in refusing to allow the resident’s complaint. This amounts to maladministration.
12. The resident stated that, in order to resolve the complaint, the landlord should be prevented from applying its unreasonable behaviour policy. He told this service that he is concerned that the landlord will use the policy again to prevent him from making complaints. The resident asserts that his complaints are valid, and highlights that several of his complaints have been upheld by either the landlord or by the Ombudsman, which supports that he is not vexatious. It is acknowledged that several of the resident’s previous complaints have been upheld. While this supports that there was merit to the resident’s complaints, it should be noted that this investigation has not considered the specific details of these complaints.
13. The Ombudsman encourages landlords to have a policy in place to help manage complainants who present unacceptable behaviours. While it is appreciated that the resident is concerned about his future communication being restricted, it would not be reasonable for the Ombudsman to order the landlord not to apply this policy in future. However, the landlord should ensure it properly follows its policy, and that it is only implemented when communication from a resident has become unmanageable. It should also be highlighted that landlords can take various actions to manage a resident’s contact, such as providing the resident with a single point of contact, or by only considering a certain number of issues in a specific period. It is unclear whether these actions were considered by the landlord prior to refusing the complaint.
14. The resident is likely to have experienced distress and inconvenience as a result of being unable to pursue his complaint through the landlord’s complaints procedure, and he has spent time and trouble in raising this with the Ombudsman. In order to remedy this complaint, the landlord should pay the resident £200 compensation. This is in accordance with this service’s remedies guidance for financial redress, which suggests amounts of £100 to £600 where there has been a failure which adversely affected the resident, but had no permanent impact.
15. It is one of the Ombudsman’s dispute resolution principles that part of the complaints process should be learning from outcomes. The landlord should take steps to ensure it properly follows its unreasonable behaviour policy, and ensures that restrictions on residents’ communication are not applied unless the proper procedure has been followed.

The landlord’s decision to accuse the resident of vexatious behaviour.

16. The Ombudsman’s role in considering this complaint is not to reach a conclusion on whether or the resident’s behaviour was unreasonable or vexatious, but rather to investigate whether the landlord acted appropriately in the circumstances.
17. In the 17 August 2021 letter the landlord stated that the resident emailed multiple officers at different times about different (linked) matters, which made it difficult for the landlord to maintain a full picture of the resident’s position. The letter went on to state that it would consider treating the resident as a persistent and/or vexatious complainer if he continued to correspond about his complaints. This service has not viewed all of the correspondence sent from the resident to the landlord during 2021. However, a summary of the complaints made by the resident has been provided. The resident stated that several of his complaints had been upheld which was evidence that his behaviour was not vexatious.
18. While this service is not required to reach a conclusion about the resident’s behaviour, it is reasonable for the landlord to inform a resident that it will implement its unreasonable behaviour policy if it has evidence to support that their contact or behaviour is becoming unmanageable. However, the Ombudsman recommends that landlords should not use the word ‘vexatious’ within its policies and communication due to it being an inflammatory word. Accusing a resident of vexatious behaviour is unlikely to improve communications. While this is a shortcoming on the part of the landlord, this does not amount to maladministration. It is recommended that the landlord undertakes a review of their policy, and makes changes accordingly.

Determination

19. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration regarding the landlord’s decision to not investigate a complaint.
20. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s reference to the resident’s behaviour as ‘vexatious’.

Orders

21. The landlord should pay the resident a total of £200 compensation for the distress and inconvenience caused by the landlord’s refusal to deal with his complaint.
22. The landlord should undertake a review of its decision to refuse the resident’s complaint, and implement any learning identified as a result. The landlord should consider any necessary steps that should be taken to ensure it properly follows its unreasonable behaviour policy.
23. The landlord should evidence compliance with these orders to this service within 28 days of this report.

Recommendations

24. The landlord should consider the Ombudsman’s guidance for landlords on managing unacceptable behaviour policies, and make any changes to its existing policy in line with this guidance. In particular, it should reconsider the use of the word ‘vexatious’.