Dudley Metropolitan Borough Council (202230455)

REPORT

COMPLAINT 202230455

Dudley Metropolitan Borough Council

15 November 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 the landlord’s:
1. Decision to refuse the resident’s housing transfer application.
2. Handling of the resident’s reports of antisocial behaviour (ASB).
3. Response to the resident’s request for communal cleaning provision.
4. Complaint handling.

Background

The resident is a secure tenant of the landlord. The property is a flat within a block.
On 2 October 2022, following a one–off clean arranged by the landlord, the resident queried when a further clean would take place of the communal area in the block. The landlord advised that tenants had to take responsibility for communal cleaning as it did not have a cleaning contract for the block.
On 10 February 2023, the resident applied to transfer properties to a different area.
The resident raised a complaint on 15 February 2023 regarding the lack of communal cleaning provision in the block. For the purpose of this report, this will be referred to as complaint 1. The resident disagreed that it should be the responsibility of tenants. The landlord responded via email on 17 February 2023. It said that if there was no existing cleaning contract organised by the landlord, then it was the tenants’ responsibility to clean the communal areas.
Between 23 February and 7 March 2023, the resident reported various incidents of ASB, namely noise nuisance and threats of violence by his neighbour. The landlord discussed the incidents with the resident and his neighbour. It also conducted a meeting with the neighbour and subsequently issued them with a formal warning. The landlord also liaised with the police regarding the neighbour’s threats of violence towards the resident. The ASB case was subsequently closed following no further incidents occurring.
On 12 April 2023, the landlord advised the resident that it had refused his application to transfer properties due to previous debts associated with his tenancies. The resident raised a complaint about the landlord’s decision on 12 April 2023. This will be referred to as complaint 2. He said that that debts were part of a Debt Relief Order (DRO), therefore the landlord should not consider them as part of his application to move. The resident said that the landlord had asked him to repay the debt, which was illegal. He said that landlord staff made him feel uncomfortable and treated him unfairly regarding queries he had, including communal cleaning and ASB.
On 2 May 2023, the resident contacted the landlord and reported a further instance of ASB by his neighbour. He said the neighbour’s child had called him a derogatory name, and he had reported the incident to the police. The landlord attempted to contact the neighbour, but due to the lack of evidence, it advised the resident that it was unable to take action.
The landlord issued its stage 1 response on 11 May 2023. It said that when a tenant applies for a transfer, it conducts various checks which include financial history. While the debts were part of a DRO, the landlord was still able to consider them in determining whether to accept or refuse his transfer application. The landlord said that staff always acted professionally and there was no evidence to suggest that it had treated him unfairly.
The resident escalated his complaint on 16 May 2023. He disagreed that the landlord was able to consider previous debts. He was also unhappy that the landlord had failed to address his complaint regarding a lack of communal cleaning provision. He also raised that his request to move was due to ongoing ASB and harassment by his neighbour.
On 27 May 2023, the resident raised further reports of ASB by his neighbour, namely noise nuisance. On 29 June 2023, the landlord confirmed that it had met with the neighbour, who assured it that the noise would stop. It also explained that some of the noise reported, namely screaming, was due to a hornets nest in the neighbour’s property, which the landlord could evidence was true. Due to the gaps in reports, the landlord did not deem that ASB was persistent. The resident subsequently raised a complaint regarding the landlord’s handling of the ASB case. This will be referred to as complaint 3.
The landlord issued its stage 2 response on 3 July 2023. The response addressed all 3 of the resident’s complaints. It apologised for the delayed response and had previously offered to meet with the resident to discuss the complaint, which he declined. It provided the following response;
1. Decision to refuse the resident’s transfer application.
  1. The landlord reiterated its stage 1 response that it had refused his application, in accordance with its allocation policy, due to previous tenancy debts.
  2. The landlord said that it was not aware of any legislation or case law to support the resident’s assertion that the landlord was unable to consider a debt, in any capacity, that had been part of a DRO.
  3. It said that it had not sought to unfairly enforce the recovery of debts.
  4. The landlord concluded that it had adhered to its policy, and there was no evidence that the resident had been treated unfairly.
2. Communal cleaning
  1. The landlord confirmed that the resident’s building did not have a cleaning contract for communal areas.
  2. While the landlord had funded a one off clean previously, it had informed all tenants of their responsibility to clean the communal areas of the block.
3. ASB
  1. The matters that the resident had complained about had been resolved and no further action would be taken.
  2. The landlord was satisfied that staff had acted appropriately when dealing with the resident’s reports, but it would remind staff to keep complainants updated on any decision made in a timely manner.
The resident remains dissatisfied because the landlord failed to acknowledge that his transfer application was due to ASB by his neighbours. The resident also said that other tenants created excessive mess in communal areas, which posed fire risks. The resident felt targeted and insulted when receiving letters about fire risks in the communal areas, when he had already raised the issue about communal cleaning and the removal of neighbours’ belongings.

Assessment and findings

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint, or part of a complaint, will not be investigated.
In accordance with paragraph 42.j of the Housing Ombudsman Scheme, the resident’s complaint about the landlord’s decision to refuse his transfer application is outside of the Ombudsman’s jurisdiction. Paragraph 42.j states that the Ombudsman may not consider complaints that fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.
The resident has advised that he requested the transfer because of the ASB that he was experiencing. While the reasons for the resident’s request are acknowledged, this would constitute a request on welfare grounds. Part 6 of the Housing Act 1996 governs the allocation of local authority housing stock in England. It sets out the circumstances where reasonable preference must be given to certain applicants. The reasonable preference criteria include applicants living in unsuitable conditions and applicants who need to move on medical or welfare grounds. The Ombudsman can only consider complaints about transfer applications that are outside of Part 6 of the Housing Act.
The Local Government and Social Care Ombudsman (LGSCO) can consider complaints about Part 6 housing applications. As such, this complaint falls within the jurisdiction of the LGSCO. It is open to the resident to submit his complaint to the LGSCO along with this report in support of the finding that the complaint is within the LGSCO’s jurisdiction to investigate.

Handling of the residents reports of anti-social behaviour (ASB).

The landlord’s ASB policy details that it will respond to reports of ASB by taking “a proportionate and reasonable approach when using legal and non-legal action.” It should investigate by “gathering evidence and addressing concerns swiftly and effectively to maximise the resolution as early as possible.” The policy further outlines that the landlord would apply an approach to what is ‘reasonable’, as tolerance levels are subjective, and what is a nuisance to one person, may not be to another.
On receiving a report, the landlord must provide initial advice to the victim and make contact within 1 working day in violence-related cases. In all other instances, it must make contact within 5 working days. If an ASB report is not actionable or there are no realistic lines of enquiry to progress a report, the landlord will record the complaint but close it, and the complainant advised of the reasons why and/or signposted to suitable advice.
The landlord responded to the resident’s initial reports of ASB within 8 working days. This was narrowly outside of the expected timescales outlined the landlord’s ASB policy. Once it had made contact, the landlord discussed the reports with the resident and provided advice about completing diary sheets. This was appropriate. The landlord also issued an advisory letter to the resident’s neighbour, which was proportionate action when considering the nature of the reports received.
Upon receiving a report from the resident about threats of violence by the neighbour, the landlord contacted the resident on the same day. This was reasonable and in accordance with its ASB policy. The landlord offered appropriate advice to contact the police, issued a warning to the neighbour and liaised with the police who confirmed that the matter had been filed. Overall, this was proportionate action by the landlord.
Following a further report of noise nuisance by the resident, the landlord met with the neighbour again. This was reasonable and demonstrated that the landlord took proactive action in addressing the ASB reports. It explained that the timespan between reports meant that the ASB was not persistent. This was a reasonable conclusion based on the evidence available. Communicating this to the resident also helped to manage expectations. However, the landlord took 15 working days to respond to the resident’s report. This was not in accordance with its ASB policy and caused the resident frustration. He also needed to take the time and trouble to chase a response, which was unreasonable.
It has been noted through this investigation that the landlord’s ASB policy is silent in relation to conducting risk assessments. The landlord may wish to consider implementing these when reviewing its policy. Conducting risk assessments where ASB is concerned is good practice. They enable ASB officers to understand the risks faced by ASB victims and help to identify whether any additional support is required.
We would not expect the landlord to have conducted a formal risk assessment, as it is not a requirement within its ASB policy. Nevertheless, the resident had been victim of threats of violence by the neighbour. This should reasonably have prompted the landlord to consider the risk posed to the resident and communicate with him further, rather than solely relying on police involvement and issuing warnings. Had the landlord conducted a further in depth discussion with the resident to discuss his reports and the impact they had on him, this could have helped the landlord establish the resident’s level of vulnerability, the risk posed to him and determine what kind of support was available to him.
The landlord’s response to the resident’s reports of ASB were predominantly reasonable. It took positive action following reports of ASB and kept the resident well informed, despite the resident’s dissatisfaction at the action taken. However, the resident did experience delays in receiving a response on occasions, which would have caused a degree of frustration and inconvenience. We have not been provided with any evidence to show that the delays were unavoidable. Furthermore, the landlord failed to give enough consideration to the risk posed to the resident and his level of vulnerability. This would have enabled the landlord to establish what support was available to him both via its own services and through external agencies such as Victim Support.
For that reason, there was maladministration in the landlord’s handling of the resident’s reports of ASB.

Response to the residents request for communal cleaning provision.

The landlord does not have a specific policy that stipulates its responsibilities with regards to cleaning communal areas in buildings that it owns/manages. In response to the resident’s queries and complaint regarding the lack of communal cleaning provision, the landlord advised that it did not have a cleaning contract for the block. The landlord also confirmed that tenants were aware of their responsibilities to keep the communal area clean.
The resident’s tenancy agreement outlines that tenants must co-operate with the landlord and neighbours to keep any communal areas clean, tidy, secure and clear of obstruction.
The expectation for resident’s to ‘co-operate with the landlord’ suggests that the landlord would work with the residents and contribute to keep the communal areas clean. Given the wording of the tenancy agreement, the explanation that the landlord provided to the was not entirely accurate. There is some expectation on residents to keep communal areas clean and tidy. However, the landlord owns the communal areas – they do not form part of any individual occupancy agreement – and therefore assumes responsibility for them. As such, there was still some obligation on the landlord to ensure that these areas were clean and appropriately maintained. From the evidence that is available, the landlord failed to explain to the resident what it does/would do moving forward to help keep the areas clean and tidy. This was a missed opportunity.
The landlord also maintained that while it had paid for a clean previously, it was a ‘one off.’ The landlord’s efforts to arrange a clean are noted. However, it did not explain why it had agreed to conduct the clean, or why it paid for it. Had it done so, this may have managed expectations and provided an explanation as to why the ‘one off’ clean was necessary at that point.
According to the landlord’s website, it consulted with tenants regarding the proposed introduction of service charges from Monday 14 October to Monday 11 November 2024. It has outlined that the proposed service charge payment is separate to rent and would cover a range of communal services including the cleaning of communal areas (if applicable). While the end date has passed, if it has not already done so, the landlord should ensure that the resident is aware of the proposal and signposts the resident to ways he can respond to the consultation.
Overall, the landlord’s explanation was reasonable in terms of the resident’s responsibilities for contributing to keeping communal areas clean, in accordance with his tenancy agreement. However, as above, the landlord failed to acknowledge its own responsibility for these areas. In the circumstances, it would have been reasonable for the landlord to have agreed to undertake periodic reviews of the communal areas with a view to determining if cleaning services were needed. The fact that the landlord agreed to and paid for a ‘one off’ clean suggests that it was required due to an issue with cleanliness. Furthermore, the proposed introduction of a service charge to cover cleaning in the future suggests that it is necessary to implement regular communal cleaning.
The landlord failed to acknowledge its responsibility for communal areas, and its part in contributing to maintaining them. It missed an opportunity to consider whether a cleaning service was required after a period of monitoring and conducting inspections. If the landlord had agreed to monitor the cleanliness of the communal areas, it would have demonstrated that it was engaging with the resident’s complaint in a more meaningful way. Its failure was undoubtedly frustrating and caused the resident a degree of inconvenience.
Subsequently, this Service has found service failure in the landlord’s response to the resident’s request for communal cleaning provision.

Complaint handling

The landlord’s complaint policy outlines that a complaint is defined as “an expression of dissatisfaction, however made, about the standard of service, actions, or lack of action by the organisation, its own staff, or those acting on its behalf, affecting an individual resident or group of residents”. This definition is also set out in this the Ombudsman’s Complaint Handling Code (CHC).
The CHC is a guidance document that sets out the Ombudsman’s expectations for how landlords should manage complaints. It encourages landlords to adopt a positive complaint-handling culture that enables them to resolve disputes quickly, improve the quality of the service it provides to residents and ensure that complaints provide an opportunity for learning and positive improvement. A landlord’s failure to adhere to the code and its own complaint procedures could result in issues not being resolved effectively and could also damage the landlord/tenant relationship.
The landlord operates a 2 stage complaints process. Under its policy, and in accordance with the CHC, the landlord should provide a stage 1 response within 10 working days of the complaint being acknowledged. A stage 2 response should be issued within 20 working days of the complaint being escalated and acknowledged.
With regards to the resident’s concerns about communal cleaning, the landlord treated the complaint as an enquiry and responded informally via email. While this Service recognises the landlord’s efforts to respond to the resident’s concerns, its handling was not appropriate.
The CHC sets out that landlords must offer formal complaint responses under its complaints process. A stage 1 response must be issued within 10 working days of the complaint being logged and must address all points raised in the complaint and provide clear reasons for any decisions, referencing the relevant policy, law, and good practice where appropriate.
It further sets out that landlords must confirm the following in writing to the resident at the completion of stage 1 in clear, plain language:
1. the complaint stage.
2. the complaint definition.
3. the decision on the complaint.
4. the reasons for any decisions made.
5. the details of any remedy offered to put things right.
6. details of any outstanding actions.
7. details of how to escalate the matter to stage 2 if the resident is not satisfied with the answer.
The landlord failed to act in accordance with its complaint policy and the CHC and failed to respond to the communal cleaning complaint via a stage 1 response. This meant that the resident did not have the reassurance and benefit of response timescales, the opportunity to receive a formal remedy to put things right and an awareness in how to escalate his complaint should he wish to do so. This failure also delayed the resident in being able to start and exhaust the landlord’s complaint process, and subsequently, to bring his complaint to the Ombudsman Service for an independent and impartial investigation.
Similarly, the landlord failed to treat the resident’s ASB complaint as a new complaint that warranted a separate stage 1 response. The landlord failed to raise a new complaint and responded to the resident’s complaint within its final stage 2 response. The landlord should have given the resident a fair opportunity to challenge its formal position. With a 2 stage process, a resident can do that when seeking to escalate their complaint. It cannot do so with a 1 stage process. This was inappropriate and a missed opportunity for the landlord to resolve the resident’s complaint without the need for the Ombudsman’s intervention.
The landlord issued its stage 1 response about the transfer application complaint on 11 May 2023. This was 18 working days after it acknowledged the complaint. This is outside the 10 working day response timescale outlined within the CHC and the landlord’s complaint policy. The landlord did not provide an explanation for the delay, nor did it compensate the resident for its complaint handling failures which was unreasonable.
The landlord acknowledged the resident’s complaint escalation on 24 May 2023. In accordance with its policy and the CHC, the landlord should have issued a stage 2 response by 22 June 2023. The CHC states that any delays in providing a complaint response must not exceed an additional 10 working days without good reason.
A stage 2 response was issued on 3 July 2023; 28 working days after the landlord acknowledged the resident’s complaint escalation. The landlord apologised for the delay and provided an explanation. It also referenced offering to meet with the resident, which he had declined. This was reasonable to acknowledge the minor inconvenience that the delay caused to the resident.
Overall, there were notable failings in the landlord’s management of the resident’s complaint. The complaints process was unnecessarily disjointed and protracted. The landlord did not follow its complaint policy or the CHC. The landlord did not offer an appropriate remedy in recognition of the above failures, which caused inevitable distress, inconvenience, and frustration.
This Service has therefore concluded that there was maladministration in the landlord’s handling of the matter, and the landlord is ordered to pay the resident £200 in compensation as a result. This is in line with the Ombudsman’s remedies guidance where there was a failure that the landlord has failed to acknowledge and has made no attempt to put things right.

Determination

In accordance with paragraph 42j of the Housing Ombudsman Scheme, the complaint regarding the landlord’s decision to refuse the resident’s housing transfer application is outside the Ombudsman’s jurisdiction.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in respect of the landlord’s handling of the residents reports of ASB.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in respect of the landlord’s response to the residents request for communal cleaning provision.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in respect of the landlord’s complaint handling.

Orders and recommendations

Orders

Within 4 weeks of the date of this determination, the landlord must pay the resident £400 compensation comprised of;
1. £150 for the frustration and inconvenience caused by delays with the landlord’s handling of the resident’s reports of ASB, and its failure to meaningfully consider the resident’s vulnerability and risk posed to him by the ASB.
2. £50 for the inconvenience caused by the identified failures with the landlord’s response to the residents request for communal cleaning provision.
3. £200 for the distress and inconvenience caused by the identified complaint handling failures.
The landlord must provide the Ombudsman with evidence of compliance with the above order.