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Sandwell Metropolitan Borough Council (202305599)

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REPORT

COMPLAINT 202305599

Sandwell Metropolitan Borough Council

16 August 2024


Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example, whether the landlord has failed to keep to the law, followed proper procedure, followed good practice, or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman, and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

  1. The complaint is about the landlord’s handling of the resident’s:
    1.     Request that it fund external mediation.
    2.     Associated formal complaint.

Background

  1. The resident has been the secure tenant of the 2-bedroom property since 2008. The landlord is a local authority.
  2. There has been a history of engagement between the landlord and resident about reports of anti-social behaviour (ASB). The landlord’s handling of the alleged ASB was not part of the resident’s complaint and is not, therefore, addressed in this report.
  3. In November 2020 the landlord carried out a general review of its handling of ASB cases. It concluded that there had been a strain placed on its ASB and Housing Management Teams associated with ongoing and persistent complaints including issues being resurrected whenever there was an adverse decision. It noted that it no longer had a mediation service, due to the ‘Track and Trace’ pandemic–related service taking priority, and due to the pressures placed on its resources, it would find funds to pay for external mediation.
  4. The resident has informed the Ombudsman that the landlord’s position on offering external mediation became known to her via a Subject Access Request (at some point in 2021).
  5. On 7 December 2021, the resident raised a complaint to the landlord and asked it to investigate why there were different versions of mediation available to residents and discrepancies in its service provision. She asked it to provide the funding to enable independent, external mediation in her own situation, relating to reports of ASB.
  6. She chased a response on 15 December 2021 and the landlord responded that it now offered a mediation service itself, using appropriately trained and impartial officers. It therefore invited the resident to come back to it if she required any assistance or clarity in that regard. It also said that the matter was being considered separately by the ASB team (which falls under the local authority function, rather than the landlord function). 
  7. In subsequent correspondence, the resident chased the landlord for a stage 1 complaint response, and it referred her to its previous informal response. In late December 2021 the resident asked the landlord to treat the matter as a complaint and the landlord responded that it had been dealt with as an enquiry by the relevant service area, and no further response would be issued.
  8. On 30 December 2021 the resident confirmed that she wanted the matter logged as a complaint and the landlord responded that it would do so that day. It explained that its stage 1 response would be provided by 17 January 2022 due to Christmas office closures.
  9. In the landlord’s stage 1 response of 11 January 2022 it reiterated that it offered a mediation service using appropriately trained, independent and impartial officers, in line with the position it had presented previously. The resident and landlord corresponded further in February 2022 and the resident escalated her complaint on 5 May 2022, on the basis that the landlord was on record as offering to fund external mediation but was now denying this.
  10. In the landlord’s stage 2 response of 16 May 2022, it said the offer made in November 2020 was an accurate representation of the situation at that time. Since then, it had been able to offer mediation internally, and it would consider the appropriateness of mediation (internal or external) on a case-by-case basis, at its discretion. It explained that mediation would need to be agreed by all parties to a dispute and the ASB Team would determine its manner and delivery. It did not uphold the complaint, on the basis that circumstances had changed since it first made the offer of external mediation.

Events after the end of the complaint process

  1. In October 2022, the resident repeated her requests and concern over the impartiality of the local authority mediators and the landlord reiterated the explanation given in its stage 2 response. The landlord also noted internally that it could not set aside funding across several financial years in order to accommodate a historical offer that was made based on circumstances which were relevant at the time, but no longer applicable.

Assessment and findings

The landlord’s response to the resident’s request that it fund external mediation

  1. There is no obligation on the landlord to fund external mediation under its ASB Policy. This states that the landlord will aim to refer suitable cases to mediation where available, as part of the intervention tools its ASB and other teams may offer, with the consent of people involved. There are no prescriptive terms over the funding or provider of mediation. The landlord therefore has discretion over this, which it reasonably explained to the resident.
  2. It follows that the landlord is entitled to adapt its approach according to its discretion, based on the current circumstances and the details of each case. The landlord took reasonable steps to explain the reason for its original position to the resident, with reference to the circumstances at the time, to explain why it could not offer a mediation service itself at that juncture. It was reasonable for the landlord to then explain the reason for the changes in its position, and why it could not commit to the original offer of 2020, with reference to its developed circumstances and its renewed capacity to provide a mediation service.
  3. The landlord offered a broad overview of how it might offer mediation in the future, including the chance for external mediation. It reasonably managed the resident’s expectations to let her know that the ASB team under local authority function would ultimately have broad authority over the manner and delivery of mediation, if this were agreed upon by the parties to the dispute.
  4. It is acknowledged that the resident has disagreed with the landlord’s decision and raised concerns of bias. The landlord has however explained that, should mediation take place, it would be by appropriately trained and impartial officers, and it would explore external mediation as well, depending on the circumstances. The landlord took reasonable steps to address the resident’s concerns about future mediation, and invite her to confirm if she wished to proceed so it could engage with the other parties to the dispute.
  5. The landlord’s responses were reasonable and clearly communicated to the resident, and the Ombudsman therefore makes a finding of no maladministration, with no further action required.

Complaint handling

  1. The Ombudsman has assessed the landlord’s complaint handling, which was before the establishment of the Housing Ombudsman’s Complaint Handling Code (the Code), with reference to the landlord’s own Customer Feedback Guide. This sets out its complaint process. The landlord will be aware of the Code’s requirements for more recent complaints (and must now ensure its complaints process is Code-compliant), but this investigation is looking back to the period of the resident’s complaint. 
  2. The landlord’s complaint process under its Customer Feedback Guide states that a complaint may be an expression of dissatisfaction, however made, about the actions or inactions of the organisation. It may treat comments or suggestions as separate from complaints. Complaints must be made no later than 12 months of the event occurring.
  3. In this case, the resident’s complaint of December 2021 concerned events which took place over 12 months prior, in November 2020 (although seemingly not brought to the resident’s attention until some point in 2021). The landlord was resolution focused, in all the circumstances of the complaint, to use its discretion to address her concerns and respond within its complaint procedure.
  4. However, the resident experienced delays in the landlord’s acknowledgment of the complaint, as it did not log this as a complaint until she chased it several times and clarified that she wanted her concerns investigated rather than responded to as an enquiry.
  5. At the time, the landlord did not explain that it was declining the complaint due to any policy concerns about timescales, it only explained repeatedly that it had treated her communication as an enquiry. It would have been reasonable for the landlord to either offer an explanation of whether it was declining the complaint, and the options she then had to escalate her concerns further if she wished, or accept the complaint as per the resident’s request and action this accordingly within its complaint procedure.
  6. Once the matter was ultimately logged on 30 December 2021 the landlord provided its stage 1 response on 11 January 2022. It did not respond within 10 working days as per its Customer Feedback Guide, which was unreasonable. However, this was mitigated to an extent as it managed the resident’s expectations beforehand and explained that it would provide a response by 17 January 2022, which it did, and that this was delayed due to the office closures. The landlord provided its stage 2 response on 16 May 2022, following the resident’s escalation on 5 May 2022. This was within its Customer Feedback Guide’s timescale of 20 working days and was therefore reasonable.
  7. Overall, the landlord’s complaint handling was reasonable to an extent as it accepted the resident’s complaint despite the subject matter being outside of the 12 month timescale that its Customer Feedback Guide prescribed, and it managed the resident’s expectations on the timescale for the stage 1 response.
  8. However, its communication at the time was not clear in setting out whether it was declining the complaint, or accepting it, and the resident experienced uncertainty, and time and trouble in repeating her request and chasing this several times. Therefore, overall, there was service failure in the complaint handling. An order is made for the landlord to offer £25 compensation in line with the Ombudsman’s Remedies Guidance.

Determination (decision)

  1. In accordance with paragraph 52 of the Scheme, there was:
    1. No maladministration in the landlord’s response to the resident’s request  that it fund external mediation.
    2. Service failure in the landlord’s handling of the formal complaint. 

Orders and recommendations

  1. Within 4 weeks of the date of this report, the landlord is ordered to pay the resident £25 for time and trouble associated with the complaint handling service failure.