Hammersmith and Fulham Council (202211706)

REPORT

COMPLAINT 202211706

Hammersmith and Fulham Council

11 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

1. The complaint is about the landlord’s response to the resident’s report of antisocial behaviour.
2. The Ombudsman has also considered the landlord’s complaint handling.

Background

3. The resident has a secure tenancy with the landlord which is a local authority. The tenancy commenced on the 24 November 1997. The property is a 3 bedroom flat on the third floor of a block.
4. The resident’s daughter is authorised to act on her mother’s behalf in relation to her complaint to this Service. For the purposes of this report the resident and her representative are referred to as ‘the resident.’ The landlord’s records show that the resident suffers from arthritis and uses a wheelchair.
5. On 22 August 2022 the resident emailed the landlord to report an incident of Antisocial Behaviour (ASB). She alleged that her neighbour had superglued padlocks belonging to the landlord to prevent access to a green space. The resident was dissatisfied with inaction by the landlord so set about removing the glue herself. This led to a verbal altercation with her neighbour. During the landlord’s investigation both parties made allegations against one another. On 30 August the landlord issued a breach of tenancy warning to the resident. Its subsequent offer to refer all parties to mediation was declined and the case was closed in September.
6. The resident received her warning letter on 1 September 2022 and made a formal complaint setting out her account of events. She felt the warning was unreasonable and that the landlord was “siding” with her neighbour.
7. The landlord issued its stage 1 complaint response on 21 September 2022 in which it agreed that access to the green space should be maintained at all times. It also said it had:
   1. Spoken to the resident’s daughter on 1 September to discuss the incident.
   2. Interviewed the resident’s neighbour regarding the allegation of gluing the padlocks.
   3. Taken appropriate steps to investigate the reports of ASB, including offering mediation as an appropriate resolution.
8. The resident emailed the landlord on 11 October 2022 to request to escalate her complaint to stage 2. She was unhappy with the landlord’s ASB investigation because she had provided the details of 3 witnesses to the incident but the landlord had not followed up with them.
9. The landlord issued its stage 2 complaint response on 12 December 2022, the main points being that it:
   1. Had interviewed the resident’s neighbour who denied claims of harassment towards the resident and made a counter allegation.
   2. Required residents to complete a consent form to investigate any ASB report thoroughly, including interviewing potential witnesses. The consent form was sent to the resident in the post but had not been returned. Therefore, it could not approach witnesses as part of its investigation.
   3. Signposted the resident to the Local Government and Social Care Ombudsman (LGSCO) should she remain dissatisfied.
10. In an email to this Service of 23 October 2023 the resident asked us to investigate her complaint. She felt the landlord had not helped with her allegations of bullying by her neighbour and wanted action to be taken. The case became one we could investigate on 22 March 2024.

Assessment and findings

Landlord’s obligations, policies and procedures.

11. The landlord’s ASB policy and procedure says that it:
    1. Will act fairly in line with natural justice. This is defined by the oxford english dictionary as “principles, procedures, results which are instinctively felt to be just and fair, even if not formally enshrined in law.
    2. Will invite residents who have not reported to the local office or surgery for a more detailed interview or, offer a home visit for residents who cannot attend the office. The interview may be conducted over the telephone where the resident declines an appointment, with the consent form signed at a later date if appropriate.
    3. Will agree an action plan with residents to resolve the ASB and will ensure that the complainant gives consent to this. Copies of the initial consent form and action plan should form part of the file.
    4. Places emphasis on thorough investigations of reports of ASB (and any counter complaints) to identify the perpetrators and obtain, wherever possible, witness evidence.
    5. Will make appropriate use of mediation services.
12. The ASB Crime and Policing Act 2014 sets out the need for landlords to put victims at the heart of their response to ASB. When considering the response to a complaint of ASB, landlords must consider the effect that the behaviour in question is having on the life of the victim.
13. The landlord’s complaints policy says it will respond to stage 1 complaints within 10 working days and to stage 2 complaints within 20 working days.

Scope of the investigation

14. On 9 December 2022 an internal email queried whether the landlord had permission to share the resident’s information with her daughter. The responding officer said that “at a glance” they could not see anything but would ask. In an email to this Service of 30 October 2024 the landlord confirmed that there is no evidence on the file to say the resident gave permission for it to share information about her tenancy with her daughter. It said it had contacted the resident to clarify the position and would record the outcome on its records.
15. The Ombudsman has not assessed this as part of its determination. This is because we cannot consider whether the landlord breached data protection regulations in its handling of the resident’s personal information. This is in accordance with the approach set out in the Housing Ombudsman Scheme that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion falls properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body. Breaches of data protection regulations fall under the remit of the Information Commissioner’s Office (ICO). It is therefore advised that the resident contacts the ICO for further information if she wishes to pursue this element of the complaint.

The complaint is about the landlord’s response to the resident’s reports of antisocial behaviour.

16. In her stage 1 complaint of 1 September 2022 the resident said she had emailed the landlord on 22 August to report an incident of ASB. This investigation has not seen a copy of the email however, the landlord emailed the resident on 22 August to confirm that her email had been passed to the housing team.
17. There is no evidence that the landlord followed its ASB policy by contacting the resident to seek further details of the incident to open an ASB case. Furthermore, there is no evidence that the landlord agreed an action plan with the resident or that it sought her consent to discuss her complaint with the alleged perpetrator.
18. On 27 August 2022 the landlord received a report of ASB from the resident’s neighbour. The neighbour alleged that the resident and another neighbour had tried to break open the padlock. When they were asked what they were doing they became abusive and swore at them.
19. There is no evidence that the landlord contacted the resident to obtain her account of the incident. However, it proceeded to issue her with a tenancy warning on 30 August 2022. The landlord did not follow its ASB policy because its actions did not follow natural justice. Furthermore, it did not thoroughly investigate the neighbour’s allegation before taking enforcement action against the resident.
20. Having received the landlord’s letter of 30 August 2022 a telephone conversation took place between the landlord and the resident’s daughter on 1 September. The resident denied the neighbour’s allegations.
21. The landlord’s records show that it opened an ASB case on 6 September 2022. The case recorded the neighbour as the complainant and the resident as the perpetrator.
22. As part of its case management the landlord carried out a risk assessment, also on 6 September, which assessed the risk to the resident as ‘5’. There is no key or scale which sets out what a score of 5 means in terms of the severity of the risk or how the landlord would respond accordingly. Furthermore, the risk assessment was carried out days after the incident was reported by both parties. It was therefore limited in terms of ensuring the landlord’s response was victim led from the outset.
23. On 12 September 2022 the landlord wrote to the resident to say that counter allegations had been made against the resident which she had denied during their phone call on 1 September. It offered to refer all parties to mediation which was in line with its ASB policy. The landlord’s file note dated 13 September stated that both parties had declined to participate in mediation therefore the case was closed.
24. In her request to escalate her complaint to stage 2 on 11 October 2022 the resident raised concerns about the depth of the landlord’s investigation. The landlord’s stage 2 complaint response of 12 December said it had not contacted witnesses because the resident had not given consent for it to do so.
25. The records for the ASB case opened on 6 September 2022 say “consent form and action plan form sent and received from complainant.” As set out above, the complainant in the case was recorded as the neighbour. Therefore, there is no evidence that the landlord agreed an action plan with the resident or sought her consent to investigate her ASB report in full.
26. The landlord’s response to the resident’s report of ASB was not in line with its ASB policy. It failed to open a case, discuss the incident with the resident and/or create an action plan to enable the resident to give consent for an in depth investigation. It failed to discuss the neighbour’s report with the resident before issuing a written warning. Furthermore, it did not act in the interests of natural justice, causing distress to the resident.
27. The landlord’s failures amount to maladministration because they had an adverse effect on the resident. The landlord has been ordered to pay the resident £250 which is in line with the Ombudsman’s remedies guidance where there was no permanent impact.

The Ombudsman has also considered the landlord’s complaint handling.

28. The resident made a stage 1 complaint on 1 September 2022. The landlord provided its response on 21 September which was 13 working days later and 3 days over target. The landlord failed to acknowledge and/or apologise for the delay which was inappropriate.
29. The resident emailed the landlord on 11 October 2022 to request to escalate her complaint. The landlord issued its response on 12 December which was 44 working days later and 24 days out of time.
30. The evidence shows that the complaint handler experienced delays when gathering relevant information from internal colleagues to be able to provide a response. Internal emails were sent on 15 and 30 November and on 12 December 2022 to chase their response.
31. The Ombudsman’s Complaint Handling Code (the Code) sets out that a positive complaint handling culture is an important element of an effective and efficient complaints process. This requires all members of staff to engage and support the complaint investigation. That they did not do so was a failure which had an adverse effect on the service provided to the resident.
32. The Code says that landlords may extend their response deadline by 10 days in exceptional cases. When necessary the landlord should provide an explanation to the resident containing a clear timeframe for when the response will be issued. The response was due by 8 November 2022. On 15 November the landlord emailed the resident to apologise for the delay and advised it would respond by 30 November.
33. While it was positive that the landlord provided an update to the resident it was an apology for not having done something rather than a proactive step to manage the resident’s expectations. Furthermore, the landlord failed to contact the resident again when it was unable to meet the date of 30 November which was inappropriate.
34. The landlord’s stage 2 complaint response incorrectly signposted the resident to the LGSCO rather than to this Service.
35. The landlord’s failures amount to maladministration because they had an adverse effect on the resident. The landlord has been ordered to pay the resident £150 which is consistent with the Ombudsman’s remedies guidance where there was no permanent impact.

Determination (decision)

36. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s response to the resident’s report of ASB.
37. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s complaint handling.

Orders

38. Within 4 weeks of the date of the determination the landlord is ordered to:
    1. Write to the resident to apologise for the failings identified in this report.
    2. Pay the resident £400 compensation comprised of:
       1. £250 for the distress caused by its failures in its response to the resident’s report of ASB.
       2. £150 for the inconvenience caused by its complaint handling failures.

Recommendation

39. The landlord should satisfy itself that:
    1. Its complaint handling culture is not a barrier to providing an effective and efficient complaints process.
    2. Processes are in place to ensure it signposts residents to the correct Ombudsman service.
40. Review its ASB risk assessments to ensure they provide meaningful information by setting the score against a scale or matrix which also includes how the landlord should respond in relation to the level of risk.