Hammersmith and Fulham Council (202339926)

REPORT

COMPLAINT 202339926

Hammersmith and Fulham Council

17 September 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 handling of:
1. The resident and her son’s personal information.
2. Repairs to the property.
3. The resident’s son’s request to be added to the tenancy.
4. The resident’s reports of anti-social behaviour by a neighbour.
The Ombudsman will also investigate the landlord’s handling of the resident’s complaint.

Background

The resident lives in the property, owned by the landlord, under a secure tenancy. She has lived in the property, a 2-bedroom flat, since June 1984. She lives with her son, who has raised the complaint on her behalf. The landlord has recorded that the resident has Alzheimer’s and her son has depression.
Following a meeting on 21 October 2019, the landlord wrote to the resident on 24 October to inform her it had declined her request to assign her tenancy to her son as a succession had already taken place when her husband passed away and the tenancy was awarded to her.
The landlord subsequently had a meeting with the resident’s son on 29 November 2019 where it reiterated that the tenancy could not be reassigned under housing law or its policy. However, it said that in the event of the resident’s passing, her son could apply for a discretionary award of a tenancy under its policy.
At this meeting the landlord also agreed to consider the request for assignment of tenancy on medical grounds, outside of its normal procedure. It asked the resident’s son to provide information from his general practitioner (GP), which it would then review. On 4 November 2020 the resident’s son’s GP provided a letter to the landlord which said that being unable to remain in the flat after his mother’s passing would cause him significant harm and distress. This Service has not seen any evidence that the landlord reviewed its decision or communicated with the resident about his letter at that time. There is also no evidence of a complaint about this issue being raised at that time.
On 31 December 2022 the resident’s son contacted the landlord to report noise from furniture being moved around from an upstairs flat as well as banging on the floor and a dog barking. The landlord’s notes indicate that it carried out 4 visits between 31 December 2022 and 25 January 2023 but these notes do not show what was observed at these times.
The resident’s son emailed the landlord on 23 January 2023 and said that there was a constant noise nuisance and disturbance from the flat above, and the neighbour had threatened him twice. He said that he had raised a complaint about this, however there is no evidence the landlord logged, or responded to, a complaint at this time.
There was no further contact with the landlord about the noise issue until August 2023. The landlord installed noise monitoring equipment at the property during August and September 2023. It said that no noise nuisance was recorded. The resident’s son emailed the landlord on 28 November requesting an urgent resolution for ongoing noise nuisance. He said that they had been subjected to continuous noise nuisance from the flat above for several years and that he had made repeated complaints about the issue.
The resident’s son chased the landlord up on 30 November 2023, saying that the neighbour claimed the dog was only there once a week, but this was incorrect. He said that the dog was in the flat almost every day for extended periods.
On 6 December 2023 the resident’s son said he had written to the housing officer the previous week with serious concerns about the neighbour but had received no response. The landlord acknowledged this as a formal complaint on 7 December. It sent its stage 1 response on 21 December, in which it said it needed his written consent to investigate thoroughly and put the allegations to the neighbour. It asked if he had contacted environmental health to ask it to investigate a noise nuisance.
The resident’s son responded on 24 December 2023 saying that he had reported the noise nuisance on multiple occasions. He also said that the dog was in direct violation of housing rules and said he had already provided all necessary information.
On 10 January 2024 the landlord made an unannounced visit to the neighbour and said that it did not hear a dog barking. It said it also spoke to 3 other neighbours who had not heard a dog barking. It made the neighbour aware that they needed to ask for written permission for the dog.
On 11 January 2024 the resident emailed the landlord to say he had clinical backing regarding succession and said that the landlord was failing to enforce the tenancy agreement by allowing the neighbour to keep the dog. The landlord responded to say it had not witnessed any noise nuisance and reiterated its position on succession.
On 15 January 2024 the resident’s son’s GP wrote to the landlord saying that they had been subjected to noise nuisance in recent months which was causing both of them anxiety and insomnia.
On 23 January 2024 the landlord wrote to the neighbour regarding the allegations of noise nuisance. It wrote to the neighbour again on 14 February giving them permission to keep the dog.
The resident’s son contacted this Service on 26 March 2024 saying he had contacted the landlord’s complaints team with no response. We wrote to the landlord on 9 April 2024 and asked it to respond to him. The landlord sent its stage 2 response on 8 May in which it said:
1. It had granted the neighbour permission to have the dog as there was a lack of evidence that it was a nuisance. It said it had left noise monitoring equipment in the property for 2 months and no statutory noise nuisance was identified.
2. It had only shared the resident and her son’s personal information with another housing officer who was covering the area.
3. A disrepair case had been issued at court and it was awaiting directions from the court on this.
4. It had added him as a household member but could not add him to the tenancy.
On 13 May 2024 the resident’s son contacted this Service and asked us to investigate as he remained unhappy with the landlord’s response.

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 will not be investigated.
Paragraph 42(j) of the Scheme states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.
The resident’s son raised a complaint about the landlord’s handling of their data, saying that it had shared information with more staff than necessary.
The Information Commissioner’s Office (ICO) was set up to deal with concerns about data handling by organisations. It is therefore in a position to assess the regulatory aspects of both the resident’s complaint and the landlord’s actions. As a result, this aspect of the resident’s complaint falls outside of the Ombudsman’s jurisdiction.
Paragraph 41(c) of the Scheme states that the Ombudsman cannot consider complaints which, in the Ombudsman’s opinion concern matters that are the subject of court proceedings or were the subject of court proceedings where judgement on the merits was given.
The resident has complained about damp, mould and disrepair in the property. The landlord has provided a copy of the particulars of claim which were submitted to the court in October 2023. As the court is in the process of making a judgement in relation to the disrepair issues, this aspect of the resident’s complaint also falls outside of the Ombudsman’s jurisdiction.

Scope of the investigation

The resident’s son has raised concerns about his and the resident’s health and the impact on this by the issues raised. Whilst this service is an alternative to the courts, it is unable to establish legal liability or whether a landlord’s actions or lack of action have had a detrimental impact on a resident’s health. Nor can it calculate or award damages. The Ombudsman is therefore unable to consider the personal injury aspect of the resident’s complaint. These matters are likely better suited to consideration by a court or via a personal injury claim.
The resident’s son has said that he reported the noise nuisance to the local authority’s environmental health department on multiple occasions. Complaints about the actions of the local authority, outside of their housing function, do not come under the jurisdiction of this Service. If he is unhappy with the actions of the environmental health team he should raise these with it directly. He can also speak to the Local Government and Social Care Ombudsman (LGSCO) if he wishes.

The resident’s request for the tenancy to be assigned to her son

The tenancy agreement was originally signed as a joint agreement with the resident and her husband on 15 June 1984. It says that, in line with statutory succession rights set out in the Housing Act of 1985, if you have a joint tenancy and one of you dies, the tenancy will pass to the other joint tenant and this will count as statutory succession. If the tenancy was passed over when the previous tenant died, no one else has the right to succeed or take over the tenancy.
The landlord wrote to the resident on 25 October 2019 referring to a meeting it had with her on 21 October about assigning the tenancy to her son. It said that it had declined this request as a succession had already taken place when she had succeeded the joint tenancy following her husband’s death. The landlord acted appropriately and in line with its policy in declining to reassign the tenancy.
The letter said the resident could call to discuss matters if she would like more information. The landlord then met with her son on 29 November 2019 to discuss the decision. It explained the succession rules, but said that it would reconsider the request on medical grounds if he provided information from his GP.
The resident provided the landlord with a letter from his GP dated 4 November 2020, which explained why his GP thought he should be allowed to remain in the property. The landlord has not provided this Service with any evidence that it reassessed the request for the tenancy to be reassigned on medical grounds, despite its promise to reconsider this.
This Service has not seen evidence of any communication with the resident or her son about the assignment of the tenancy until the resident raised it at stage 2 of the landlord’s internal complaints process in January 2024. The landlord did not act appropriately in this respect, as the resident provided information the landlord had requested and it should have considered this and provided a response.
On 11 January 2024 the landlord again explained how succession works to the resident’s son, confirming that succession had already happened on 22 December 2017 following his father’s death. It said that its policy allows for a discretionary award of tenancy in his circumstances, but that if the applicant is under-occupying (there are more bedrooms than the household needs) they would be required to moved to a smaller property.
The Ombudsman considers there to have been service failure by the landlord in its handling of the resident’s son’s request to be added to the tenancy. It is appreciated that the resident’s son has mental health problems and is looking to ensure stability for his future housing. However, the landlord’s policy, which is in line with the Housing Act of 1985, clearly sets out succession rights.
As a succession has already taken place, there is no right to further statutory succession of this tenancy. The landlord has to balance the needs of all its residents and those waiting for properties, and in the event of the resident’s death, her son would be under-occupying the property if he was permitted to remain there. So, the landlord acted reasonably in declining to transfer the tenancy into his name or allow a further succession.
The landlord did not acknowledge the medical evidence the resident’s son provided, despite saying it would consider this. It did not provide any further explanation of why this did not change its position in relation to assignment of the tenancy. It should have considered the medical evidence and provided a formal response. However, the landlord’s complaints team did review the succession decision in conjunction with the housing team and were satisfied that there were no grounds to offer succession.
An order has been made for the landlord to pay the resident compensation of £100 to recognise the distress and inconvenience caused by its failure to respond to the resident’s son’s provision of medical evidence.

Anti-social behaviour

The landlord’s anti-social behaviour (ASB) policy classifies dog noise and ‘dogs in properties without its permission’ as grade three ASB cases. The policy sets out that it will commence investigations within 5 working days of receipt of consent from the complainant. The tenancy agreement states that resident’s must not keep a dog without the landlord’s written permission.
The earliest record provided to this Service of the resident reporting a noise nuisance was an email sent by the resident’s son on 31 December 2022. He reported that there was banging on the floor from the flat above that sounded like furniture being dragged around, as well as a dog barking.
The landlord’s records state that a visit was made in relation to this report on the same day, as well as further visits on 10 January, 23 January and 25 January 2023, however the record provided does not show what was observed on these visits. This Service has seen no evidence of any further action being taken at that time, or any communication taking place with the upstairs neighbour.
The resident’s son emailed the landlord again on 23 January 2023 and said that there was a constant noise nuisance and disturbance from the flat above. He also said that the neighbour had threatened him twice. No evidence has been provided that the landlord took any further action following the visit on 25 January, or opened an ASB case to investigate matters further.
From the information provided, the resident’s son did not contact the landlord again about the ASB related issues until 7 August 2023. The landlord did not act in line with its policy in January 2023 as it did not open an ASB case and assess the seriousness of the allegations. However, as it did not hear anything further from the resident or her son at that time, it is not unreasonable that no further action was taken.
The resident contacted the landlord again on 7 August 2023 to report a dog barking. The landlord installed noise monitoring equipment between 9 August and 13 September, but said that no evidence of noise nuisance was recorded during this period.
The resident’s son reported the dog barking on 5 further occasions between 11 August and 30 November 2023. On each occasion by the time the landlord had called him back the noise had stopped. When he reported the noise on 26 August the landlord agreed to visit and did so several hours later, when it could not hear any noise.
The resident’s son emailed the landlord on 28 November 2023, with the subject ‘urgent resolution needed for ongoing noise nuisance’. He said that he had been reporting continuous noise nuisance from the flat above for several years and the issue remained unresolved. On 30 November he emailed again saying that the neighbour claimed the dog was only there once a week but he said this was false and it was in the flat almost every day for long periods.
On 6 December 2023 the resident’s son emailed the landlord to say that he had written to the housing officer the previous week with serious concerns about the neighbour and received no response. The landlord raised a complaint and contacted him on 15 December to ensure it had the details of the complaint correct. It also asked him for his consent in writing to investigate the ASB, in line with its ASB policy.
In its stage 1 response of 21 December 2023, the landlord said that it takes all reports of ASB seriously. It told the resident’s son it needed his written consent to investigate his report and make allegations to the neighbour via a consent form. It said that the housing officer would make contact about the consent form. In a follow up email that day the landlord asked if he had contacted the environmental health team to ask them to investigate the noise nuisance.
The resident’s son responded to the landlord on 24 December 2023 and said that he had reported the noise nuisance on multiple occasions, however he did not say what, if anything, the environmental health team had done. He said that the neighbour was in direct violation of housing rules by keeping a dog without permission. On 5 January 2024 the landlord responded to say that it could not tell the neighbour to get rid of the dog without investigating the alleged noise nuisance.
It is not evident from the landlord’s records if it sent the resident’s son the consent form as agreed, or received back a signed copy. However, on 10 January 2024 the landlord progressed the investigation by visiting the neighbour. It spoke to the neighbour’s son who confirmed that they did have a dog and would be requesting written permission from the landlord for this.
The landlord was at the property for 20 minutes and did not hear the dog barking. It noted that the flat was fully carpeted so noise transfer should be minimal. It also spoke to 3 other neighbours who all said they had not heard a dog barking. The landlord emailed the resident’s son the same day to update him about this visit, which was a reasonable action for it to take.
On 11 January 2024 the resident’s son sent a recording which he said showed the neighbour admitting to having kept a previous dog for 16 years without permission. He said the landlord was failing to enforce the neighbour’s tenancy agreement. The landlord responded the same day to say that it had not witnessed any noise nuisance. He replied to say that the landlord was ‘sweeping aside’ the fact that the neighbour had owned 2 dogs without permission.
The resident’s son obtained a letter from his GP on 15 January 2024 which said that he had reported being subject to noise nuisance from the flat above for several months. The GP said this was causing both the resident and her son anxiety and the disruption had resulted in insomnia. As explained above, this Service cannot make a finding on the impact of this issue on the resident and her son’s health. It is also important to note that the GP was not a witness to any noise, and therefore this letter does not evidence that there was a noise nuisance.
The landlord wrote to the neighbour on 23 January 2024 and said it had been brought to its attention that they had a dog and a concern had been raised about the noise level. It asked them to take the necessary steps to minimise noise such as additional training.
The landlord emailed the resident’s son on 25 January 2024, saying that when it collected the equipment he had told it that there had been very little noise captured and had advised him it would be unable to act without evidence. It offered to have the noise equipment reinstalled, despite it usually only installing this equipment once due to long waiting times. He declined to have the equipment installed again.
On 1 February 2024 the resident’s son emailed the landlord, quoting a section of the tenancy agreement about dogs, saying that it needed to act on the breach. The landlord responded to say that the neighbour can ask for permission after obtaining the dog, which it could then grant. He replied to say that permission could not be sought after the fact.
The landlord wrote to the neighbour on 14 February 2024 to say that it had reviewed her request to have a dog and approved it. It said that it was confident she could responsibly care for the animal to ensure it would not cause disruption to other residents. It explained that if it did cause a nuisance she would be in breach of her tenancy and might be asked to remove the dog.
In its stage 2 response of 8 May 2024 the landlord confirmed to the resident’s son that it had granted permission for the neighbour to have the dog as there was a lack of evidence to prove there was a nuisance. It said it had asked him to keep a diary of any nuisance incidents and had made several visits to the block and not witnessed any noise nuisance.
The Ombudsman considers there to have been service failure by the landlord in its handling of the resident’s reports of anti-social behaviour by a neighbour. The landlord did take steps to investigate the noise from the upstairs neighbour, however it did not find any evidence of a noise nuisance from visits or noise monitoring equipment. So, the landlord took appropriate steps to investigate the allegation.
Whilst the tenancy agreement does state that it is not allowed for residents to keep a dog without permission, it is at the discretion of the landlord whether to grant this permission retrospectively. Given the lack of evidence of a noise nuisance, it was not unreasonable for the landlord to provide retrospective permission for the neighbour to keep the dog.
However, the landlord should have been aware that the upstairs neighbour was keeping a dog without its permission as soon as the resident’s son reported the noise issue. It would have been prudent for it to have reached out to the neighbour as soon as it became aware of the presence of the dog and discussed the need for them to request permission. This could have avoided much of the back and forth between the landlord and the resident’s son about whether or not the neighbour should be allowed to keep the dog.
An order has been made for the landlord to pay the resident compensation of £100 to recognise the distress and inconvenience caused by its handling of the issues with the neighbour and their dog.

Complaint handling

Landlords must have an effective complaint process to provide a good service to their residents. An effective complaint process means landlords can fix problems quickly, learn from their mistakes and build good relationships with residents. In this case the landlord’s complaint process lacked customer focus and took too long.
The landlord’s complaints policy says it will acknowledge a complaint within 5 working days and send its stage 1 response within 10 working days. At stage 2 it says it will respond within 20 working days.
The resident’s son emailed the landlord on 23 January 2023 about the noise nuisance from the flat above. He said that he had raised a complaint about this, but this Service has seen no evidence the landlord raised a complaint about the noise at this time, or responded to the concerns. He emailed again on 28 November about the noise and again said he had made repeated complaints, however the landlord still did not raise a complaint.
The resident’s son emailed the landlord again on 6 December 2023, saying that he had written to the housing officer the week before with serious concerns about the neighbour but had received no response. The landlord raised a stage 1 complaint at this time and emailed him on 7 December, saying that it would respond by 20 December.
The landlord sent its stage 1 response on 21 December 2023, slightly outside the 10 working day timescale it had set out when it acknowledged the complaint. However, the landlord had already missed multiple opportunities to deal with the complaint in January and November 2023, which led to a significant delay in the issues being investigated.
The resident’s son emailed the landlord on 4 January 2024 saying that he would be contacting this Service if it refused to take further action, making it clear that he was unhappy with the outcome at stage 1. The landlord did not identify the escalation request and the resident’s son contacted this Service on 26 March 2024 to ask for our help. We contacted the landlord on 9 April 2024 and asked it to respond.
The landlord emailed this Service on 15 April 2024 to acknowledge that it had now escalated the complaint, saying that the correspondence from the resident’s son was outside the complaint and it had failed to clarify whether he wanted the complaint escalated. It said it had now agreed a 10 day turnaround for a response with him.
The landlord sent its stage 2 response on 8 May 2024, outside the 10 working days it had agreed on 15 April, and 4 months after it should have recognised the resident’s son’s intention to escalate the complaint. This represented an unreasonable delay in responding to the complaint.
The Ombudsman considers there to have been maladministration in the landlord’s handling of the resident’s complaint. It failed to raise a complaint in January 2023, despite the resident’s son making it clear he was unhappy with the noise and had been trying to raise a complaint about this. It missed a second opportunity to raise the complaint in November 2023, and then failed to escalate the complaint to stage 2 of its internal complaints process. The resident’s son had to get this Service involved in order to prompt a response from the landlord, which was not appropriate.
An order has been made for the landlord to pay the resident compensation of £200 to recognise the distress and inconvenience caused by its complaint handling failures. A recommendation has also been made for it to review its processes to ensure that its staff are able to correctly identify and raise a complaint.

Determination

In accordance with paragraph 42(j) of the Scheme, the resident’s complaint about the landlord’s handling of her and her son’s personal information is outside the Ombudsman’s jurisdiction.
In accordance with paragraph 41(c) of the Scheme, the resident’s complaint about the landlord’s handling of repairs to the property is outside the Ombudsman’s jurisdiction.
In accordance with paragraph 52 of the Scheme, there was service failure by the landlord in its handling of the resident’s son’s request to be added to the tenancy.
In accordance with paragraph 52 of the Scheme, there was service failure by the landlord in its handling of the resident’s reports of anti-social behaviour by a neighbour.
In accordance with paragraph 52 of the Scheme, there was maladministration by the landlord in its handling of the resident’s complaint.

Orders

Within 28 days of this report the landlord to pay the resident total compensation of £400, made up of:
1. £100 for its handling of the resident’s son’s request to be added to the tenancy.
2. £100 for its handling of the resident’s reports of ASB.
3. £200 for its complaint handling.

Recommendation

The landlord to review its processes to ensure that its staff are able to correctly identify and raise a complaint.