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Housing 21 (202122678)

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REPORT

COMPLAINT 202122678

Housing 21

13 November 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 landlord’s decision to issue the resident with an antisocial behaviour (ASB) warning letter.
  2. The landlord’s handling and response to the resident’s complaint.

Background

  1. The resident lives in a ground-floor flat. There are neighbouring properties to either side and above, sharing adjoining walls. The resident reported a number of issues to the landlord, including noise, which the resident and landlord continued to correspond about throughout 2021.
  2. On 16 July 2021, the landlord issued the resident with an antisocial behaviour (ASB) warning letter. The landlord alleged that 3 incidents had taken place:
    1. On 9 July 2021, the resident had “entered another property without permission and interrupted a private conversation between another resident and an employee of the landlord”.
    2. On 12 July 2021, the resident visited the housing office, where she “shouted at an employee” and made “discriminatory statements” about other residents.
    3. On 12 July 2021, the resident shouted at a staff member over the phone.
  3. On an unknown date between 16 and 28 July 2021, the resident wrote to the landlord, disputing its account of events. She insisted that the alleged incident on 9 July 2021 had never happened and disputed elements of the others. She requested copies of the landlord’s evidence of the alleged incidents. On 20 July 2021, the resident’s son met with the landlord about ongoing issues. The ASB letter was discussed, and the landlord provided its evidence.
  4. On 28 July 2021, the resident’s daughter wrote to the landlord, expressing dissatisfaction that the landlord had issued the ASB warning letter without first speaking to the resident. She was unhappy that the evidence the landlord had provided had been “a 2-page log describing the alleged incidents”, saying that this was not conclusive enough to base the warning letter on.
  5. On 27 January 2022, the resident wrote to a peer in the House of Lords, detailing multiple concerns, including her view that she was wrongfully issued an ASB warning letter. The peer confirmed receipt of this on 17 February 2022.
  6. On 21 April 2022, the resident chased the landlord for a response. The landlord met with the resident on 4 May 2022 and issued its stage 1 response on 6 May 2022. It stated that the evidence the resident had submitted to dispute the events on 9 July 2021 had not been conclusive but it was confident the alleged incidents on 12 July 2021 did occur as described. It said however that it would remove the ASB warning letter from the resident’s file as requested, due to the effect on the resident’s health and the time elapsed since the last alleged incident.
  7. Between 10 May 2022 and 13 May 2022, the landlord and resident corresponded about the stage 1 response. Although the ASB warning letter had been removed, the resident remained unhappy because she disagreed with the landlord’s assertion that the events had taken place in the way they were alleged. The resident was concerned with the landlord’s account of the incident on 9 July 2021; the resident felt the landlord had not fairly considered the evidence she submitted disputing her alleged location at the time. The resident was also unhappy with the landlord’s complaint handling.
  8. The landlord issued its stage 2 response on 13 June 2022. The landlord stated that from the evidence it held, it was not able to corroborate the resident’s accounts of the 3 alleged incidents. It apologised however, stating that upon review, it had not followed its ASB policy in the way it had collected evidence, leading to the ASB warning letter being issued unfairly. It apologised for delays in complaint handling, citing an “oversight”. It offered £50 compensation for the wrongly issued ASB letter, and £20 for delays in complaint handling.
  9. Throughout this period, the resident was in contact with this Service regarding separate issues. The resident explained that she remained unhappy because she believes the allegation of 9 July 2021 was fictitious, which the landlord had not acknowledged. She wanted the Ombudsman to investigate and determine that the incident never occurred, and that the allegation made was “a lie”.

 

Assessment and findings

The landlord’s decision to issue the resident with an antisocial behaviour (ASB) warning letter

  1. The Ombudsman’s Dispute Resolution Principles are to ‘be fair’, ‘put things right’ and to ‘learn from outcomes’.
  2. The landlord’s ASB procedure states, “Due to the nature of the services Housing & Care 21 provides, it is possible that from time to time, some residents and other customers will put their opinion across in a way that is discourteous towards staff. Much of the time this is directed at the organisation rather than as personal abuse or harassment. Whilst we do not welcome or condone rudeness of this sort, it should not be treated as ASB unless it is done repeatedly and routinely.” It states that in such circumstances, a robust and timely investigation will be undertaken.
  3. The policy outlines the processes the landlord must follow when it is treating an incident as ASB, such as to issue an ASB warning letter. This includes conducting a “robust and timely investigation”, part of which is to “arrange an interview with the alleged perpetrator as soon as possible”. The landlord acknowledged in its stage 2 response that this had not happened, and that the landlord had therefore not followed its ASB procedure. It said that because it had issued the ASB warning letter without sufficient evidence, it had issued it wrongly. Although the landlord acknowledged this error in its stage 2 response, it added that it still felt it was “probable” that its version of events was accurate. The resident was unhappy with this conclusion and that the landlord had assessed the evidence she submitted as “inconclusive”. She asked the Ombudsman to independently assess the same evidence.
  4. The resident’s submission of evidence primarily focused on disputing the landlord’s allegation regarding the incident of 9 July 2021. The resident’s account is that she left the area at 10.58am on the day in question. The landlord’s ASB log showed the incident was logged at 11.30am. The resident therefore felt this proved that the allegation was false. The resident submitted a satellite navigation report, demonstrating the details of a journey she made that day. It reflected usual travel times for the journey and showing heavy traffic, corroborating elements of the resident’s earlier account to the landlord. The report showed a two-legged journey the resident took, lasting approximately 2 hours 18 minutes. However, the report shows the resident left the area at 11.59am, an hour later than in her written account. The resident submitted an explanation for this alongside the report, citing a technical issue where the software sometimes shows the user to be in the wrong time zone. The Ombudsman has found no reason to doubt the resident’s account of events, but has been ultimately unable to corroborate the journey details based on this evidence. The Ombudsman notes that if it had, a problem would remain in that it is unclear if the time cited in the landlord’s record of the alleged incident can be relied upon. This is because it is unclear if the time the alleged incident took place at 11.30am, or if 11.30am is the time it was recorded on the system.
  5. The resident said that she had called a relative shortly after she arrived at her destination, at 13:51, and submitted evidence of this call to both the landlord and this Service. The resident highlighted that if she had left at 11.59am, she would still have been driving at the time this call was made. Again, although the Ombudsman has no reason to doubt the resident’s statement, there is no evidence present which rules out the possibility that the call was made while driving. In later conversations with this Service, the resident explained that she felt the evidence she had submitted was sufficient to prove her whereabouts and to therefore conclude that “the staff member who made the allegation had lied”. Responding to the Ombudsman’s suggestion that further evidence might be required, the resident asked this Service to write to her with a “request to her mobile provider to identify the mast utilised to make the call”. The Ombudsman does not feel this is an appropriate step to take, because as above, corroborating the resident’s timeline of events would not definitively prove that the incident did not occur. While it may cast doubts on the evidence the landlord relied on, it would not necessarily prove that the allegation was “a lie”.
  6. The Ombudsman acknowledges that the resident also submitted a witness statement to the landlord, confirming that she had been seen leaving the area at 10.58am. However, in respect of what is fair in all circumstances of the case, this Service cannot hold this in any higher regard than the witness statement provided by the staff member on 9 July 2021. This highlights why it is important that the landlord should have followed its ASB procedure and investigated more thoroughly at the time. Had it done so, it would have been able to cross-examine witness statements and more accurately respond to the resident’s concerns.
  7. On 20 July 2021, the resident’s son requested CCTV footage in an attempt to corroborate the resident’s account, in a meeting with the landlord. On 28 July 2021, the resident’s daughter requested that the landlord check its CCTV footage. These were reasonable requests, which may have been able to provide clarity on the events of the date in question. It would also have been an appropriate step to take by the landlord proactively, given that its ASB procedure required it to conduct a “robust and timely investigation”. There is no evidence that the landlord considered this request. By failing to consider checking the CCTV, but keeping the ASB warning letter in place, the landlord’s treatment of the resident was heavy-handed.
  8. In the landlord’s stage 2 response, it acknowledged that processes had not been followed and that the warning letter had been wrongly issued. It offered £50 compensation and apologised for the failing. It added that the same failing had occurred, to a certain extent, in all 3 alleged incidents. The ASB warning letter had already been removed on 6 May 2022, at the time of the stage 1 response, in respect of the effect it was having on the resident. Although the landlord had tried to follow the Ombudsman’s Dispute Resolution Principles to ‘be fair’ and ‘put things right’, there is no evidence that the landlord sought to ‘learn from outcomes’. There was therefore a service failure in the landlord’s decision to issue the resident with an ASB warning letter.
  9. The compensation offered was also lower than would be expected in this case. The Ombudsman’s Remedies guidance states that where a failure has occurred which adversely affected the resident, where the landlord has attempted to put things right but failed to adequately address the detriment to the resident, compensation of over £100 is due. However, this investigation acknowledges that the resident had frequently stated that financial compensation would not be helpful in resolving the complaint. Nevertheless, orders are made below in recognition of the resident’s experience.
  10. Finally, it is noted that the landlord appears to address behaviours towards staff members/the organisation via its ASB policy. The Ombudsman recommends landlords should set out their approach to managing customers who present unacceptable behaviours to the organisation by implementing an unacceptable behaviour policy. The document should explain what actions a landlord can take to manage such situations. Such a policy should reflect the fact that all customers should be dealt with fairly, and consistently and have a right to be heard, understood and respected. A recommendation is made in this regard below.

Complaint Handling

  1. The landlord is required to follow the Ombudsman’s Complaint Handling Code (the Code). The Code defines a complaint as “an expression of dissatisfaction, however made”. On an unclear date shortly after the resident’s family had made requests for CCTV to be checked, the resident wrote to the landlord, disputing the landlord’s account of the alleged incident. She ended the letter by asking “please advise how you can send an ASB warning letter without conducting a full investigation?”. There is no evidence that the landlord responded to this letter.
  2. On 28 July 2021, the resident’s daughter raised a further expression of dissatisfaction by writing to the landlord. She was unhappy that the landlord had not conducted a fair or thorough investigation, and asked for “a copy of the policies and procedures in place”, because the landlord had “at no point spoken to the resident when collecting evidence”. The landlord should have raised these concerns as formal complaints at the time, but failed to do so. There is no evidence to suggest that the landlord sent its policies to the resident or her daughter, or checked that it had correctly followed its own procedures as a result of these complaints.
  3. The Code states that a stage 1 response must be issued within 10 working days. On 27 January 2022, the resident complained to a peer in the House of Lords, who had a working relationship with the landlord. This was passed to the landlord on 25 March 2022, which raised a stage 1 complaint. Because the complaint was not made through the appropriate channels, the delay in receiving the complaint does not represent a failing on the part of the landlord. However, it did not respond at stage 1 until 6 May 2022, therefore exceeding the timescale set out. The landlord was right therefore to apologise for delays in complaint handling in its stage 2 response.
  4. The landlord offered £20 compensation at stage 2, in respect of its complaint handling. However, the landlord had failed to recognise that it missed earlier opportunities to raise the resident’s concerns through the complaints process, and to check if it had followed its ASB policy. The resident reported feeling highly distressed for the duration the ASB warning letter was in place for. The landlord’s issuing of an ASB warning letter, combined with the delay it took the landlord to appropriately respond to the resident’s concerns, contributed to a loss of faith in the landlord. The evidence shows that the resident and her family had gone to considerable time and effort to “clear her name” as a result. Although it had acknowledged a detriment to the resident caused by the allegations, it nevertheless repeated in its stage 2 response that it was “probable” that the incidents had occurred. This was both unnecessary and inappropriate, because it was aware that this would continue to upset the resident and leave the matter unresolved. It had also accepted that it did not have sufficient evidence to support that finding. This served to undo any good faith it rebuilt during the complaints process; there was a service failure in the landlord’s complaint handling.
  5. The Ombudsman notes that in communications, the resident has repeatedly stated that she is not motivated by financial compensation. However, the Ombudsman’s remedies guidance states that where the landlord has acknowledged failings and made some attempt to put things right, but failed to address the detriment to the resident, a minimum of £100 compensation is due. Orders are made below.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure in the landlord’s decision to issue the resident with an antisocial behaviour (ASB) warning letter.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure in the landlord’s complaint handling.

 

Orders

  1. Within four weeks of the date of this determination, the landlord must:
    1. Apologise in writing for the distress caused by the landlord’s wrongful issuing of an ASB warning letter.
    2. Pay to the resident £350 compensation, made up of:
      1. £200 for the distress caused by the wrongful issuing of the ASB warning letter.
      2. £150 for the failures in complaint handling. The £70 already offered may be deducted from this amount, if it has been paid already.
    3. Provide the Ombudsman with evidence that it has conducted training for all relevant staff on the anti-social behaviour (ASB) policies and procedure, since the date of the stage 2 response. If it cannot do this, it should organise this training and confirm the details with the Ombudsman.

Recommendation

  1. The landlord should consider developing a separate unacceptable behaviour policy, with reference to the Ombudsman’s own guide for landlord’s on this topic: https://www.housing-ombudsman.org.uk/landlords-info/guidance-notes/managing-unacceptable-behaviour-policy/