Hyde Housing Association Limited (202233340)

REPORT

COMPLAINT 202233340

Hyde Housing Association Limited

21 October 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 response to the resident’s reports about the conduct of its staff member.
This Service has also considered the landlord’s handling of the complaint.

Background

The resident is a leaseholder of the landlord. The lease began on 16 December 2004. The property is a two-bedroom maisonette on the third floor. The landlord has no listed vulnerabilities for the resident.
On 27 January 2023, the resident raised a complaint. He said he had made several reports to both the landlord and its contractor who employed the concierge officer. The reports were that the concierge officer had been smoking weed in the communal area and had been burning incense to mask the smell. After he had raised his concerns, the officer became hostile.
The resident said the officer had made racist and homophobic comments to him and members of his household. He was dissatisfied that no action had been taken. Matters then escalated and led to a physical altercation in October 2022. The resident considered the incident in October 2022 could have been avoided if the landlord had taken action sooner. On 25 April 2023, this Service contacted the landlord on the resident’s behalf because he had not received a response to his complaint.
On 5 May 2023, the landlord sent a stage 1 response. It said that it did not uphold the complaint. In accordance with its complaint policy, it was only able to fully investigate service failures that may have occurred up to 6 months prior to receipt of the complaint. Although it acknowledged that the resident had been contacting it about this prior to that period.
It said that when the physical altercation was reported to the landlord it had acted immediately to permanently remove the officer from site to avoid any further situations. The officer in question was not a direct employee of the landlord so it had raised the conduct issues with its contractor to investigate and communicate its findings to the resident. There had been a delay in the investigation due to the officer’s absence from work and other issues beyond its control. The officer returned to work the week beginning 24 April 2023. It had been informed that the investigation would be resumed, and the contractor would contact the resident directly.
The resident remained dissatisfied. He said he did not have a “business relationship” with the landlord’s contractor. He considered his landlord should take responsibility for its lack of action. He was not aware that there was a 6-month time limit to raise a complaint. He had raised the issues as they were happening and up until now, but he had not received a response. He did not consider that his complaint was out of time.
On 12 May 2023, the landlord sent a stage 2 response. It said that it would not change its decision. It had made its decision based on the information the resident has sent via the Housing Ombudsman Service. It had checked all the details of the complaint thoroughly and responded to all the points made. It considered it had provided a fair reply.

Post complaint

The resident remained dissatisfied and contacted this Service. He did not agree that his complaint was out of time. He wanted the landlord to fully investigate its handling of the matter.
The landlord informed this Service that since the complaint its contractor had completed its investigation. It said that disciplinary action had been taken but due to GDPR its contractor could not provide further details about the specific action it had taken.

Assessment and findings

The landlord’s response to the resident’s reports about the conduct of its staff member.

It is acknowledged that criminal proceedings commenced in October 2022 after an altercation took place between the resident and the concierge officer. The resident considers that the landlord’s failure to act led to matters escalating which resulted in a criminal case being brought. This Service cannot determine whether a landlord’s failure to respond led to a criminal case being brought. The purpose of the investigation is to assess whether the landlord responded appropriately to the resident’s concerns about the concierge, and to decide whether its actions were fair and reasonable, taking all the circumstances of the case into account and based on the evidence available.
The Ombudsman will not form a view on whether the staff member’s actions themselves were appropriate. Instead, it is this service’s role to decide whether the landlord adequately investigated and responded to the complaint, and took proportionate action based on the information available to it. For staff conduct complaints, landlords should carry out an investigation. This may include conducting interviews and gathering evidence from all parties, to make an informed decision based on its findings.
It is recognised the situation was distressing and inconvenient for the resident. Its adverse impact on his welfare is also acknowledged. It may help to explain that, unlike a court, the Ombudsman is unable to establish liability, so we cannot calculate or award damages. Nor can we evaluate medical evidence. On that basis, the resident’s concerns around loss of earnings, legal costs and any damage to his health are beyond the scope of this assessment. The Ombudsman can however assess whether a landlord offered sufficient redress for the distress and inconvenience caused.
From correspondence this Service has seen, the resident first reported the issues to the landlord in July 2022. It is acknowledged that when the resident contacted the contractor, he mentioned an incident in July 2021 and others which took place in May and June 2022. This Service does not dispute the resident’s version of events however the evidence does not show that these were reported to the landlord. This service has therefore only investigated the landlord’s response to the resident’s reports from July 2022 onwards.
The landlord’s contractors code of conduct states that any complaint arising from a dispute in any form, between a resident and contractor must be referred immediately to its property service team and will be handled in accordance with its complaints policy.
The lease states that the resident should pay a proportionate part of the reasonable expense, and outgoings incurred by the landlord in the repair maintenance improvement renewal and insurance of the building and the provision of services therein. The resident pays an annual service charge for the concierge service.
The landlord informed this Service that the concierge officer was employed directly by the landlord. In December 2020 management of the concierge service was outsourced to a contractor and the concierge officer transferred his employment to that contractor.
The evidence provided to this Service shows that in July 2022 the resident reported that the concierge officer was “smoking weed and burning incense”. He said that when he approached the concierge officer, he had become aggressive. He asked the landlord to call him to discuss his concerns. The landlord responded 3 days later. It said that it had sent the resident’s email to its contract manager. It is unclear whether this was the same team as the property services team as referred to in its code of conduct. However, there is no evidence to show that it followed its contractors code of conduct by handling the report in accordance with its complaint policy. That it did not was a failing.
The resident then had to chase the matter up again on 8 August 2022 as he had not heard from anyone. This was a further failing in its handling of the matter. The failure to respond would have left the resident feeling uncertain about what if any action the landlord was taking. It also caused him further time and trouble having to chase the landlord further. The landlord did respond on 12 August 2022 and advised that its contractor was looking into the matter. It agreed a date when it would call the resident. The evidence does not show that the landlord had raised the issues with its contractor. Furthermore, the evidence fails to show whether it called the resident as arranged despite the resident chasing this up again with the landlord.
The records do not show what action was taken in response to the resident’s initial concerns. Record keeping is a core function of a housing service. The lack of records showing what action it took means that this service cannot fully assess the landlord’s response. This is a failing in its record keeping and has caused the resident time and inconvenience in having to pursue this matter further. The record keeping failing has also been considered in the order and compensation below.
The resident contacted the landlord again on 14 September 2022. He reported that because he had made a complaint, he had been threatened by other residents who were friends of the concierge. The landlord responded on 29 September 2022 which was 16 days after the resident and reported his concerns. This was an unreasonable timeframe particularly given that the resident’s concerns included threats being made to him.
When the landlord did respond it advised the resident to contact its contractor directly. This response was inadequate. The resident pays his service charge to the landlord for the provision of the concierge service. It was therefore appropriate that he raised his concerns with his landlord. The landlord should have therefore investigated the resident’s concerns itself with its contractor. Furthermore, it failed to consider whether a risk assessment was necessary given that the resident had said he had felt threatened.
The resident informed the landlord that he had already contacted the contractor directly. Again, the records fail to show whether the landlord responded or took any further action. It is vital that landlords keep clear, accurate and easily accessible records to provide an audit trail. If there is no audit trail, this Service will not be able to conclude that an action took place.
On 14 October 2022, a physical altercation occurred between the resident and the concierge officer. The resident reported the incident to the landlord on the same day. The landlord said in its complaint response that as soon as it was aware it ensured that the concierge officer was removed from the site to avoid any further situations. There is no evidence to show exactly when this was actioned. This is a further record keeping failure. However, communication after the incident does support that the concierge officer was removed at some point after the incident took place.
The altercation between the resident and the concierge officer was serious and criminal proceedings were raised as a result. The landlord’s action to ensure the concierge officer was removed was therefore appropriate in the circumstances.
The landlord said within its stage 1 complaint response that at the point the resident’s complaint was raised it asked its contractor to investigate the conduct of the concierge officer. Although this should have been actioned earlier given the resident had been reporting issues since July 2022. The delegation of the investigation to its contractor was reasonable. This is because the concierge officer was employed by its contractor. However, it was the landlord’s responsibility to ensure the investigation was completed in a timely manner and to then report the findings to the resident.
The resident raised his complaint on 27 January 2023. The evidence does not show that the landlord instructed its contractor to complete an investigation at that point as it said it had.
In March 2023 correspondence between the landlord and the resident stated that its ASB team had investigated the homophobic and racist allegations but there was insufficient evidence. The landlord failed to explain what action it had taken to investigate these issues. It was also unclear why it would investigate this but not all the issues that the resident had raised. It was therefore unclear whether the landlord had done all it could to investigate the matter. Furthermore, the evidence did not show that any investigations that had been completed had been done within a reasonable timeframe.
It said that the issues around smoking cannabis and burning incense had been passed to its contractor to investigate. The landlord later told this Service that its contractor had also investigated the homophobic comments reported. This is confusing and does not provide reassurance that all the issues had been adequately investigated. The landlord said that the investigation by its contractor had been put on hold based on the member of staff’s absence.
The landlord’s correspondence in March 2022 acknowledged that it had failed to keep the resident updated with progress of the investigation. This failing was not however acknowledged within the landlord’s complaint responses. The landlord said within its complaint response that its contractor would contact the resident directly to update him. This response did not offer any reassurance to the resident that it would monitor the matter to ensure resolution which was a failing.
It is acknowledged that the landlord was unable to share the precise disciplinary action that had been taken due to GDPR which was reasonable. It is unclear however whether the outcome of the investigation had been shared with the resident. This has been considered in the order made below.
In summary this Service considers the above failings amount to maladministration. The landlord’s record keeping was poor. It failed to show that it had responded or taken any action in respect of the resident’s reports about the behaviour from July 2022 to October 2022. It also failed to consider if there were any risks to the resident which was concerning given the reports the resident had made.
Its overall communication about the matter with the resident was poor. The landlord failed to take ownership of the issues raised. It failed to show what action it had taken to investigate. It also failed to monitor progress where it had delegated the investigation to ensure that the resident was kept updated. The resident had to live with the distress and uncertainty of what if any action the landlord was taking. He also had to spend considerable time and effort chasing the landlord.

The landlord’s handling of the complaint.

The landlord’s complaint procedure states that all straightforward complaints about staff conduct which relate to customer dissatisfaction about customer care or standards of behaviour should be raised as a stage 1 complaint.
The landlord operates a two-stage complaint procedure. Its policy advises that it aims to respond to complaints at stage 1 within 10 working days and within 20 working days if a complaint is escalated to stage 2.
The landlord failed to consider whether its complaint procedure applied and whether it was appropriate to raise a stage 1 complaint in July 2022. This was when the resident first expressed his dissatisfaction about the conduct of the concierge officer. That it did not was inappropriate and a missed opportunity to try to put matters right at an earlier stage.
The complaint process was then hard to access for the resident. The resident was cost time and trouble in needing to seek assistance from this Service to get a response. The resident originally raised his stage 1 complaint on 27 January 2023. The landlord took 62 working days to provide its response on 26 April 2023. This was not in accordance with its own timescales set out in its policy. The landlord failed to acknowledge or provide any explanation for its delay within its complaint response. This was a failing in its handling of the complaint.
The stage 1 complaint response itself was confusing because it set out that it was only able to fully investigate service failures that occurred up to 6 months prior to receipt of the complaint. It said this was in accordance with its complaints policy.
This was inappropriate because it meant that it would not consider the reports the resident had made in July 2022. Had it raised the complaint at the appropriate time then it would have had to investigate its handling of the reports made prior to the incident in October 2022. This was another missed opportunity to resolve matters and was a further failing in its handling of the complaint.
Within the stage 1 complaint the landlord said it had instructed its contractor to investigate at the point the resident raised his complaint. The evidence does not support this statement, and it is unclear how the landlord had concluded that this is the action it took. This part of the complaint response was therefore confusing and contradicted the action the records provided to this Service.
The stage 1 complaint response also lacked empathy. The landlord said that it had instructed its contractor to complete an investigation in respect of the behaviour of the concierge which it had at that point. The response did not however show a meaningful assessment of how the failings had occurred. As in when and how it had responded to the reports made. The resident experienced an inconvenience of raising concerns about the landlord’s handling of the matter, without receiving a detailed response.
The landlord’s stage 2 complaint response re-affirmed its position as set out in its stage 1 response. This was a further missed opportunity for the landlord to consider how it had handled the matter. This included considering its delays in its complaint response at stage 1 and how relevant this was to how far back it needed to investigate.
This Service considers the above complaint handling failures amount to maladministration. At stage 1 of the complaint there was a failure to respond within the required timescales. The responses demonstrated a lack of investigation and curiosity. The complaint response failed to put things right, consider redress or offer a meaningful apology. The landlord failed to learn from its mistakes. In determining an appropriate order for compensation, consideration has been given to the Ombudsman’s guidance on remedies.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s response to the resident’s reports about the conduct of the concierge officer.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s handling of the complaint.

Orders

The landlord is ordered to do the following within the next 28 days:
1. Apologise to the resident for the failures identified by this investigation.
2. Pay the resident £650 compensation broken down as follows:
  1. £400 compensation for the distress and inconvenience caused in its response to the resident’s reports about the conduct of its staff member.
  2. £250 compensation for the distress and inconvenience caused in its handling of the complaint.
The landlord is ordered to do the following within 6 weeks.
1. Write to the resident to confirm the outcome of the investigation into the conduct of the concierge officer if this has not been done already. A copy of this should be provided to this Service also within 6 weeks.
In accordance with paragraph 54(g) of the Housing Ombudsman Scheme, the landlord is ordered to carry out a senior management review of this case to determine how it will prevent a recurrence of the failings identified in this report in future. The landlord must complete the review within 8 weeks of the date of this report and provide the Ombudsman with a copy of its review and resulting action plan. The review must include (but is not limited to) consideration of the following:
1. Ensuring its responses to complaints about staff conduct align with its policies and procedures.
2. Staff training and system needs regarding how it records and responds to reports about staff conduct.
3. How it will monitor its contractors to ensure that any investigations it delegates are completed in a timely manner and the resident is kept informed.