Islington Council (202300321)

REPORT

COMPLAINT 202300321

Islington Council

08 April 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 decision to withdraw permission for the resident’s dog to access the communal garden.
The Ombudsman has also investigated:
1. The landlord’s complaint handling.
2. The landlord’s knowledge and information management (KIM).

Background

It is noted there are some instances where the resident has been represented by others, including family members, when addressing the landlord. For the purposes of this report, all communication on behalf of the resident will be referred to as if coming from the resident.
The resident holds a secure tenancy at the property, a flat with a basement floor level entrance in a converted house. The resident shares access to a communal garden with 3 neighbours.
The resident was granted permission for her dog to access the communal gardens, under agreed conditions, in November 2021. The permission was subsequently withdrawn and the resident noted in her initial complaint of 2 March 2022 that this was during a phone call on 23 December 2021. The landlord told the resident this was based on evidence of a breach of the conditions. The resident appealed this decision through the complaints process and the landlord agreed the permission has been unreasonably withdrawn on 15 December 2022. The landlord is yet to formally reinstate the permission.
The resident made a complaint to the landlord on 2 March 2022, in which she stated she had not broken the conditions allowing the dog to access the garden and felt the decision was unfair. The landlord responded to the stage 1 complaint on 23 March 2022 and said it had photographic evidence of a breach and that permission would not be reinstated.
The resident escalated the complaint on 9 June 2022 on the grounds that the landlord had not followed due process when withdrawing the permission. She specifically noted that the photographic evidence relied upon did not show a definite breach. The landlord responded to the stage 2 complaint on 8 December 2022 and apologised for the stress caused by the matter. The landlord acknowledged that the evidence used to withdraw permission was not “clear or robust” and that it would have been more appropriate to have issued a warning letter. The landlord offered £200 compensation, comprising £100 for distress and £100 for the delayed complaint response. The landlord did not agree to reinstate the permission, noting that anti-social behaviour (ASB) issues in the block had abated following withdrawal of the permission.
In a stage 2 follow up letter to the resident dated 15 December 2022, the landlord overturned its stage 2 decision and acknowledged permission had been withdrawn unreasonably and therefore would be reinstated. The landlord said any ASB issues would need to be dealt with as a separate issue.
When referring the matter to this Service on 3 April 2022, the resident had not received the written reinstatement of permission and as of the date of this report, the resident is still yet to receive the confirmation she requested. The resident wants the landlord to issue a written confirmation granting permission for her dog to access the garden and to inform the neighbours of the reinstatement.
For the avoidance of doubt, any mention of ASB in this report is to provide relevant context only and the landlord’s response to any reports of ASB has not been investigated as an element of the complaint. It is recommended that the landlord contact the resident regarding any ASB reports and follow its relevant policy in relation to this.

Assessment and findings

The landlord’s decision to withdraw permission

The landlord has acknowledged that permission for the resident’s dog to access the garden was unreasonably withdrawn in its stage 2 response follow up letter of 15 December 2022 and instructed that the permission be reinstated. Though it was reasonable for the landlord to have acknowledged this failure, it is relevant to briefly review the process by which permission was withdrawn and reinstated to assess the adverse effect on the resident and the proportionality of the redress offered.
The tenancy conditions outline that residents must seek permission to keep a pet and that this permission will not be unreasonably withheld, delayed or withdrawn. There are no specific tenancy conditions or policy provisions outlining the process for granting permission for pets to access communal gardens.
The landlord’s Responsible Dog Owners Agreement outlines that residents must keep their dog under control at all times, clear up the dog’s faeces and dispose of it hygienically. It also states dogs must not foul or roam unaccompanied in communal areas.
The resident sought permission to keep the dog on 30 September 2020 and permission was granted on 10 November 2021. In granting permission, the landlord said “the dog is not allowed to run free, defecate or be kept in communal gardens therefore we do not give permission for your dog to be exercised or run free within the communal garden”. The landlord goes on to say if any reports are received that the dog is fouling or exercising in the garden then permission to keep the dog will be withdrawn.
The landlord used the principles outlined in the tenancy conditions and Responsible Dog Owner Agreement when considering allowing the resident’s dog access to the communal garden. This was reasonable in the absence of a specific policy or tenancy agreement provision concerning granting permission for pets to access communal gardens.
The resident contacted the landlord twice in November 2021 in relation to the permission letter, seeking clarification on the permission terms and a meeting was arranged for 1 December 2021. The landlord’s call notes of the same date note permission was granted for the dog to access the garden on a lead. The resident has told this Service that an agreement was reached on the following conditions:
1. The dog should be accompanied at all times.
2. The dog should be on the lead at all times.
3. The dog should not defecate in the garden.
4. The dog should not exercise in the garden.
The resident followed the meeting up by email and said she awaited the “letters of confirmation […] re dogs”. There is no evidence that the landlord provided the resident with the letters she requested. This demonstrates poor communication on the landlord’s part and is an example of poor record keeping standards. Good records mean that clear information is readily available to any staff member who becomes responsible for a particular matter. In this case, it was important for the landlord to note the conditions of the agreement in case a breach of conditions was reported. It is unclear how the landlord undertook an impartial complaints investigation without at least acknowledging that it had significant gaps in its own records. This service failure has been addressed later in the report.
The resident told this Service that the landlord withdrew permission for the dog to access the communal garden on 23 December 2021 in a telephone call. The resident told this Service that the withdrawal of permission was based on a photograph of the resident breaching one of the conditions agreed upon in the meeting of 1 December 2021. The resident refuted the allegation and told the landlord she had not broken any of the conditions. The landlord was not forthcoming in sharing the photograph with the resident and she had to make a request under the Freedom of Information Act to see the photographs. This further delayed the resolution of the issue. Though the landlord later acknowledged in its stage 2 response that the photograph could not be taken as conclusive evidence of a breach, it did not apologise for not sharing the photograph with the resident when requested, nor did it reflect on how it could have better handled the situation.
The landlord has not been able to provide call notes from the telephone call on 23 December 2021 and there is no written record of the withdrawal of permission. It was unreasonable of the landlord not to have formally confirmed this conversation in writing and provided the resident with an explanation and details of whether she could appeal the decision. The lack of written records further indicates a pattern of poor record keeping and this has been assessed later in this report.
The resident went to great lengths to try and demonstrate the good nature of the dog and made the landlord aware of how special the dog was to her in the original complaint and in the escalation request. In its stage 2 response of 8 December 2022, the landlord acknowledged how important the dog was to the resident, referring to the dog as an emotional support for the resident’s vulnerabilities, and suggested some ways the issue should have been dealt with. It said it could have:
1. Consulted all the neighbours in advance of the original permission being granted.
2. Granted permission on an initial trial basis.
3. Issued a warning letter rather than an outright withdrawal of permission.
4. Only withdrawn permission if robust and conclusive evidence was provided.
The landlord recognised its failures in withdrawing the permission but refused the request to reinstate permission. The landlord said “in consideration of previous and ongoing ASB issues within the block, noting issues have abated following withdrawal of the permission, and that mediation offered has not been accepted by the tenants, it is my recommendation that permission is not reinstated”. Having acknowledged its failings in withdrawing permission for the dog to access the garden the landlord acted unreasonably in refusing to reinstate the permission.
Though the landlord later acknowledged that the ASB reports should have been dealt with separately in its stage 2 follow up letter of 15 December 2022, it offered no apology or recognition of its heavy-handed approach in the matter. The resident has told this Service that she has not been provided with a current action plan to manage the ongoing ASB and we have made a recommendation concerning this below.
The landlord’s compensation policy says it will offer in the region of £100-£300 for distress but that each case should be considered individually, taking into consideration the time involved amongst other factors.
The landlord offered £100 for distress in its stage 2 response. This amount may have been proportionate had the issue been resolved in a timely manner. However it appears the landlord has not considered the significant distress this issue had caused the resident over an extended period of time, from when the complaint was escalated in June 2022 to the stage 2 response in December 2022. Whilst the landlord has acknowledged failings and made some attempt to put things right it has not made a proportionate offer of compensation.
As of the date of this report, the resident is still waiting to receive the written permission offered as a remedy in the stage 2 follow up response of 15 December 2022. This is 15 months after the stage 2 response was issued and 27 months after the initial withdrawal of permission. Paragraph 6.5 of the Complaint Handling Code (the Code) states that the landlord should propose a timescale when offering a remedy and any remedy proposed must be followed through to completion. The landlord did not commit to a timescale in this case and it has not been able to provide an explanation for its failure to act. The landlord has failed to put things right which is a failing in line with paragraph 52 of the Scheme. We have made an order concerning this below.
In conclusion, though the landlord acknowledged the permission had been unreasonably withdrawn, it failed to put things right in a timely manner. The landlord’s complaints policy notes it will deal with complaints objectively, impartially and professionally. The landlord made a decision to withdraw permission based on inconclusive evidence and then a further decision to continue to withhold permission based on unrelated ASB reports. The landlord failed to apologise and failed to reasonably compensate the resident for the length of time the issue had been ongoing and the associated distress this caused. Therefore, this investigation has found maladministration in its handling of this issue.

Complaints handling

It is noted there are sections of the landlord’s complaints policy in use at the time of the resident’s complaint, that do not adhere to the Housing Ombudsman’s Complaints Handling Code (the Code). However, this case pre-dates the current version of the Code and it appears the landlord has since updated its complaints policy, as published on its website.
The landlord’s complaints policy states it will treat complaints objectively and should make sure the residents feel listened to and that their concerns are taken seriously. The landlord’s stage 1 response of 23 March 2022 quoted there was irrefutable evidence of a breach, namely images of the dog fouling in the garden. The landlord then told the resident on 13 April 2022 that the investigating officer had not personally seen the photographs and had relied on the account of the team involved in the matter. The complaint investigation was carried out without independently assessing the evidence. The way the landlord handled the stage 1 complaint is not considered impartial and therefore is not in line with its own policy.
The landlord’s complaints policy says it will respond to stage 2 complaints within 28 days. The resident escalated the complaint on 9 June 2022 and received the stage 2 response on 8 December 2022. This makes the total time to receive the final response 183 days. This is a significant delay and an inappropriate timeframe for a response. The delay prolonged the period of time the resident was adversely affected by the landlord’s unreasonable decision and furthermore, it significantly hindered the resident’s access to this Service.
The Ombudsman accepts that delays can happen for a number of reasons and expects landlords to remain in regular communication with residents about delays of this kind. The landlord acknowledged the escalation request on 14 June 2022 saying it had a large number of requests and would be unable to begin the investigation. It did not provide the resident with a timeframe by which she could expect a response. The landlord sent a similar holding email on 15 July 2022 and did not update the resident again until 24 November 2022.
This is not demonstrable of the type of proactive communication we would expect to see in the landlord’s handling of complaints and does not comply with its complaints policy. Whilst the landlord acted reasonably in offering compensation for the delayed complaint response, the £100 offered in its stage 2 response was not proportionate to the time and trouble incurred by the resident as a result of the delay in providing its final response.
In an internal email dated 13 December 2022, the landlord said the resident had challenged the stage 2 decision. In this email, the landlord said it should reinstate the permission to avoid the resident going to the Ombudsman, where it was not confident it would “win the argument”. It is not reasonable for the landlord to change its decision solely because of the potential involvement of this Service. The landlord’s complaints investigation process should provide a fair outcome in all circumstances irrespective of whether the resident chooses to access this Service or not.
The Ombudsman encourages landlords to use complaints as a source of intelligence to identify issues and introduce positive changes in service delivery. The landlord’s final response is lacking in any acknowledgement of its delayed handling of the matter and missed the opportunity to identify failings in its complaint investigations. Even where the landlord did identify things it could have done better in its stage 2 response, it decided not to act on this.
The resident told this Service that she was advised by the landlord’s complaints team to bring her case to the Housing Ombudsman. She told this Service this was because the landlord’s complaints team were unable to get the relevant team to act on its instructions. The landlord should note that all actions of all staff are undertaken on behalf of the landlord, not as individuals, and it is important that they are presented to the resident as such. The Ombudsman is not designed to act as a mediator for landlords’ internal staff disputes and it is inappropriate for the landlord to have recommended the resident should escalate her case on this basis.
In conclusion to the complaint handling issue, though the landlord acknowledged the delay in its stage 2 response, the landlord did not reasonably compensate the resident for the delay. The landlord also failed to carry out an impartial investigation until the final stage of its complaints process and did not manage its own internal communication issues which had an adverse effect on the resident. This investigation has found maladministration in this regard and has awarded £250 in compensation.

The landlord’s Knowledge and Information Management (KIM)

An additional service failure finding concerning the landlord’s KIM has been found because, as set out above, the landlord has not provided evidence of its written confirmation or written withdrawal of permission for the dog to access the garden. It also has not provided evidence of notes from the meeting on 1 December 2021 where permission was agreed or from the telephone call on 23 December 2021 where permission was withdrawn. As a result of the lack of records in relation to its withdrawal of permission, the landlord was not in a position to complete an impartial investigation when the resident made a complaint as it had to rely on verbal accounts of the events. The landlord is ordered to pay £50 compensation for this service failure.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s decision to withdraw permission for the resident’s dog to access the communal garden.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the associated complaint.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s knowledge and information management.

Orders

Within 4 weeks, the landlord is ordered to:
1. Provide written confirmation of the permission granted for the resident’s dog to access the communal garden, including the conditions under which this permission has been granted and outlining the process by which permission may be withdrawn in future.
2. Provide a written apology to the resident, addressing the failures identified in this report.
3. Pay the resident £600 inclusive of the £200 it already offered in the stage 2 response, comprising:
  1. £300 for the distress incurred by the resident as a result of its maladministration in its decision to withdraw permission for the resident’s dog to access the communal garden.
  2. £250 for the time and trouble incurred by the resident as a result of its complaint handling failures.
  3. £50 for its failure to keep good records.
The compensation is to be paid direct to the resident and not used to offset any monies that she may owe the landlord.

Recommendations

The landlord should contact the resident about the ASB reports and follow its ASB policy including creating an action plan, if not already in place.

Special Investigation

The Ombudsman completed a special investigation in October 2023 into the landlord using its systemic powers under paragraph 49 of the Scheme. It found the landlord responsible for a series of significant systemic failings impacting residents. The Ombudsman required the landlord to make changes including putting in place formal procedures for proactive managerial oversight of record-keeping designed to ensure records are complete and accurate, and stored in the correct place. Some of the failings identified by this complaint mirror the issues noted by this investigation. As such, and in view of the age of this complaint, this Service does not make any wider order.