Livin Housing Limited (202226600)

REPORT

COMPLAINT 202226600

Livin Housing Limited

23 May 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:
   1. Handling of the resident’s reports of antisocial behaviour (ASB) by a neighbour.
   2. Complaint handling.

Background

2. The resident was an assured tenant in a 1 bedroom bungalow. The tenancy began in March 2021, and ended in July 2023. The resident lives with a mental health condition.
3. On 28 August 2022, the landlord visited the resident to help him complete a housing application. On 1 September 2022 the resident contacted the landlord to report his neighbour was trying to harm his dog. This was the first evidence of a report provided to the Ombudsman. The landlord visited him and he told it that he no longer wanted to move. Following the visit an internal safeguarding referral was raised due to concerns about his mental state and comments the resident made. Within the safeguarding referral, it was stated he had made the landlord aware of a parking dispute with his neighbour. The landlord made referrals to several organisations before being asked to contact the resident’s GP and the police by the duty team at the local authority.
4. The police confirmed to the landlord on 7 September 2022 that they had visited the resident and he confirmed he did not want them to speak with his neighbour. He insisted he would be moving from the property until the landlord moved his neighbour out.
5. The landlord contacted the resident in December 2022 to discuss his ASB case. It said that he initially raised his concerns in the summer but did not want any action taken. It agreed to send out two members of staff to investigate and speak to his neighbour. It tried to explain to him that it needed to investigate as he disputed the previous account by its members of staff. The resident disputed that he had said he did not want something done. He said he did not want the landlord to send any one to speak with his neighbour. The landlord’s notes also state that he changed his mind several times during the conversation about whether he wanted it to investigate.
6. On 31 January 2023 the landlord spoke with the resident and explained that he had queried what stage his complaint was at, but he did not have an open complaint. It said if he had a complaint, he should inform it of his concerns and what he wanted as an outcome. The following day the landlord told him that it had received correspondence from the Ombudsman about his feedback in August 2022. It reiterated it had not received a request to open a complaint, but he had an ongoing ASB case and if he wished to make a complaint it would be happy to investigate it for him. It said it was due to attend his property on 2 February 2023 to discuss the ongoing issue with him and asked him to provide more information to allow it to open a stage 1 complaint.
7. The landlord chased a response to its email to the resident on 3 February 2023. On 13 February 2023 it said that, following its emails in January 2023 and February 2023, it was closing his request for a complaint as it had not received a response. It provided him with email addresses to log his ASB reports, and any formal actions. The following day it issued a warning letter to the resident’s neighbour.
8. The landlord explained internally on 6 March 2023 that it had spoken with the resident, and he wanted to make a formal complaint. It said his complaint was about:
   1. How his ASB complaint was handled when he first made a complaint against his neighbour.
   2. The fact it had logged it as an ASB case and, based on his tenancy agreement, it had not done anything about a breach of tenancy rules.
   3. It was not abiding by the information on its website on how it would deal with ASB.
9. On 22 March 2023, the landlord provided its stage 1 response and said it understood that the resident felt that it had not taken any steps to support him or enforce action against his neighbour. It told him it did not uphold his complaint and said:
   1. Its records showed he had said he did not want to raise a “formal complaint” or for it to speak to his neighbour on 2 occasions in August 2022 and September 2022. He was informed during a meeting at his home that the formal ASB case was opened in December 2022, and he had been satisfied with the response and support provided.
   2. It was satisfied his claims against his neighbour were taken seriously and a warning notice had been issued to them in February 2023.
   3. He had raised issues about untaxed and insured vehicles during a meeting at his home. It had explained it would always encourage him to report ASB, but it held no enforcement powers in relation to untaxed vehicles and could not take any tenancy enforcement action. Its website also explained this and in line with its ASB policy, he was signposted to the appropriate agencies to report the matter to.
   4. It acknowledged that there should be more specific information on its website that signposted residents to the relevant organisation in relation to ASB matters, and as a result it had suggested for the ASB webpage to be reviewed.
10. The resident asked to escalate his complaint on 26 March 2023 and said he had not told the landlord he did not want to open an ASB case, and it was not enforcing its tenancy rules. The landlord called the resident to discuss his escalation further on 29 March 2023. It told him again that it had issued a warning to his neighbour in February 2023. It explained he had 2 complaints, 1 was his “ASB complaint” and the other a stage 1 complaint about its handling of the “ASB complaint”. He said he felt it had not warned his neighbour enough. He told the landlord he wanted to escalate “the complaint” against his neighbour and disputed that he did not want it to open the “ASB complaint” in August/September 2022, as he wanted one opened.
11. The landlord provided its stage 2 response on 13 April 2023. It thanked the resident for meeting it at his home on 3 April 2023 to discuss the complaint and allowing it to investigate on his behalf. It explained:
    1. On 12 December 2022, following his phone call, a formal ASB case was opened against his neighbour. During its visit to his home, he confirmed that since that point, he was happy with the service he received, and he was confident that reasonable steps were taken to support and address the issues he raised with his neighbour.
    2. He however disagreed with the findings of the stage 1 complaint that indicated that between 28 August 2022 and 1 September 2022, he did not wish to log a formal ASB case and requested that the landlord did not speak with his neighbour.
    3. During the visit he explained that on 1 September 2022 he had verbally requested a formal ASB case to be opened following an incident with his neighbour.
    4. It had reviewed the files, which included interviews with housing advisors involved and correspondence from the police. This showed that he did not wish for his neighbour to be spoken to on that specific occasion.
    5. There were conflicting versions of events, so it had been unable to make a definitive conclusion on the overall handling of the matter.
    6. It apologised for the breakdown in communication and hoped that the service he received from it since the formal ASB case was opened in December 2022 continued to meet his expectations.

Assessment and findings

Scope of investigation

12. The resident raised concerns about discrimination by the landlord due to his mental health. The Ombudsman cannot find a landlord has breached the Equality Act 2010, as this would require a legally binding decision. However, it can decide whether a landlord failed to take account of its duties under the Equality Act 2010.

The landlord’s handling of the resident’s reports of antisocial behaviour (ASB) by a neighbour.

13. Once the landlord identified a potential safeguarding risk, it appropriately made an internal safeguarding referral on the same day in September 2022. It took his mental health into consideration, and looked to take a multiagency approach and approached several organisations, who informed it they could not accept the referral. It also approached the resident’s GP and the police and sought regular progress updates during the referral to ensure that he was visited by the police due to concerns for his welfare.
14. Despite its positive actions however, it was unclear whether it obtained the resident’s consent to make the referrals on his behalf. The landlord has not demonstrated that it did, and this was inappropriate. He should have been provided with the opportunity to give his consent for any referral it made on his behalf. This contributed to the refusals by some of the services and led to frustration and distress for the resident as he did not want it to contact the services. It further adds to his concerns about discrimination against him.
15. The landlord also has not demonstrated that it completed a risk assessment at the point or directly after the referral and this was unreasonable. The landlord would have been expected to demonstrate that it assessed the level of risk posed by the resident to either himself or his neighbour in a timely manner. Given the resident had raised ASB reports and the landlord’s concerns for his welfare, a risk assessment should have been completed at this point.
16. The landlord fairly listened to the resident and explained what it needed to do to be able to investigate his concerns during the telephone call in December 2022. Following this It kept in contact with the resident after it logged his ASB case. It investigated his concerns, spoke with his neighbour to discuss the allegations with them, and acted by issuing a tenancy warning letter to them, in line with its ASB policy once it identified relevant concerns.
17. It correctly spoke with both parties to gain a balanced view of the situation and make an objective decision. It completed risk assessments however, the evidence suggests that there was a delay. On 26 January 2023, the records say that a risk assessment had not been completed despite the case being opened in December 2022. It then did not complete the risk assessments until February 2023. This represents a delay of over 5 months and this was inappropriate. It should have completed them at the first possible opportunity, and this should have been an opportunity to review its position. This is especially the case given the concerns it identified which led to the safeguarding referral.
18. Following the initial risk assessment, the resident also told the landlord on 28 February 2023 that he had not acted against his neighbour due to fears of being detained in a mental health hospital. This was another opportunity for it to reevaluate its position by reviewing the current risk assessment to identify if it remained appropriate, or whether it needed to take further supportive action at an earlier time. The failure to do so was unreasonable.
19. The landlord also created an action plan on steps it would take around the issue, when it would complete specific actions, and the action it would be taking against the resident’s neighbour. This allowed it to keep the resident appropriately informed and manage his expectations on how it aimed to address his concerns. Its logs also show that it kept in regular contact with the resident. These were both appropriate actions for the landlord to take.
20. It also supported the resident with completing a housing application in August 2022 and February 2023 and continued to support him around rehousing. When he continued to raise concerns about his neighbour and told the landlord either he or his neighbour needed to move, it obtained the neighbour’s permission, and informed him that they were moving. When the resident said this was not good enough as the neighbour was not moving for about 2 to 3 months, it supported him with finding suitable accommodation, and continued to do so despite him refusing some of the properties. These actions were all positive, proportionate and in line with its ASB policy. Its action of informing him about his neighbour’s move was also an attempt to reassure the resident.
21. The landlord’s ASB procedure says that it will ensure all reports of ASB are recorded. It did not demonstrate that it recorded the resident’s initial reports in August/September 2022. When asked to provided details of the resident’s reports from August/September 2022, it identified that they were recorded in its safeguarding referral. It did not provide any records of the reports on any of its systems and the records provided around its actions also do not show the resident’s reports from August 2022/September 2022. It would have been good practice for it to have logged the report as an ASB case and closed it. It should then have reopened the case when the resident raised his concerns again. It also did not provide copies of the internal notes which suggested that the resident did not want it to speak with his neighbour. This was inappropriate, not in keeping with its policy, and raises concerns with the landlord’s record keeping. The landlord’s poor record keeping has been taken into consideration in the Ombudsman’s overall findings.
22. The landlord explained to the Ombudsman that the resident raised his ASB case in August 2022 and September 2022. It said that it believed after speaking with him following the incidents that he did not want it to speak to his neighbour or open a formal complaint. As such it did not take any action. The landlord has not provided the Ombudsman with any documentation which explicitly identified that the resident advised he did not want it to take action. It would have been good practice for it to identify if he wanted it to log and record his concerns even if he wanted no action taken. This was because if he then raised the same issues, or further issues, this could provide a trail which it could use to inform its decision making on any further actions it may take.
23. The landlord’s ASB policy states that when a report of ASB is received, it will confirm with the resident that it is an “ASB complaint” and not a formal complaint. The landlord has not demonstrated that it confirmed with the resident what his intention was in August/September 2022. It should have considered if it should have follow up any such verbal conversations about the resident’s request in writing. This would have allowed it to confirm that it would not be taking any action, opening an ASB case or raising a formal complaint. This would also have allowed for an audit trail around the issue and kept him informed that it was taking no further action or logging a complaint. This may have also provided an opportunity for the resident to clarify whether there had been a misunderstanding. The failure to do so led to the misaligned understanding of what was discussed and caused the resident frustration.
24. The Ombudsman has not seen any evidence that the resident was treated differently by the landlord. However, the landlord has not demonstrated that it had due regard for the resident’s disability under the Equality Act 2010. It was aware that he had previously had issues around his mental health in the past. This was as early as September 2022, yet there was no evidence that it considered whether he was under a disability under the Equality Act 2010 at that point. It also did not demonstrate that having considered, this, it considered what steps it could have taken as a result.
25. When it did carry out a risk assessment after it raised the ASB case, it missed another opportunity to consider its Equality Act 2010 duties. For example, it could have considered if it needed to change its approach in dealing with the resident and ASB case taking consideration of his mental health. The risk assessment provided it with an opportunity to demonstrate that it had considered whether the resident had a protected characteristic. This was also an opportunity for it to evidence that it had due regard for any potential protected characteristic, and acted appropriately around this, and it has not shown that it did so.
26. In summary, the landlord offered the resident necessary support where appropriate in some instances. It listened to his concerns and took them seriously. It explained what it needed to do investigate, did so where necessary and took the necessary actions to safeguard him and investigate his concerns. It acted in line with its policy in dealing with the ASB reports in some instances. However, there were some failings in its approach to the matter. It failed to demonstrate that it had completed a risk assessment following its safeguarding referral and did not demonstrate that it obtained his consent to make referrals on his behalf. It did not establish whether the resident wanted his reports logged even if he did not want it to act. It did not show that it had logged his reports on its systems in line with its policy. It should have confirmed in writing to the resident that it would be taking no further action after his reports in August/September 2022. It also delayed in completing a risk assessment after logging the case in December 2022 and has not demonstrated it had due regard for its Equality Act 2010 duties. Based on these failings and the resulting cumulative impact on the resident, the Ombudsman finds that there was maladministration.

Complaint handling

27. The landlord’s approach was confusing due to the wording used in its policy and practices around its handling of ASB and its complaint handling. It mentions “ASB complaints” and “Formal complaints”. The landlord could have done more to explain the difference between a complaint and an ASB case to the resident. Using the term “complaint” for both matters can lead to confusion for residents especially where there is no effective explanation in place about the difference. The landlord may want to consider including an explanation around this in its policies or consider referring to ASB cases as something other than “complaints” altogether.
28. The landlord’s complaints policy defines a complaint as any expression of dissatisfaction about the standard of service actions or lack of action by the organisation affecting an individual resident. The resident expressed his dissatisfaction on 12 December 2022 about the handling of his ASB case in August/ September 2022 and the fact it had not taken action. He also said its members of staff were incorrect about his intentions. This was an expression of dissatisfaction and the landlord failed to recognise this. It then failed to investigate the resident’s concerns as a formal complaint until March 2023 when he raised a new complaint about the issue.
29. As the resident had expressed his dissatisfaction in December 2022, and a response was not received until March 2023, there was a delay. This represents a delay of over 2 months in providing the resident with a stage 1 response to his complaint and this was unreasonable. The Ombudsman acknowledges that between 31 January 2023 and 13 February 2023, the landlord tried to contact the resident for information around his complaint. As it could not reach him, this has also been taken into account when considering the delays.
30. The landlord attempted to raise a complaint for the resident in January 2023 following the Ombudsman’s intervention. It tried to speak with him to gain information about what he wished to complain about but could not reach him and closed the complaint. This was unreasonable, as the Ombudsman had informed it as to what the resident’s complaint was about in the service’s letter of 31 January 2023. He had also previously raised the issue with it, as such the landlord could have completed its investigations into the matter and provided a response. The failure to take prompt action to address the complaint saw the resident taking the time to raise the issue again in March 2023.
31. Following the Ombudsman’s involvement, the landlord attempted to raise a formal complaint for the resident. It made attempts to contact him including visiting his property. As it was unable to contact him, it decided to close his complaint. Whilst it is acknowledged that the landlord made appropriate attempts to reach the resident, it failed to show that it took account of the resident’s vulnerabilities in its considerations around why it could not reach him. It had identified safeguarding risk a few months prior in September 2022. It could have shown that it took these into account and took any necessary action to ascertain his whereabouts given its concern for his mental health. The failure to show that it took any action was unreasonable.
32. Within the landlord’s stage 2 response, it identified that the results of its investigation were inconclusive. Whilst it appropriately apologised for the breakdown in communication, it could have gone further to explain how it planned to address the issue going forward. It also failed to recognise that this was a failing as it was unable to appropriately provide the resident with an effective resolution to his complaint. It further did not provide the resident with any form of redress around the issue, and this was inappropriate. As such the Ombudsman has ordered for compensation to be paid to the resident.
33. In summary, the landlord had 2 opportunities to resolve the resident’s complaint before March 2023, and failed to do so. It failed to recognise his expression of dissatisfaction in December 2022, and missed an opportunity to address the issue early between January 2023 and February 2023, but instead closed the complaint. Both issues then contributed to delays in the complaint handling process. It also failed to take appropriate action when it could not reach the resident and had previously identified safeguarding concerns a few months prior. Based on this the Ombudsman finds that there was maladministration.

Determination (decision)

34. In accordance with paragraph 52 of the Housing Ombudsman’s Scheme there was:
    1. Maladministration with the landlord’s handing of the resident’s reports of ASB by a neighbour.
    2. Maladministration with the landlord’s complaint handling.

Orders and recommendations

Orders

35. Within 4 weeks of this report, the landlord must:
    1. Provide the resident with an apology for the failings identified within this report.
    2. Pay the resident compensation of £300 for the failings identified with its handling of the resident’s reports of ASB by his neighbour.
    3. Pay the resident £200 for its complaint handling failings.
    4. Provide proof of compliance with these orders.
36. Within 6 weeks of this report the landlord must ensure it puts systems in place to allow for contemporaneous records of all ASB reports, and the resident’s intentions around them. The landlord must provide the Ombudsman with an explanation of the actions it will take to ascertain a resident’s intentions around their reports, record any reports including those where no action is to be taken, and log them on its systems.

Recommendation

37. The landlord should either include an explanation of the difference between an ASB complaint, and a formal complaint within its ASB policy, or change its reference to “ASB complaint” to something different.