Red Kite Community Housing Limited (202109781)

REPORT

COMPLAINT 202109781

Red Kite Community Housing Limited

17 January 2022

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 issuing the resident with a final antisocial behaviour warning.

Background and summary of events

The resident’s tenancy for the property began in July 2006.
On 21 September 2020, the landlord issued an ASB Awareness Notice to the resident for allegations of smoking Cannabis at the property, allegations of breaching Covid rulings, alleged aggressive and threatening behaviour, and complaints that the resident’s dog was constantly barking.
On 10 October 2020 the landlord issued an ASB warning to the resident. The reported behaviour included “conduct causing or likely to cause harassment, alarm or distress” and shouting and swearing at a member of the landlord’s staff during a phone call (in which they were trying to explain the nature of the allegation that had been made against the resident). The warning stated “The above reports are a breach of the terms and conditions of your Tenancy Agreement under Grounds 12 & 14 of Schedule 2 of the Housing Act 1988” And further stated “You are hereby warned that in the event of any re-occurrences of a similar nature or any other breach of your tenancy terms and conditions, these incident(s) and/or the issue of this warning will be used in evidence in respect of any investigations or decisions made in respect of you and/or your tenancy or legal proceedings, which may be brought against you”.
On 18 June 2021 the resident used the landlord’s webchat facility as he had been waiting some time to receive a phone call about bathroom repair issues. During the chat he used offensive language and was asked by the webchat advisor to refrain from doing so. He explained that “Right about now I’m recovering from a heart attack so if I choose to swear right about now to relieve stress then I will.” The advisor explained that they understood his frustration, but if he swore again they would have to end the chat. He did not swear again but explained that he had been unsuccessfully chasing for a resolution to the repairs for some time and that there had been “no communication, I had lost earnings, countless stress which attributed to my heart attack.” The advisor arranged for a manager to call the resident later, and the resident ended the chat explaining that “I will not care who I upset or how I say what I have to say with whatever words I choose.”
On 22 June 2021 the resident made a post on the landlord’s community social media page. The post contained offensive language directed at the landlord and its staff. The post was deleted by the landlord.
On 25 June 2021 the landlord issued a final warning letter to the resident via email. The warning stated: “Despite our previous warnings, most recently in a letter to you dated 8th October 2020, you have continued to breach the terms and conditions of your tenancy agreement. You are receiving this final warning letter because:
1. On 18th June 2021, you used foul language during a webchat with a member of the landlord’s staff.
2. On 22nd June 2021, it was noted that you wrote a post on the [the landlord’s] Housing [social media] page which was abusive and contained foul language. Please note that this post was subsequently deleted due to its offensive nature, in line with our social media policy. If similar posts are made in future, these too will be deleted.”
The warning also stated, “Should any further complaints be received it will be our intention to seek an injunction and/or possession proceedings against you”.
The resident called the landlord the same day to discuss the final warning. The landlord’s records state that that the call had to be terminated as the resident ignored the landlord’s request to stop shouting and swearing.
Later that day the resident emailed a complaint to the landlord as he did not agree with it issuing the ASB final warning.
He sent two more emails that day with further information about the complaint, and another email on 28 June 2021. The information within the emails included a range of points, including that the resident felt his language had been appropriate in the context it was used (to express his own frustration), was not directed at any one person, and therefore was not offensive. He also explained that the reason he was frustrated to the point of using that language was because of the ongoing issues regarding the bathroom repair. He accused the landlord of slander and libel, and explained that he had “spoken to a legal representative who advised me that the only people that can find me guilty of committing an offence is the British judicial system and with a fair trial in a British court. I have had none of this in regards to allegations so how am i guilty of committing a crime.” One email on the 25 June 2021 also contained a complaint about the member of the ASB team that he had spoken to on the 25 June 2021. We do not have a copy of this email, but it is referred to by the landlord in its stage one complaint response to the resident.
The landlord’s records show that on the morning of July 2 2021 two members of the landlord’s antisocial behaviour team visited the resident. The visit was not prearranged, but the officers were in the local area at the time. They intended to discuss an Acceptable Behaviour Contract (ABC) with him (an ABC is a voluntary written agreement between a landlord and a tenant perceived to be engaging in anti-social behaviour. It outlines what behaviour is unacceptable, and the tenant agrees to avoid engaging in such behaviour). The resident spoke to the officers outside his home. The landlord’s records note that the conversation ended due to the resident shouting and swearing at the officers.
Shortly after the visit the resident emailed the landlord to complain about it. He did not think it was reasonable for the landlord’s staff to turn up at his home unannounced, particularly as he had complained to the landlord about one of them. The resident stated that he did not feel he was being treated fairly or allowed to express his frustration.
The resident sent two further emails that day with additional information and also to advise the landlord that he had recorded the conversation outside his home on 2 July 2021 and would provide the video.
On 14 July 2021 the landlord sent its complaint response. It addressed in detail each of the concerns the resident had raised:
1. The landlord’s decision to issue an ASB final warning letter on 25 June 2021 and its related communications
2. The standard of call handling provided by [staff member] during a telephone conversation on 25 June 2021
3. The landlord’s decision to remove [the resident’s] comments from its social media page.
4. The validity of the ASB warning letter
5. An unannounced visit from the landlord’s ASB team on 2 July 2021
6. The behaviour of the member of the ASB team that the resident spoke to on 25 June 2021.
The landlord acknowledged that the resident had been frustrated about ongoing repair issues but that “From time to time, a tenant may feel justifiably angry about an issue, however it is not acceptable when anger escalates into aggression. Aggression in this context also includes the use of abusive, foul/offensive language or derogatory and inflammatory remarks.” It said that the reason it sent a final warning was due to the fact the resident had previously received warnings for antisocial behaviour on 21 September 2020 and 10 October 2020, for issues that included aggressive and threatening behaviour. It referred him to the relevant section of his tenancy agreement which required him not to cause nuisance or annoyance to staff members (amongst others).
The landlord explained that contrary to what the resident had claimed about using the language in context rather than directed at anybody, the abuse within the social media post had been directed at the landlord’s staff. It said that the problem was not the resident making negative comments, rather, it was the fact that the resident was using offensive language. The landlord highlighted another post by the resident which had also made a negative comment about the landlord, without offensive language, which had not been deleted. The landlord acknowledged that it should have contacted the resident to explain why his post was deleted and advised that in future it would do so.
The landlord gave further examples of occasions when the resident had been aggressive and used offensive language. It explained that while the resident may consider his actions and language appropriate or acceptable in the circumstances, the landlord did not, and that “any form of foul/abusive language or aggressive behaviour will not be tolerated… though I appreciate that this may be a method that you use to express your concerns, we respectfully request that you refrain from using such language in your communication with us.”
The landlord addressed the resident’s references to criminal allegations, explaining that “an ASB warning letter issued by your landlord is not a notice under criminal proceedings”. It also explained that the ASB warning letters are an opportunity for the landlord to warn residents that their behaviour is unacceptable and must improve.
The landlord addressed the resident’s concerns about a member of staff he spoke to on 25 June 2021. In response to the resident’s claims that the employee was “rude”, patronising” and implied that the resident had no freedom of speech whilst he was a tenant of the landlord, it advised that the employee’s notes of the call stated that “I tried to explain that [the resident] can express opinions but he must not do so using foul and abusive language, but he continually interrupted me and I cannot be sure whether he heard or understood the point I was trying to make about this”. The landlord stated that the ASB warning letter had been issued to the resident for offensive and abusive language in the webchat and on social media, and that he had exhibited the same behaviour during his call with the employee on 25 June 2021.
The landlord explained that it was satisfied the unannounced visit on 2 July 2021 was arranged with “good intentions” as the officers were in the area that day and had asked the resident if he would talk with them, which he had agreed to do. The landlord noted that although the members of staff had given the resident the chance to speak without interruption, when one of the officers mentioned a potential breach of his tenancy “[the resident] became agitated by this and repeatedly interrupted [the officer] by swearing and shouting abuse …. Though not directly at them, it was noted that [the resident] continued to use swear words by using sentences such as “I haven’t called anyone a c*nt have I?” and that the conversation had to be terminated because of this behaviour.
The landlord concluded by explaining how the resident could escalate his complaint if he remained dissatisfied.
On 14 July 2021 the resident emailed the landlord asking to escalate his complaint. This was followed by additional emails on 15 July adding further information and including the video of the conversation with the two officers who had visited him. The resident complained that the response had been sent by the feedback team rather than the manager he had been told would be dealing with his complaint, and that:
1. The landlord should have contacted the resident before issuing the ASB warning as per its ASB policy.
2. There was nothing in the tenancy agreement about social media policy and the resident had not agreed to anything.
3. He disputed the landlord’s views of his behaviour and language
4. The allegation that the resident shouted and swore at the two staff members who visited his home on July 2 2021 was untrue.
5. The unannounced visit on July 2 was a breach of the resident’s tenancy agreement, and the landlord had not taken into account that the resident had recently suffered a heart attack and was stressed because of the delays and problems with the bathroom repairs.
6. “I have clearly stated before i suffer with stress and also depression and was told by a psychiatrist that its ok to express my anger and if someone or company stresses me then i am allowed to say.”
The landlord issued its stage two response on 23 July 2021. It explained that the staff member who had investigated the resident’s complaint was also a manager, and not part of the feedback team but that the feedback team sends out all responses to formal complaints on behalf of the investigating manager. The landlord also addressed each of the points that the resident had raised, explaining that:
1. The ASB policy referred to by the resident refers to the landlord making contact with the person making the ASB complaint, not with the alleged perpetrator. The policy also confirms that the landlord “may use verbal or written warnings with the intention to stop ASB before it escalates”. It said its ASB procedure was followed correctly.
2. The landlord’s social media policy refers to the way it manages and monitors comments on its social media pages, and where a person is using offensive language in a post the policy is to remove the post. The removal of the resident’s comment was in line with that policy. However the landlord acknowledged it should also have contacted the resident to explain why the comment was removed.
3. “the constant use of foul and offensive language towards [the landlord’s] employees is deemed to be a nuisance, specifically after numerous warnings have already been issued to rectify behaviour. Despite no criminal offence being committed, the choice of words does constitute a nuisance or annoyance under the terms of the tenancy and therefore [the landlord] is legitimately able to serve an ASB warning letter.”
4. The video the resident provided showed that although the conversation was productive for the majority of the time, the conversation ended because the resident shouted and swore at the two members of staff.
5. Having reviewed the tenancy agreement, and the circumstances of the officers being in the resident’s local area on 2 July 2021, the visit was well intentioned, but would have been better managed through a formal appointment. As the officers did not ask to access the property and gave the resident the opportunity to decline the visit, they did not breach the tenancy agreement.
The landlord identified two learning points from the complaint. First, to ensure that the communications team should contact people to explain why their social media post has been removed, and secondly, to consider the most appropriate appointment type for tenants based on the circumstances and desired outcome. The landlord concluded by explaining how the resident could escalate his complaint to a tenants panel, or to this Service, if he remained dissatisfied.

Assessment and findings

It is not for the Ombudsman to establish if ASB or unreasonable behaviour has occurred. Rather, the Ombudsman’s role is to determine whether the landlord’s response was fair and reasonable and whether it responded appropriately and acted in line with its policies and procedures.
The resident had received two ASB awareness letters and one ASB warning before he received the final warning on 25 June 2021. There was a gap of approximately 8 months between the final warning and the previous warning and the landlord’s records show no reports of ASB during that time period.
At the time of the webchat and social media incidents the resident had been frustrated with the landlord’s lack of response to his complaint about a bathroom repair the landlord had undertaken. He was also recovering from a heart attack. The resident felt that neither of these factors were taken into account when the landlord issued its ASB final warning. He also felt that his recent heart attack should have been taken into account when the landlord’s staff made the decision to make an unannounced visit to his home.
In its stage one response the landlord looked at each of the issues the resident had raised and sent a detailed response, addressing each issue. This included the fact that the resident had been frustrated with the issues with the bathroom repairs at the time. It explained that a tenant may feel “justifiably angry about an issue, however it is not acceptable when anger escalates into aggression. Aggression in this context also includes the use of abusive, foul/offensive language or derogatory and inflammatory remarks.”.
It also noted as a learning outcome that in future it would contact residents promptly to explain why a post had been removed on its social media page.
The resident escalated his complaint to stage two. He made additional points and expanded on previous points. In its stage two response the landlord addressed in detail each of the points raised. It stated that it agreed with the learning outcome of the stage one complaint regarding notifying residents promptly to explain why their social media posts had been removed.
It looked again at the resident’s concerns about the unarranged home visit and concluded that the “well-intentioned impromptu visit would have been better managed had it been scheduled through a formal appointment.” It also noted that in future it would consider “the most appropriate appointment type for the tenant concerned based on the circumstances and the outcome trying to be achieved.” Both responses were thorough and detailed. The landlord did not specifically mention the resident’s health circumstances, but its learning point was to make more appropriate appointments in light of a tenant’s circumstances in the future. That would presumably include such matters as health and wellbeing, so the steps taken by the landlord would likely reduce the chance of a similar issue arising again.
The responses at stage one and stage two were reasonable and appropriate as they addressed the points the resident had made, and the stage two response took into account the additional detail he had provided in his escalated complaint. The landlord included references to the relevant policies and the tenancy agreement in order to explain its position. Where the landlord concluded that improvements could be made in future these were recorded as learning outcomes.
It may have been helpful to the resident if the landlord had also included references to its unacceptable behaviour policy, which can be found on its website, as that policy addresses the issue of using offensive language and the difference between anger and aggression, which were clearly factors in this complaint.
Under the section dealing with abusive or aggressive behaviour, the unacceptable behaviour policy states “A tenant may feel justifiably angry about an issue. However, it is not acceptable when anger escalates into aggression towards our employees. Aggression is not restricted to acts that may result in physical harm and may also include behaviour or language (whether oral or written) or gestures which may cause employees to feel afraid, threatened or abused.”
One of the examples of abusive or aggressive behaviour it lists is “using hostile, abusive or foul/offensive language through any channel of communication”. It further states “When this type of unacceptable behaviour is demonstrated, action may also be taken in line with our Staff Protection Policy and Anti-social Behaviour policy.”
The resident’s behaviour during the webchat and on social media can reasonably be said to be “using hostile, abusive or foul/offensive language through any channel of communication.” And as such it was reasonable for the landlord to take action via its ASB policy. As there had been previous incidents of ASB, including similar behaviour during a telephone call to a member of the landlord’s staff on 10 October 2020, the landlord acted reasonably when it issued an ASB final warning to the resident.
The resident was understandably aggrieved by what he saw as a lack of appreciation of his health circumstances and his ongoing frustration with the bathroom repairs. However, nothing in the landlord’s ASB policy or unacceptable behaviour policy requires the landlord to allow behaviour such as that demonstrated by the resident in any circumstances, regardless of the mitigation claimed. That would include the advice the resident told the landlord he had received from his psychiatrist about expressing his anger. Tenants are fully entitled to express anger or frustration, but, in line with their tenancy agreement and the landlord’s policies, the landlord is not obliged to tolerate offensive language or aggressive behaviour when they do so, even if the tenant were to explain that that is how they express themselves.
Furthermore, while the resident clearly felt his behaviour was not offensive, his view on the issue is not the primary one for consideration. The question is whether the people subjected to the behaviour could reasonably consider it offensive or unreasonable. In that context, the decision reached by the landlord, and its subsequent warnings, was reasonable.
The resident was clearly frustrated by the issues he was having with the landlord with regards to repair work in his bathroom, however the landlord acted reasonably and in line with its policies and procedures when it issued an ASB warning to the resident.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in respect of the complaint

Reasons

The landlord responded reasonably and in line with its ASB policy when it issued an ASB final warning to the resident.