Waltham Forest Council (202322814)

REPORT

COMPLAINT 202322814

Waltham Forest Council

16 December 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:
1. the resident’s reports of antisocial behaviour (ASB), including her request for a copy of an acceptable behaviour agreement (ABA).
2. the resident’s complaint.

Background

The resident was a secure tenant of the landlord, a local authority, between April 2018 and November 2022.
The landlord opened an ASB case on 19 April 2022, after the resident reported that her neighbour was smoking cannabis. In response, the landlord issued the neighbour with a warning letter. The landlord updated the resident of this action and offered to visit her to discuss any further concerns in more detail.
On 14 September 2022, the landlord wrote to the resident and informed her it was closing the ASB case. It explained that her neighbour had been written to and they had been invited to an ABA meeting. The resident was offered mediation and advised to report back to the landlord if she continued to experience any issues. An ABA was later signed by the neighbour on 21 September 2022.
Throughout October 2022, the resident requested a copy of the ABA. She reported that her neighbour was being verbally abusive and had no control over their dog. She later moved out of the property in early November 2022. The resident had no further contact with the landlord until she made a complaint on 3 April 2023. She said that:
1. She had asked for a copy of the ABA on several occasions but had been ignored. A recent incident had taken place “on the street” where her ex-neighbour made threats towards her. She called the police but was informed that they were limited as to what action they could take as they had not seen a copy of the ABA.
2. She thought the ABA would ensure the ongoing safety of herself and her son. Without a copy, she felt she had been placed “at risk”.
The landlord emailed the resident on 19 July 2023 and said following a conversation earlier that day, it had agreed to treat her concerns as a “service request”. It explained it could not share a copy of the ABA for data protection reasons and advised the resident to contact the police about any ongoing concerns. At some point the resident responded to the landlord and disputed that she had agreed the matter was treated as a service request. As a result, the landlord issued the resident with a stage 1 response on 3 August 2023. It said that:
1. It acknowledged that 2 conversations had taken place, and it should have made it clearer whether her concerns were treated as a service request or a complaint.
2. Its staff said they had provided an explanation of what an ABA covered, but they could not recall being explicit about what would happen to the terms of the ABA once she moved.
3. It had taken appropriate action on her reports of ASB, but its communication could have been timelier, and it could have done more to provide a more proactive service.
4. It acknowledged it should have better explained why it could not provide a copy of the ABA. It was willing to provide her with an unsigned template to reflect what was included in the ABA, but not the actual document itself, as it had details related to her ex-neighbour contained within it.
5. It recommended that she contact the police if she continued to feel intimidated by her ex-neighbour, and to seek her own legal advice.
6. As a result of its communication failures, it partially upheld her complaint. It wanted to offer £25 for the distress, and £25 for the inconvenience it had caused.
The resident said she was not happy with the landlord’s response and wanted to “take it further”. The landlord responded to the resident and said that the most efficient way for her to ask for a request for an escalation to her complaint, was to fill in an online form. On 2 October 2023, the landlord issued a stage 2 final response. It said that:
1. It was sorry for the delay in responding to her complaint.
2. It had already acknowledged within its stage 1 response that it should have treated her concerns as a complaint rather than a service request but could see that it had provided no form of remedy for its error.
3. It did not uphold her concerns that she had a lack of support from the landlord. While she was a resident, mediation was offered, and an ABA was put in place. As incidents in 2023 had taken place in a public space, away from local authority grounds, it could not take ownership of investigating her recent concerns.
4. With regards to the ABA, it had already accepted it could have made the terms clearer to her at the time it was issued. It could have also liaised with the police from an information sharing perspective so that they held a copy.
5. It was sorry for the confusion and concern caused and said it should have provided a better level of customer service. It offered £200 in compensation, broken down as:
6. £50 for failing to record her concerns as a complaint at stage 1 of its process.
7. £150 for the distress and inconvenience caused by the lack of clarity around the advice it had provided.
On 10 December 2024, the resident explained to the Ombudsman that she felt led to believe that the ABA was a legal document, and therefore she felt “let down and vulnerable”. As a resolution to her complaint, she requested further compensation reflective of the distress and inconvenience caused.

Assessment and findings

Scope of investigation

Aspects of the resident’s complaint relate to the actions of the landlord when she reported ASB, approximately 5 months after her tenancy ended in November 2022. The Ombudsman cannot investigate this part of the resident’s complaint. This is because at the time, the resident did not have a relationship with the landlord as a tenant. However, we can investigate the landlord’s handling of the associated complaint about ASB, which occurred prior to the resident moving out of the property, and the information that it provided her in relation to the ABA. This is in accordance with paragraph 25 of the Housing Ombudsman Scheme.
It is acknowledged that the situation has been distressing to the resident. It may help to explain that the role of the Ombudsman is to consider complaints about how the landlord responded to reports of ASB. It is not the Ombudsman’s role to decide if the actions of the resident’s neighbour amounted to ASB, but rather, whether the landlord dealt with the resident’s reports appropriately and.
During a conversation with the Ombudsman on 10 December 2024, the resident alleged that the situation caused her considerable anxiety. We do not underestimate the resident’s concerns. However, unlike a court, the Ombudsman cannot establish what caused a health issue, determine liability, or award damages. This would usually be dealt with as a personal injury claim through the courts. Where the Ombudsman identifies failure on a landlord’s part, we can consider the resulting distress and inconvenience.

The resident’s reports of antisocial behaviour (ASB), including her request for a copy of an acceptable behaviour agreement (ABA)

Records show that when the resident made a complaint about her neighbour smoking cannabis on 19 April 2022, the landlord opened an ASB case on the same day which was appropriate. At the same time as opening the case, the landlord should have completed an action plan with the resident. An action plan would have set out what the landlord intended to do with her reports, and at the same time, it could have agreed the regularity of future contact.
However, there is no evidence that the landlord agreed an action plan with the resident in accordance with its ASB procedure. It was not until 22 June 2022, 2 months later, that it offered to visit the resident to discuss her concerns. The delay was unreasonable and contributed to the resident’s feeling that the landlord was not taking her reports seriously.
Evidence shows that the landlord completed a risk assessment matrix (RAM) with the resident on 11 July 2022 and recorded the outcome as “medium”. The RAM prompted the landlord to consider referrals for support, for example, to the police, victim support or other support service. However, there is no evidence that this was offered to the resident. In fact, the landlord made no further contact with her until it wrote to confirm it was closing its ASB investigation on 14 September 2022 which was inappropriate.
Within the same correspondence, the landlord explained to the resident that it had written to her neighbour about the allegations of ASB and had intentions to serve an ABA. The landlord’s ASB policy describes an ABA is an “early intervention tool”, which is accurate. It was appropriate for the landlord to consider an ABA to engage with the neighbour about being more considerate about their future behaviour.
An ABA, or acceptable behaviour contract as it can be otherwise known, is an agreement between an individual and the landlord for a prescribed period of time. It is a voluntary document that is agreed to by both the alleged perpetrator and the landlord which agrees future conduct. This is then signed by both parties. It is not a legal document, but if there is evidence to support a breach of the terms, the landlord could consider more affirmative legal action.
Contrary to the definition of an ABA as explained above, the resident said that the landlord informed her that the ABA was put in place to protect her for an indefinite period, and that a breach of its terms could lead to the immediate arrest of her neighbour. While no evidence was found that the landlord told the resident this, it would have been reasonable for the landlord to have been clearer in its written communication on 14 September 2022. It missed an opportunity to explain to the resident what an ABA was and what its limitations were.
It would not have been appropriate for the landlord to have shared a copy of the ABA with the resident. This is because as explained in paragraph 16, an ABA is a voluntary document that would have been exclusive between the landlord and the neighbour. However, the landlord could have generalised the terms to aid the resident’s understanding of its purpose and to assure her that it was taking steps to monitor the behaviour of her neighbour.
Another form of early intervention is mediation. Mediation should be offered to residents at the earliest opportunity to establish a mutual understanding of each other’s lifestyles. In this case, the landlord offered the resident mediation which was appropriate. Records show that on 5 October 2022 the resident informed the landlord that she was willing to engage in shuttle mediation, however there is no evidence that the landlord responded to her. It took no further steps to start the mediation process which was unreasonable.
It would have been reasonable for the landlord to have kept the ASB case open for a period of time for monitoring after the ABA was served, so that it could monitor the situation to see if its interventions had made an improvement. However, it failed to do so and immediately closed the case which was inappropriate and contrary to its ASB procedure which states that closure should be agreed with the reporting resident. The landlord’s records show that the resident continued to report incidences of ASB involving her neighbour and their dog on several occasions throughout October 2022. However, it did not respond to her concerns before she moved out in November 2022, which was unreasonable.
The resident made no further contact with the landlord until she made her complaint in April 2023. In responding to the resident’s complaint at stage 1, the landlord acknowledged that it could have better communicated the conditions and length of term of the ABA at an earlier stage. To put matters right, it offered to send her an unsigned copy of an ABA template which was a fair compromise where it was not at liberty to share the signed document. It also referred her to the police to report any new incidents which was reasonable, as the police were the best placed agency to deal with her more recent concerns.
The landlord apologised for its failure in service and offered her £50 in compensation for the distress and inconvenience it had caused. The amount fell short of the parameters for distress in accordance with its compensation policy, and did not consider there were wider failures to complete an action plan, signpost her to support and monitor the ABA for a period of time before closing the ASB case.
When the landlord had an opportunity to review its response again at stage 2 of its process, it offered to increase the amount of compensation it had offered her to £150. While it was appropriate that the landlord revisited the amount it had offered, it again failed to recognise that it could have done more before closing the ASB case in October 2022 and did not take adequate learning from the resident’s experience to improve its future service. As a result, the compensation did not reflect the full detriment caused to the resident. The Ombudsman has ordered a further £150 to be paid to the resident to reflect the additional distress that was caused because of its failures. The additional amount ordered remains within the scope of the landlord’s compensation policy for payments related to distress.
In summary, the landlord recognised that it failed to better communicate the purpose of the ABA, and its decision not to share a copy of it with the resident was appropriate. However, there was maladministration in the landlord’s handling of the resident’s reports of antisocial behaviour (ASB). Its complaint responses failed to recognise that it could have taken a more robust approach to support the resident prior to moving, through use of an action plan or a referral to specialist support. It also failed to acknowledge that it should have kept the ASB case open for a period of time after the ABA was issued.

The landlord’s response to the resident’s complaint.

At the time of the complaint, the landlord had a 2-stage complaints policy which said it aimed to provide a response to a complaint at stage 1 within 20 working days. Where the resident was dissatisfied with the outcome at stage 1 and requested escalation of the complaint to stage 2, the landlord aimed to respond within 25 working days. The timescales given were inconsistent with the Housing Ombudsman’s Complaint Handling Code (the Code).
It is noted that the landlord’s complaint policy at the time of the complaint was dated February 2023, and stated that the landlord recognised that its timescale for a response to complaints was inconsistent with the Code. It contained comments that it had taken the decision not to revise the timescale to avoid inconsistency for complaints that did not fall within the jurisdiction of the Ombudsman. It is important to recognise that since then, on 1 April 2024, the Ombudsman issued the new statutory code. This sets out the standards landlords must meet when handling complaints in both policy and practice. The landlord has since updated its timeframe for a response accordingly which is appropriate.
The Code makes it clear that landlords should recognise the difference between a service request and a complaint. A complaint should be raised when the resident raises dissatisfaction with the response to their initial request. In this case, the landlord accepted it did not seek to clarify how it would to treat the resident’s concerns.
As a result, there was a prolonged delay in issuing the resident with a formal stage 1 complaint response. The landlord acknowledged its failure and made an appropriate apology but failed to consider a financial remedy for the time and trouble caused. This was a missed opportunity to put things right for the resident.
The Code makes it clear that landlords should make it easy for residents to complain by providing different channels, with more than one route of access into the complaints system. In this case, when the resident requested an escalation to her complaint on 11 August 2023, the landlord responded promptly, but directed her to an online form to complete to register her concerns.
While the online form is referred to as the landlord’s preferred route for residents to make complaints within its policy, it should have made clear there were also several alternative methods of contact available to the resident. Had the landlord accepted her concerns on the day it acknowledged her request on 11 August 2023, it could have responded to her within a shorter timeframe. By referring the resident to report her request via the online form, a final stage 2 response did not follow for a further 36 working days, 11 days later than the timescale expected within its complaint policy in place at the time.
In determining whether there has been service failure or maladministration we consider both the events that initially prompted a complaint and the landlord’s response to those events. The extent to which a landlord has recognised any shortcomings and the appropriateness of any steps taken to offer redress are as relevant as the original mistake or service failure.
While the additional delay of 11 days in responding to the resident at stage 2 of its complaint process did not have a considerable impact on the resident, it still prolonged the process unnecessarily. The landlord made an apology for this which was appropriate. It also revised its financial offer to consider the time and trouble the resident experienced at stage 1 of its process, which was reasonable.
The £50 it offered in recognition of the time and trouble caused to the resident was reasonable and made in accordance with the Ombudsman’s remedies guidance for service failure. As a result, the Ombudsman has made a finding of reasonable redress.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s response to the resident’s reports of antisocial behaviour (ASB), including her request for a copy of an acceptable behaviour agreement (ABA).
In accordance with paragraph 53.b. of the Housing Ombudsman Scheme, the landlord has offered redress prior to investigation which, in the Ombudsman’s opinion resolves the complaint about the landlord’s handling of the resident’s complaint satisfactorily, resulting in a finding of reasonable redress.

Orders and recommendations

Orders

Within 6 weeks (allowing for the Christmas period) the landlord is ordered to:
1. Apologise to the resident for the failures noted within this report.
2. Pay the resident £300 in compensation. The amount is to be paid directly to the resident and not offset against any arrears. The amount is made up of:
  1. £150 the landlord offered the resident at stage 2 of its complaint process on 2 October 2023 for the distress and inconvenience caused, if it has not already been paid.
  2. An additional £150 to reflect the distress caused to the resident by the landlord’s failure to complete an action plan, refer the resident to additional support and for closing the ASB case without prior discussion.
Within 8 weeks, and in accordance with paragraph 54.g. of the Housing Ombudsman Scheme, the landlord is ordered to carry out a management review of case to identify what went wrong and what it should have done differently. This should be presented to the Ombudsman within 10 weeks. The review should include, but is not limited to:
1. a review of the resident’s ASB journey, including the landlord’s failure to conduct an action plan, refer her to support or discuss her case with her before closing it.
2. an explanation of how the landlord will use the outcome of a RAM to ensure that residents are adequately supported.
3. an explanation of how it will maintain management oversight of ASB cases marked for closure.

Recommendations

It is recommended that the landlord pay the £50 it offered the resident at stage 2 of its complaint process on 2 October 2023 for the delay in responding to the resident’s complaint, if it has not already paid.
It is recommended that the landlord review its process for responding to requests to escalate complaints, to ensure that no residents are disadvantaged by being signposted solely to its online form.