Waltham Forest Council (202331573)

REPORT

COMPLAINT 202331573

Waltham Forest Council

27 June 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:
1. The landlord’s response to the resident’s report that a caretaker contacted him about rubbish in the communal area.
2. The landlord’s response to the resident’s report that the landlord was obstructive and refused to accept his complaint by phone.
3. The landlord’s response to the resident’s reports that a neighbour was smoking illegal substances.
4. The resident’s reports about a general lack of accessibility in the landlord’s services because he is requested to use online services.
5. The landlord’s handling of the associated complaints.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 42(l) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
1. The resident’s reports about a general lack of accessibility in the landlord’s services because he is requested to use online services.
Paragraph 42(l) of the Scheme states: “The Ombudsman may not consider complaints which, in the Ombudsman’s opinion… seek to raise again matters which the Housing Ombudsman, or any other Ombudsman has already decided upon”.
The Local Government and Social Care Ombudsman (LGSCO) determined case 22 014 418 on 17 September 2023, which included an assessment of the council’s request for the resident to submit complaints through its online portal.

Background

The resident is a tenant of the landlord which is a local authority. The property is a one-bedroomed flat within a block containing 6 flats. The resident has vulnerabilities resulting from being autistic; this means that he requires communications to be ‘autism-friendly’. The resident has explained that this means no complex written communications and he has requested the landlord and this Service to ring him before sending any written communication.
The landlord’s tenancy conditions state:
1. “Household rubbish must be placed in a dustbin, refuse chute and any other area designated by the Council”.
2. “You must keep all shared areas, including all entrances, stairways, corridors and landings free from obstructions. You must not leave any personal belongings or rubbish in any shared areas…”

Summary of events

The landlord wrote to the resident on 2 August 2022 in response to his allegations about discrimination, the council’s provision of services, contact with council officers and his request for reasonable adjustments. The landlord explained that it did not agree to make the reasonable adjustments requested by the resident due to resourcing implications. The landlord set out the methods of contact it requested the resident to use when contacting the council. It stated that the resident should use its online form when making formal complaints.
The landlord wrote to the resident on 25 October 2022 in response to his request for the landlord to ring him prior to sending any written correspondence. The landlord explained that it had considered his request and concluded that it was not a reasonable adjustment it was required to make to enable him to access the council’s services. It added that the council did not have sufficient resources to meet the demands of contacting the resident prior to him receiving correspondence from the various council departments. The landlord confirmed that it would continue to provide information that was clear, concise and used bullet points. It would also send correspondence by post rather than by email and where officers needed to contact the resident quickly, they would try to ring him.
The resident wrote to the landlord on 2 November 2023 regarding his neighbour who the resident said was storing items in the fire escape. The landlord phoned the resident on 3 November 2023 to discuss the allegations. The landlord also spoke to the neighbour.
On 7 December 2023, the resident wrote to this Service and other agencies to report the following:
1. The resident stated that the council had refused to provide an accessible service when he had phoned its contact centre. He stated that the contact centre had refused several times that day to accept his complaint over the phone and he attached a phone recording to support his statement.
2. The resident stated that on the last occasion he had phoned on 7 December 2023, the agent had agreed to take the complaint over the phone by filling out the online form for him. He stated that this would still trigger anxiety as the questions were irrelevant or unanswerable by him.
3. He said that his housing officer had sent a caretaker to “accuse” him of leaving rubbish outside his property. He stated that the housing officer should have spoken to him directly and his failure to do so had caused the resident anxiety.
4. The resident stated that he wished to complain about a member of the contact centre who had refused to “give a yes or no response” when asked whether he would take his complaint over the phone.
5. The resident said he wanted to complain about the council in general for refusing to provide an accessible service.
6. He stated that his neighbour was smoking illegal substances, which was causing a nuisance and causing him distress.
On 16 February 2024, the Ombudsman sent the landlord a copy of the resident’s complaint dated 7 December 2023 as the landlord had not been included as an addressee in the resident’s email.
On 1 March 2024, the landlord sent its stage one reply in which it stated the following:
1. The landlord apologised for not responding earlier to the resident’s complaint dated 7 December 2023.
2. The landlord had spoken to its Tenancy Officer about the resident’s report that the Tenancy Officer had instructed the caretaker to speak to the resident about leaving his bins in the communal area. The Tenancy Officer had denied this and confirmed that he had only spoken to the caretaker to alert him of the need to remove waste from the communal area.
3. The landlord stated that it had not previously been made aware of the resident’s report that a neighbour was smoking illegal substances. The landlord confirmed it had now recorded this and would investigate the resident’s reports in line with its Anti-Social Behaviour (ASB) policy.
4. The landlord confirmed its commitment towards making its services accessible to all residents, including those who are digitally excluded and those with disabilities and vulnerabilities.
5. The landlord confirmed it had listened to the call recordings referred to by the resident and apologised for its agents’ handling of the calls. It confirmed that the resident had been incorrectly advised that the only way he could raise a complaint was online.
6. The landlord clarified that wherever possible it encouraged residents to log their complaints online. It said the reasons for this were because it ensured the landlord was receiving a first-hand version of the complaint directly from the resident and the complaint could quickly be assigned to the correct team.
7. The landlord accepted that the agent should have logged the complaint on the resident’s behalf as its staff are expected to log complaints received through a variety of channels including by phone.
8. The landlord referred to a letter it had sent to the resident on 2 August 2022 in which it had outlined its commitment to the resident and outlined the channels he could use to raise his concerns.
9. The landlord confirmed it had reminded its contact centre staff about the importance of a flexible and pragmatic approach when taking complaints and of the need to recognise there are residents who cannot raise complaints online.
10. The landlord accepted there was evidence of some service failings, apologised and partially upheld the resident’s complaint.
On 1 and 8 March 2024, the landlord wrote to the resident’s neighbour about alleged ASB.
The landlord’s records state that it received the resident’s stage 2 complaint on 21 March 2024 in which he expressed his dissatisfaction with the landlord’s stage one reply because:
1. He stated that the stage one reply did not address why the landlord was treating him differently by logging complaints by phone for other residents but not him.
2. The resident stated that he had spoken to the landlord 15 times on 7 December 2023 to make his complaint.
3. The resident stated that a caretaker had knocked on his door and advised him that he had been asked to speak to the resident about rubbish in the communal area.
4. The resident corrected the address of the neighbour who he alleged was smoking illegal substances. The resident said he had spoken to the housing officer about this on various occasions and therefore the housing officer was aware of the issue but had not taken any action since January 2023.
5. The resident said he had not been contacted by phone to discuss his complaint, despite this being his preferred method of contact and his requested reasonable adjustment.
6. The resident requested the landlord to confirm there was no information on his account restricting or prohibiting phone contact as he said this was a breach of its public equality duty towards him.
On 16 April 2024, the landlord sent its stage 2 reply in which it stated the following:
1. The landlord confirmed it would not be able to investigate events dating back longer than 12 months.
2. The landlord said it did not consider it was at fault for publicising a preferred method of receiving contact such as complaints and it explained the reasons for this.
3. The landlord said its position regarding the resident’s request for reasonable adjustments remained unchanged from the letter it had sent to him on 25 October 2022.
4. The landlord confirmed it had instructed its staff on 26 October 2022 to send letters to the resident by post rather than email and therefore it had endeavoured to accommodate the resident’s communication preference.
5. The landlord again apologised that the resident’s experience with its contact centre had not met his expectations as he had terminated various calls to the contact centre.
6. The landlord had written to its contact centre staff on 28 July 2023 and reminded them not accept complaints by phone from the resident as a result of his conduct, which resulted in the arrangements introduced in 2022.
7. The landlord stated: “The Council has not and will not make decisions about how it will correspond with you based on any issues relating to equality or disability”.
8. The landlord had looked into why it had written twice to the wrong neighbour about smoking illegal substances. The landlord said it had spoken to the relevant officers and they had asserted that they had taken the action based on allegations made by the resident about the neighbour. The landlord added that the resident had stated the address of the neighbour in his stage one complaint and the landlord had written to the resident on 28 February 2024 summarising the complaint, including the address of the neighbour. The landlord apologised for any confusion.
9. The landlord confirmed it does not offer a service for collecting hazardous waste from communal areas on a frequent basis. It had spoken to the officer and he had denied instructing the caretaker to approach the resident about the waste material. The landlord therefore did not have sufficient evidence to conclude why the caretaker had contacted the resident.
10. The landlord concluded that it was not treating the resident differently on the grounds of disability or discriminating against him on equality grounds.
11. The landlord did not uphold the resident’s complaint.
The landlord wrote to this Service on 30 April 2024 to confirm it had sent an instruction that day to its contact centre staff and its social care front door teams that they must accept complaints from the resident over the phone.
The landlord also confirmed to this Service on 20 May and 17 June 2024 that there were no contact restrictions in place in relation to the resident and that its staff were taking complaints from him over the phone. The landlord also confirmed that it does not have an agreement in place that it will ring the resident before sending him letters.
The landlord advised this Service on 20 June 2024 that the stage 2 investigator had called the resident twice prior to issuing the stage 2 reply and there had been no response nor facility to leave a voice message.

Assessment and findings

Scope of the investigation

Having reviewed the evidence available, the Ombudsman has concluded that it is fair and reasonable to focus its investigation on the period from 7 December 2023, when the resident wrote to this Service, to 16 April 2024 when the landlord sent its stage 2 reply. References to events outside of this period have, however, been included for context.

The landlord’s response to the resident’s report that a caretaker contacted him about rubbish in the communal area

The resident stated in his email dated 7 December 2023 that his housing officer (referred to by the landlord as the Tenancy Officer) had sent a caretaker to speak to him about leaving rubbish in the communal area outside his property. The resident was unhappy that the housing officer had not spoken to him directly about the issue.
The landlord addressed this in its stage one reply dated 1 March 2024. It confirmed that it had spoken to the Tenancy Officer, who had denied instructing the caretaker to speak to the resident about leaving rubbish in the communal area. The officer said he had simply requested the caretaker to remove any rubbish from the communal area.
Based on the evidence seen, there are differing accounts of the events in question. The resident reported that the caretaker had said he had been instructed by the Tenancy Officer to speak to the resident about leaving rubbish outside his property. However, the Tenancy Officer denied instructing the caretaker to do this. Although the Ombudsman does not doubt the resident’s statement, this Service has not seen any evidence to support whether the Tenancy Officer had instructed the caretaker to speak to the resident.
In conducting its investigations, the Ombudsman relies on contemporaneous documentary evidence to ascertain what events took place and reach conclusions on whether the landlord’s actions were reasonable in all the circumstances of the case. In this instance, there is no written record of the Tenancy Officer instructing the caretaker to speak to the resident. Our role is to consider all the circumstances of a case and determine what was reasonable in the circumstances. As there are conflicting accounts of the events and there is insufficient supporting evidence, it would not be possible for the Ombudsman, as an independent arbiter, to establish whether the Tenancy Officer had instructed the caretaker to speak to the resident about leaving rubbish outside his property. However, the Ombudsman has concluded the following:
1. The Ombudsman has not seen any evidence disputing that there was rubbish in the communal area and the tenancy conditions prohibit residents from leaving rubbish in communal areas. Therefore, although this Service has not seen evidence confirming the exact content of the conversation between the caretaker and the resident, the landlord’s staff were entitled to make enquiries by speaking to the resident about items left in the communal areas.
2. The landlord investigated the resident’s complaint by speaking to the Tenancy Officer. This was a reasonable and proportionate response in the circumstances. However, this Service has not seen any evidence that the landlord also spoke to the caretaker in question to check the instructions he had been given by the Tenancy Officer. This would also have been useful to establish the facts as part of the landlord’s investigations. This was therefore a shortcoming on the landlord’s part.
Despite the landlord’s shortcoming of not speaking to the caretaker, overall, the Ombudsman has concluded that the landlord carried out a reasonable investigation into the resident’s complaint and its staff were entitled to speak to the resident regarding rubbish in the communal area.

The landlord’s response to the resident’s report that the landlord was obstructive and refused to accept his complaint by phone

The landlord’s complaints policy states:
1. “Under the Equality Act 2010, the Council has a duty to adapt normal policies, procedures, or processes to accommodate an individual’s needs. We should therefore be prepared to make reasonable adjustments requested by the customer when dealing with complaints. For example, this could include taking a complaint by phone if the customer has a disability; or sending a response to a specific email address; or sending the response by printed letter; or sending the response in large print”.
The resident stated in his email dated 7 December 2023 that members of the landlord’s contact centre had refused to accept his complaint over the phone. He also said that one member of staff had been obstructive by refusing to give a yes or no answer when he had asked whether the staff member would accept the complaint over the phone. The landlord stated in its stage one reply that it had listened to the calls listed by the resident and concluded that the agents should have accepted his complaint over the phone.
It was appropriate that the landlord had listened to the call recordings as part of its investigations. This enabled it to hear its agents’ conversations with the resident verbatim, including the call with the agent the resident had said had been obstructive. It was reasonable that having listened to the calls, the landlord advised the resident in clear terms that its agents should have accepted the complaint over the phone. This was in line with its complaints policy, which states that it should be prepared to make reasonable adjustments when taking a complaint, which could include taking a complaint over the phone if a resident has a disability. It was therefore appropriate for the landlord to acknowledge there had been service failings and to apologise for the agents’ mishandling of the resident’s calls.
The landlord confirmed in its stage 2 reply dated 16 April 2024 that its stage one reply had appropriately dealt with the complaint about its contact centre agents not taking his complaints over the phone.
The landlord’s initial failures to accept the resident’s complaint over the phone meant that he had to ring the landlord on several occasions on 7 December 2023 and request the agents to accept the complaint over the phone. This caused the resident to spend additional time and effort attempting to raise his complaint.
When there are failings by a landlord, as is the case here, the Ombudsman will consider whether the remedy offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this, the Ombudsman takes into account whether the landlord’s remedy was in line with the Ombudsman’s Dispute Resolution Principles; be fair, put things right and learn from outcomes.
The landlord acted fairly by acknowledging and apologising for its failings in not accepting the resident’s complaint by phone. It also demonstrated learning by reminding its staff about the importance of a flexible approach in accepting complaints and reminding them that some residents are unable to raise complaints online.
The landlord’s stage one response did not specifically refer to the agent who the resident had said refused to give a yes or no answer to his question. However, in the Ombudsman’s view, this was not unreasonable as it had acknowledged the service failings generally in terms of the agents’ call handling and this would have included the agent that the resident had specifically mentioned.
The Ombudsman has taken into account that the resident emailed his complaint to this Service, his solicitor and other addressees on 7 December 2023 but did not include the landlord. Therefore, the landlord did not have the opportunity to address the resident’s concerns earlier.
Overall, the Ombudsman’s view is that the landlord provided reasonable redress in relation to the resident’s report about its staff refusing to take his complaint over the phone. The landlord acknowledged its failings, apologised and reminded its staff of the need for a flexible approach.

The landlord’s response to the resident’s reports that a neighbour was smoking illegal substances

The landlord’s ASB Procedure states that after receiving a report of ASB, the landlord will triage the report to determine whether it is urgent or non-urgent. The landlord will then acknowledge the report and arrange an initial interview with the resident who has reported the ASB to carry out a risk assessment and produce an action plan.
In his email dated 7 December 2023, the resident stated that his neighbour was smoking illegal substances, which was creating a nuisance and was causing him distress. He gave the address of the neighbour, which for the purposes of this assessment is referred to as Flat X. The Ombudsman sent the landlord a copy of the resident’s complaint on 16 February 2024.
The landlord stated in its stage one reply on 1 March 2024 that it had not previously been made aware of the resident’s allegations about his neighbour in Flat X smoking illegal substances. However, it agreed to record this and investigate the allegations in line with its ASB policy. It was appropriate that the landlord had agreed to record the allegations on its system so that it could follow its ASB procedure.
The landlord sent a letter to the neighbour at Flat X on 1 March 2024. The letter reminded the neighbour that the smoking of illegal substances was in breach of the tenancy conditions and gave him the opportunity to attend an interview to discuss the allegations.
The landlord wrote to the neighbour of Flat X again on 8 March giving him the opportunity to attend an interview to discuss the allegations. However, in his stage 2 complaint, which the landlord received on 21 March 2024, the resident stated that his neighbour in Flat Y had been responsible for smoking illegal substances, not the neighbour in Flat X. The resident disputed that the landlord had not previously been aware of the neighbour smoking illegal substances as he had spoken to the landlord about this several times.
The resident had incorrectly given the address of Flat X in his initial complaint and therefore this was the address the landlord was referring to in its stage one reply. This would reasonably explain why the landlord had advised the resident that it was unaware of previous reports regarding the neighbour.
In its stage 2 reply, the landlord explained why it had written to the wrong neighbour and pointed out that the resident had made the allegation against the tenant of Flat X. The landlord explained that it had therefore sent letters to the tenant of Flat X and confirmed that it investigated all allegations thoroughly.
Having reviewed the evidence, the Ombudsman’s view is that the landlord was not at fault for initially believing the resident’s allegations were in relation to Flat X. However, this Service has not seen any evidence that the landlord arranged an initial interview with the resident after receiving his complaint about a neighbour smoking illegal substances. The landlord therefore did not follow its ASB procedure of arranging an initial interview to carry out a risk assessment and formulate an action plan. This was unreasonable as the landlord had not given the resident the opportunity to provide more details and any evidence regarding his allegations.
The failure to arrange the initial interview meant the landlord had not engaged with the resident in order to properly assess the risks prior to writing to the neighbour of Flat X. The interview would also have enabled the landlord to obtain more details about the outcome the resident was seeking and to put together an action plan. Finally, the interview would, have reduced the risk of the landlord taking action against the wrong neighbour.
Although the landlord explained in its stage 2 reply why it had taken action against the neighbour of Flat X instead of Flat Y, it did not go on to confirm that it would now interview the resident in accordance with its ASB procedure. This was unreasonable as the landlord did not take the opportunity to say how it would address the resident’s outstanding concerns about a neighbour smoking illegal substances.
The Ombudsman has noted that the landlord’s Tenancy Officer had spoken with the resident on 3 November 2023 regarding allegations his neighbour in Flat Y was leaving items in the fire escape route. However, this Service has not seen any evidence that the landlord interviewed the resident after his complaint on 21 March 2024 about the allegations the neighbour was smoking illegal substances.
In summary, the Ombudsman has found there was maladministration in the landlord’s response to the resident’s reports that a neighbour was smoking illegal substances because:
1. It did not follow its ASB procedure and arrange an initial interview with the resident to produce a risk assessment and action plan.
2. It did not use its stage 2 reply to confirm that it would follow up the resident’s reports that the neighbour in Flat Y was smoking illegal substances.
The Ombudsman has ordered compensation of £150, which is within the range of financial redress stipulated in the Ombudsman’s Remedies Guidance for maladministration which adversely affected the resident. In this case, the resident was not given the opportunity to discuss his concerns about the neighbour with the landlord and agree an action plan, taking into account any risks. The resident had stated in his stage one complaint that the neighbour’s behaviour was causing a nuisance and was causing him distress.
As stated in the Remedies Guidance, the Ombudsman’s position is that compensation awarded by this Service should be treated separately from any existing financial arrangements between the landlord and resident and should not be offset against arrears. This applies regardless of whether the landlord’s compensation policy allows it to do this.

The landlord’s handling of the associated complaints

The landlord’s complaints procedure states that direct contact with the person making the complaint is valuable and efforts should be made, whenever it is practical and/or operationally possible to do so, to contact the complainant at the start of the complaint investigation process.
The landlord operates a 2-stage complaints process and will reply to stage one complaints within 10 working days and to stage 2 complaints within 20 working days.
On 16 February 2024, this Service sent the landlord a copy of the resident’s stage one complaint dated 7 December 2023. The evidence shows the landlord had not previously been sent a copy. The landlord sent its stage one reply on 1 March 2024, which was 10 working days after receiving a copy of the complaint from the Ombudsman. The landlord therefore replied within the appropriate timescale.
The landlord received the resident’s stage 2 complaint on 21 March 2024 in which he expressed his dissatisfaction with the landlord’s stage one reply. The landlord sent its stage 2 reply on 16 April 2024, which was 17 working days after it received the stage 2 complaint. The landlord therefore responded within its advertised timescale for stage 2 complaints.
The resident has advised this Service that the landlord had not spoken to him about the stage 2 complaint before sending its reply. However, the landlord has provided information to the Ombudsman stating that it phoned the resident twice before issuing the letter but did not get through. Furthermore, there was no facility to leave a voicemail message. It was reasonable that the landlord had attempted to ring the resident to discuss the complaint as this was in line with its policy.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s report that a caretaker contacted him about rubbish in the communal area.
In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, and in the Ombudsman’s opinion, there was reasonable redress offered by the landlord in relation to its response to the resident’s report that the landlord was obstructive and refused to accept his complaint by phone.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its response to the resident’s reports that a neighbour was smoking illegal substances.
In accordance with paragraph 42(l) of the Housing Ombudsman Scheme, the resident’s reports about a general lack of accessibility in the landlord’s services because he is requested to use online services is outside the jurisdiction of the Ombudsman.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the associated complaints.

Reasons

The landlord carried out a reasonable investigation into the resident’s complaint that the caretaker had spoken to him about rubbish in the communal area. The landlord’s staff are entitled to speak to residents regarding rubbish in communal areas.
The landlord provided reasonable redress in relation to the resident’s report about its staff refusing to take his complaint over the phone. The landlord acknowledged its failings, apologised and reminded its staff of the need for a flexible approach.
The landlord did not follow its ASB procedure and arrange an initial interview with the resident to produce a risk assessment and action plan. It did not use its stage 2 reply to confirm that it would follow up the resident’s reports that the neighbour was smoking illegal substances.
In the Ombudsman’s opinion, the Local Government and Social Care Ombudsman has already investigated the resident’s reports about a general lack of accessibility in the landlord’s services because he is requested to use online services.
The landlord responded to the stage one and stage 2 complaints within the appropriate timescales.

Orders

The landlord is ordered within 4 weeks of this report to:
1. Contact the resident to apologise for the failings identified in this report.
2. Pay the resident £150 for its handling of the resident’s reports of a neighbour smoking illegal substances.
3. Interview the resident regarding his report about the neighbour smoking illegal substances and produce a risk assessment and action plan.