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Wakefield And District Housing Limited (202000248)

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REPORT

COMPLAINT 202000248

Wakefield And District Housing Limited

31 January 2021

 


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 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:

  • A letter sent to the resident by the landlord about potential tenancy enforcement action.
  • The landlord’s handling of a neighbour dispute concerning the resident’s hedge.
  • The landlord’s handling of anti-social behaviour reports by the resident against his neighbour.
  • The landlord’s assessment of the resident’s housing application.

Jurisdiction

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
  2. After carefully considering all the evidence the following aspects of the complaint are outside of the Ombudsman’s jurisdiction.
  3. On 23 March 2020 the landlord spoke to the resident to confirm particular elements of his complaint:
    1. The resident had received a letter from the landlord dated 9 July 2019 alleging that he had been in his neighbour’s garden and cut the party hedge. The resident felt the hedge was present in his garden exclusively as there is a six foot wall on the boundary line. He was unhappy with the landlord’s handling of the issue, and particularly that the landlord had refused to watch video evidence refuting the allegations.
    2. At a previous visit by the landlord on 3 September 2018, the resident had shown video evidence of his neighbour threatening him to the landlord’s representative but stated that nothing ever came of this. He brought this up with another member of staff at their visit on 16 August 2019 but again, no further action was taken.
  1. In its complaint response of 3 April 2020, the landlord set out its response to these elements of the complaint:
    1. Regarding the complaint about the letter received from the landlord about his cutting of the hedge, the last notes on its system in relation to the matter were made on 16 July 2019 following a visit it made to the property. Under its complaints policy it stated that it was not considering the complaint as the complaint had been made more than four months after the issue occurred.
    2. Similarly, it took the same position regarding the complaint about the landlord’s visit on 3 September 2018 and his attempt to chase up the matter on 16 August 2019, given this was also brought to the landlord as a complaint more than four months after the issue occurred.
  1. It confirmed this position in its final complaint response of 8 April 2020.
  2. Paragraph 39(e) of the Housing Ombudsman Scheme notes that the Ombudsman will not investigate complaints which were not brought to the attention of the landlord within a reasonable period which would normally be within six months of the matters arising. Given the fact that a formal complaint was not raised until 6 March 2020, these issues were not brought to the attention of the landlord as a formal complaint within a reasonable period of time. This is the case in these circumstances when judged against both the complaints policy of the landlord and the Housing Ombudsman Scheme, which have time limits of four and six months respectively. The resident has asked why he had not been informed of the landlord’s four month time limit on complaints, though this was explicitly set out in the landlord’s complaints policy and on the landlord’s website at the ‘How do I make a compliment/complaint?’ page. The landlord was entitled to rely on this policy, which is supported by a similar time limit in the Housing Ombudsman Scheme. As a result, these complaints are outside of the Housing Ombudsman’s jurisdiction to consider.
  1. The resident made an application to the landlord for a transfer, which was originally considered and decided on by the landlord in November 2019. The resident later stated that he had requested a review of the decision in December 2019 and January 2020. On 23 March 2020 the resident confirmed that he wished to complain about his ‘Homesearch banding’, i.e. the classification/banding his housing application was determined to have. He said he had applied to have his banding reassessed as his neighbour’s had been. As he had been advised that this could not be changed he considered that he had been mistreated and that the decision also amounted to discriminatory action in light of the result being different to the neighbour’s application.
  2. In the landlord’s complaint response of 3 April 2020, it set out its response to this complaint, acknowledging that the resident felt discriminated against. Regarding the neighbour’s classification/banding on ‘Homesearch’, the landlord noted that due to the requirements of data protection it was unable to discuss any aspects of the neighbour’s application with the resident. It had however reviewed again the resident’s banding following the application he registered on 1 November 2019. It noted it was satisfied that the initial classification was correct, while also noted that it had no record of him asking for the banding to be reviewed or reconsidered. In its final complaint response of 8 April 2020, the landlord also set out that the applications were based on an applicant’s individual circumstances, and that it had no record of the resident requesting the banding be reviewed, while nevertheless setting out the process via which the resident could request this. It therefore rejected this part of the complaint.
  1. Paragraph 39(m) of the Scheme sets out that the Ombudsman will not consider complaints that fall property within the jurisdiction of another Ombudsman, regulator or complaint-handling body. The landlord’s handling of the resident’s housing application under a choice-based letting scheme for the local authority is a matter that falls under the jurisdiction of the Local Government and Social Care Ombudsman. As a result it is outside of the Housing Ombudsman’s jurisdiction to consider.
  2. Additionally paragraph 39(i) of the Scheme sets out that the Ombudsman will not consider complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure. Part of the resident’s complaint is that he feels he has been discriminated against by the landlord when compared to his neighbour who he believes received favourable treatment. The Ombudsman is unable to consider whether discrimination has occurred, as this is a matter that would be better considered by the courts. As a result it is outside of the Housing Ombudsman’s jurisdiction to consider.
  3. The resident has a separate complaint that is being considered by the Housing Ombudsman relating to the conduct of staff and a Subject Access Request made by him. These issues are being considered by the Ombudsman under case reference 202006961 and are therefore not considered in this report.

Background and summary of events

  1. The resident has had an assured tenancy with the landlord since 9 July 2012.
  2. On 18 December 2019 the local police wrote to the landlord noting that the resident was being charged with a criminal offence.
  3. On 27 February 2020 the landlord wrote to the resident noting that it had been made aware that he had been summoned to court regarding a criminal charge. It noted that it would take tenancy enforcement action against him if he was found guilty of the criminal charge of damaging his neighbour’s vehicle. It quoted particular elements of his tenancy agreement that prevented him from causing nuisance, annoyance or disturbance to another person or to carry out any form of harassment.
  4. On 5 March 2020 the police contacted the resident to advise that the case against the resident was being dropped for lack of evidence.
  5. On 6 March 2020 the resident rang the landlord to raise a formal complaint regarding various issues. He noted he had received what he considered to be “threatening and cryptic” letters from the landlord, the most recent one being the 27 February 2020 letter. This particular letter was referring to a police matter which he stated “had nothing to do with” the landlord.
  6. The landlord advised the resident that a manager would call him back to discuss the next steps of the complaint. One attempted to do so that day but was unable to get through to the resident.
  7. On 9 March 2020 the landlord rang the resident to discuss the complaint, and again on 11 March 2020 to confirm the basis of the complaint, noting that it would be confirmed in writing.
  8. On 17 March 2020 the landlord provided a formal written confirmation of the complaint to the resident. It noted the resident’s requested resolution to the complaint was for the landlord to stop sending threatening letters to him and to clarify why he was being treated differently to his neighbour. It committed to providing a reply within ten working days.
  9. On 23 March 2020 the landlord spoke to the resident on the phone, noting that there were extra elements he wished to add his complaint and that the deadline would be extended until ten working days after the date of the call. It confirmed these in a letter of the same day, though the issues of the substantive complaint considered here remained the same.
  10. On 3 April 2020 the landlord provided its stage one complaint response in which it set out the following:
    1. It noted that it had reviewed the letter sent to the resident on 27 February 2020. Its records showed that it had been notified by local police that the resident had been charged with a criminal offence and was due to appear in court on 4 March 2020. As a result of this contact from the police, the letter was sent noting that the landlord would take tenancy enforcement action against the resident if he was convicted of the offence, which the landlord stated was an approach in line with its Antisocial Behaviour Policy.
    2. Additionally, the resident’s tenancy agreement sets out particular types of behaviour which can result in tenancy enforcement action being taken, including a resident or visitors engaging in any illegal, immoral or unlawful activity. Therefore the letter sent was to advise of the action that would be taken and was in line with its policy. It therefore rejected this part of the complaint.
  11. On 7 April 2020 the resident emailed the landlord to request the complaint be escalated, however the escalation request largely referred to the complaints previously determined to be outside the Ombudsman’s jurisdiction to consider.
  12. On 8 April 2020 the landlord acknowledged receipt of the escalation request but stated that it was rejecting the request on the basis that he had not provided valid reasons why he believed the complaint had not been adequately addressed.
  13. On 27 May 2020 the landlord wrote to the resident about another complaint. In this response, it noted that it had received a document from the local police that confirmed the position it set out in its letter of 27 February 2020. It advised the resident that he could make a SAR to the police if he wished to access this document.

Policies and Procedures

  1. The resident’s tenancy agreement sets out that the resident must not cause a nuisance, annoyance or disturbance to any other person, damage property or engage in any illegal, immoral or unlawful activity. The agreement also notes that a court must order possession in circumstances where the resident or a person residing in or visiting the dwelling house:
    1. Has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in lawful activity in the locality; or
    2. Has been convicted of an arrestable offence committed in, or in the locality of, the dwelling house.
  2. The landlord’s antisocial behaviour policy sets out that that residents must not cause nuisance, annoyance or disturbance to other persons, damage property or engage in any illegal, immoral or unlawful activity. The landlord will respond to reports of ASB by developing an action plan based around contact with both the reporting parties and alleged perpetrators.
  3. The landlord’s complaints policy at the time of the complaint set out that the landlord would only consider complaints about issues that had arisen, or that the resident had become aware of, within the four months prior to the complaint being made.

Assessment and findings

  1. The letter sent to the resident on 27 February 2020 set out the information the landlord had become aware of regarding the criminal charge, the provisions in the resident’s tenancy agreement that prohibited him from undertaking such actions and the potential consequences of tenancy enforcement action and loss of his home that could result from a guilty verdict. In communicating this with the resident, the landlord put him on notice regarding the potential ramifications of the charge and relied on the provisions of the agreement made with the resident to justify its position.
  2. The resident has stated in his complaint that the issue is a police matter and has nothing to do with the landlord. Nevertheless the landlord has rightly pointed out that its ASB policy and the resident’s tenancy agreement expressly prohibit him from undertaking various actions that may cause nuisance, annoyance or disturbance to any other person or damage property. It also specifically sets out that the undertaking of illegal activity will result in his tenancy being at risk. Despite this, the letter made clear that it would monitor the outcome of the hearing, and that enforcement action would only be taken if the resident was convicted of the offence.
  3. The landlord was therefore within its rights to send the letter to the resident setting out the potential consequences of the charge. The letter itself, while dealing with a serious matter being potential tenancy enforcement action, was written in a reasonable manner and was not overtly threatening or rude. It objectively set out the reason for the communication, the specific terms of the policy and the potential outcome of the situation. It also noted that the resident could contact a particular staff member to discuss the issue further should he have any queries or concerns, which allowed the resident an avenue via which he could and did dispute the landlord’s position regarding the link between the charge and his tenancy.
  4. The landlord’s complaint response of 3 April 2020 set out these justifications for sending the 27 February 2020 letter to the resident which was a valid response to the resident’s concerns that it had been “threatening”. While the complaint response on this point largely restated parts of the original letter, it did so to justify the position taken and was therefore a valid response to the complaint.
  5. On the basis of the above considerations, the letter was a proportionate response in the circumstances to the issue that had arisen and was drafted in accordance with the landlord’s policies and procedures.
  6. The initial complaint was raised on 6 March 2020 with the landlord providing its stage one response on 3 April 2020. While this was some time outside the landlord’s set response timeframe of ten working days, the evidence demonstrates that the landlord was engaging with the resident over this period to discuss the issues and clarify the scope of the complaint. It kept the resident updated and also noted the changes to its timeframe on the basis of further information being added to the complaint. The response to the escalation request was provided to the resident the day after the request. Additionally, the landlord was within its rights under its policy to elect not to escalate the complaint, given the resident had raised no new points regarding the substantive issue of the 27 February 2020 letter, and the complaint response nevertheless included information intended to assist resolving the other complaints the landlord had raised.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration regarding the landlord’s letter to the resident about potential tenancy enforcement action.

Reasons

The landlord acted in accordance with its policies by drawing the resident’s attention to the terms of his tenancy agreement and policy setting out that a criminal conviction may result in tenancy enforcement action. The letter it sent to the resident was objective in setting out the information it had become aware of, the relevant tenancy/policy provisions and its position regarding the potential consequences of a criminal conviction. While the letter concerned a serious issue, it was written objectively and was a proportionate response to the issue in terms of putting the resident on notice. Furthermore it specifically noted that any enforcement action was predicated on a guilty verdict, while setting out avenues for the resident to contact the landlord to discuss it if he wished.