Vale of Aylesbury Housing Trust Limited (201912723)

REPORT

COMPLAINT 201912723

Vale of Aylesbury Housing Trust Limited

28September 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 Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

1. This complaint is about:

•      the landlord’s decision to seek an injunction on the resident
•      the landlord’s response to reported anti-social behaviour
•      the landlord’s handling of the resident’s complaint and an ongoing contact restriction, which the landlord placed upon the resident

Jurisdiction

2. 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.
3. After carefully considering all the evidence, in accordance with paragraph 39(h) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.
4. The resident is concerned that the landlord wrongfully raised an injunction against him, which resulted in court action. Although the landlord later halted the proceedings, the resident is seeking to recover costs that he feels were incurred unfairly, at a time when he was unemployed. The landlord’s injunction included a power of arrest.
5. Paragraph 39(h) of the Scheme says the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, ‘concern matters that are, or have been, the subject of legal proceedings and where a complainant has or had the opportunity to raise the subject matter of the complaint as part of those proceedings.’
6. Further, it is not within our remit to determine the merits, or otherwise, of court proceedings. We do not perform the same role as the Court Service, which is a higher authority, and we do not have the same powers. As a result, we are unable to award punitive damages to any of the parties involved in a dispute.

   Ultimately, we are unable to influence or overturn a decision of the courts. However, it is noted that the tenancy agreement confirms the landlord is entitled to initiate court proceedings if it considers certain aspects of the tenancy agreement have been breached.

7. From the evidence seen by this service, the application for an injunction was made following allegations that the resident had engaged in violence, threatening behaviour, and verbal abuse. Further evidence confirms the proceedings were dropped by the landlord, and the power of arrest was set aside, in May 2020, although no explanation as to why this happened has been provided.
8. Given the above, this assessment will focus on the other aspects of the resident’s complaint which do fall within our jurisdiction.

Background and summary of events

Background

9. The resident is an assured tenant and his tenancy began on 30 May 2011. The tenancy agreement doesn’t give details of the property type, but this service has viewed an image of the property on Google Street View to provide context for our assessment.
10. The tenancy agreement sets out various grounds on which the landlord may commence court action against the tenant. It references several sections of the Housing Act 1988 (as amended by the Anti-Social Behaviour Act 2003). It contains the following wording:

    ‘For the avoidance of doubt, we may also apply for an injunction or an anti-social behaviour order:

    …if you, or any other person living in or visiting your home, cause nuisance or annoyance, harassment, anti-social behaviour, criminal activity, or violence against others’

11. The landlord’s anti-social behaviour policy aims ‘to focus on the sustainment of tenancies by balancing prevention initiatives and enforcement actions…’

    and to

    ‘Investigate all reports where the matter constitutes ASB (anti-social behaviour) against or caused by our residents.’ The document shows the landlord reserves the right to decline to investigate reports where the complaint is vexatious or clearly malicious.

12. The landlord has a ‘complaints and compliments policy’ which can be found online. The policy sets out the details of the landlord’s three stage complaints procedure. It confirms reports of anti-social behaviour are not classed as complaints since they are covered separately by the anti-social behaviour policy.
13. The complaints policy describes the circumstances during which the landlord may restrict contact with a complainant. It shows restrictions could be applied if the landlord decides a complaint is being pursued in an ‘unreasonable or persistent’ manner. The policy clarifies that further information on contact restrictions can be found within the landlord’s ‘Unreasonable or persistent complaints – Guidance’ document.
14. The guidance document sets out the following information:

    ‘A Senior Manager will monitor the behaviour of all service users with restricted contact arrangements as necessary and may consider removing the restrictions if future behaviour improves.’

    The information does not give details of any review process or timescales which may apply to a restriction. It does say that a complainant can appeal a contact restriction.

15. The landlord has provided information which includes the tenancy agreement, a copy of its anti-social behaviour policy, its internal notes and copies of related correspondence.
16. The resident has provided copies of court documents along with related correspondence.

Summary of events

17. The resident was arrested on 30 December 2019 following an altercation with a neighbour. The evidence seen by this service suggests that no charges were brought. The resident has said his arrest came about following allegations and counter allegations between the involved parties.
18. On 3 January 2020 the resident reported an instance of anti-social behaviour to the landlord. The landlord’s internal notes show the report related to an incident where verbal abuse was directed towards the resident. The notes say the resident made the landlord aware that he had phone footage of the incident but that this was not provided.
19. The landlord issued a stage one complaint response on 11 February 2020 addressing 19 separate complaint points. Some of the points raised refer to historic issues going back as far as July 2019. In summary, the resident complained that the landlord failed to take appropriate action in relation to his reports of antisocial behaviour and his complaint. The resident also questioned the appropriateness of some actions that were taken by the landlord. The landlord did uphold any aspect of the complaint, broadly, on the basis that insufficient evidence had been provided to support the resident’s conclusions.
20. Shortly afterwards, the resident notified the landlord that he wanted to escalate his complaint to the second stage of its complaints process. The landlord acknowledged his request on 14 February 2020. The acknowledgement says the request would be reviewed at a senior level providing the resident submitted the reasons for his request in writing.
21. On 27 February 2020 the landlord declined to escalate the resident’s complaint to the second stage of its complaints process. Its confirmation letter says its initial investigation was ‘very thorough’ and it had found ‘no reason to support additional investigation into this matter’. At this stage the resident was given referral rights to this service.

Assessment and findings

22. The evidence shows the resident has been experiencing issues relating to anti-social behaviour over several years. It is acknowledged that this situation will have been frustrating to him.
23. This service is bound to act in accordance with the rules set out in the Housing Ombudsman Scheme. Paragraph 39 of the scheme describes the circumstances when this service will not investigate a complaint. 39(b) confirms complaints that were brought to our attention more than 12 months after they exhausted the landlord’s complaint procedure will, normally, not be considered.

    Since evidence has been provided that the landlord closed a complaint relating to events in July 2019 on 12 November 2019, we are unlikely to be able to consider this aspect of the complaint. It is noted that the resident has not specifically raised these issues as a concern during his correspondence with this service.

24. The Ombudsman considers complaints about how a landlord has responded to reports of a problem. It is not the Ombudsman’s role to decide if the actions of the alleged perpetrators amounted to anti-social behaviour, but rather, whether the landlord dealt with the resident’s reports about this appropriately and reasonably.
25. Given the above, the scope of this assessment is limited to whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this service’s opinion, fair in all the circumstances of the case.

Response to reported anti-social behaviour

26. In relation to the landlord’s handling of the resident’s report of anti-social behaviour in January 2020, the landlord’s aim, according to its anti-social behaviour policy, is to ‘Investigate all reports where the matter constitutes ASB (anti-social behaviour) against or caused by our residents’.
27. The landlord’s internal notes refer to a lack of sufficient evidence to support the resident’s allegation of verbal abuse. However, they also show that the landlord attempted to work around the problem by progressing its investigation using a number of its own internal records. This action was appropriate given the serious nature of the incident and was taken in line with the above policy aim.
28. It is noted that the landlord’s Anti-Social Behaviour Policy reserves the right to decline to investigate a report of anti-social behaviour in some circumstances. The information seen by this service shows the landlord did not attempt to make use of this right in relation to the resident’s report. Instead, the landlord engaged with the resident’s concerns and sought to conduct further investigation until this process was brought to a stop by the lack of sufficient supporting evidence.
29. In these circumstances, it was reasonable for the landlord to ask the resident to provide the necessary evidence (phone footage or other relevant materials) to allow it to progress its investigation. Further, given the nature of the reported incident, it is reasonable for the landlord to ask for the evidence to be of sufficient quality to allow its investigation to draw firm conclusions. Should such information be provided, it may then be appropriate for the landlord to re-start its investigation.
30. Where an incident has also been referred to the police, it is reasonable to conclude that the landlord may need to await the outcome of any criminal proceedings before taking its own action. From the evidence, it is unclear whether the police were notified of this incident.
31. It is noted that the resident was interviewed by the landlord in relation to his arrest in December 2019. From the evidence, it is not clear exactly when this interview took place. However, it seems to have occurred around the same time the resident reported the incident of verbal abuse.

    It is acknowledged that the resident was unhappy with the way this interview was conducted. However, the fact it took place supports the conclusion that the landlord had taken appropriate steps to investigate a report of anti-social behaviour in line with its policy. This service has not seen any evidence relating to the conduct of this interview.

32. Given the above, the evidence this service has seen shows the landlord acted appropriately in response to the resident’s report of anti-social behaviour in January 2020.

Complaint handling and contact restriction

33. With regards to the landlord’s complaint handling, it is noted that the resident raised concerns about this during his previous contact with this service. Specifically, the resident feels the landlord has not engaged with his complaint points and that he was inappropriately prevented from escalating his complaint to stage two of the landlord’s complaints process.
34. Concerning the landlord’s engagement with the resident’s complaint points, the stage one complaint response shows each issue raised has been considered and addressed in a reasonable fashion. The resident has also been given an opportunity to provide further evidence for the landlord to investigate. Whilst the resident’s complaint points are noted, they are not supported by the evidence this service has seen. As a result, the stage one response represents an appropriate reply on the part of the landlord.

    It is noted the resident has reservations about members of the landlord’s staff who are responsible for handling anti-social behaviour. However, the landlord’s complaint response was issued by another member of staff. This represents good practice given the circumstances. This service has not seen evidence to show the landlord has acted inappropriately whilst investigating the resident’s complaint.

35. In relation to the landlord’s decision not to escalate the complaint to stage two, the landlord’s online complaints procedure details the range of potential next steps available to a complainant at each stage of its investigation process. It shows that a referral to this service, as an independent mediator, is a possible outcome at each of the three stages. As a result, the landlord has acted in line with its complaints process.

    Further, it was appropriate for the landlord to refer the resident after the completion of stage one, given its correspondence shows it was highly unlikely it would have reached a different outcome, even if the complaint had been escalated through all three stages, without further evidence from the resident. From the evidence this service has seen, the early referral did not cause any detriment to the resident.

36. In relation to the contact restriction, the landlord has provided correspondence from August 2018 which says the contact restriction was put in place following an abusive and threatening call from the resident. It also says the call was not an isolated incident, which is described as a breach of the tenancy agreement. Given the time that has passed since the incident, it is highly unlikely this service would be able to consider a complaint about the restriction being put in place. However, it is noted that such restrictions are in line with the landlord’s complaints policy and, if there was a breach of the agreement, that the tenancy was sustained in this instance.
37. This assessment has considered whether the restriction has presented an unreasonable barrier to the resident’s complaint. From the evidence seen by this service, there is no indication the resident has had difficulty in communicating his complaint points to the landlord, and it is noted the landlord’s communications include the contact details of the correct members of staff for him to correspond with.
38. The landlord’s complaints policy and accompanying guidance do not set out any formal requirement to review the contact restriction within a given period. As a result, this service has not seen evidence that the restriction remains in place unfairly. Given the above, the evidence shows the landlord’s behaviour has been appropriate in this regard. However, it is good practice to review contact restrictions periodically to ensure they remain appropriate. Accordingly, this assessment has made a recommendation to review the restriction which is set out below.

Determination (decision)

39. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to the resident’s report of anti-social behaviour in January 2020.
40. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in respect of the landlord’s handling of the resident’s complaint, or the contact restriction it placed on him.

Reasons

41. This service is unable to pass judgement on the merits of the landlord’s court action given it is not within our jurisdiction to do so.
42. The evidence shows the landlord has acted appropriately in respect of the resident’s report of anti-social behaviour.
43. The evidence shows the landlord has acted appropriately in respect of the resident’s complaint.
44. There is no evidence to show the landlord has acted inappropriately in relation to the ongoing contact restriction, which is in line with the landlord’s policy and guidance.

Recommendations

45. The landlord to review the resident’s contact restriction, to establish whether it remains appropriate in the current circumstances, and to write to the resident with its findings.
46. The landlord should confirm its intentions regarding these recommendations to this service within four weeks of the date of this report.