Housing 21 (202117730)

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REPORT

COMPLAINT 202117730

Housing 21

20 May 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

  1. The complaint is about the landlord’s response to the resident’s reports of misconduct by a member of the landlord’s staff, relating to a meeting held on 14 January 2020.

Background

  1. The resident is a tenant of the landlord.
  2. A meeting took place between the resident and a member of the landlord’s staff on 14 January 2020 to discuss accusations made by a contractor (gardener) about the resident’s behaviour.
  3. The accusations made against the resident relate to a separate complaint raised with the landlord. As this is a separate issue to the complaint brought forward for this Service to investigate, this is not something that we can assess at this stage, as the landlord needs to be provided with the opportunity to investigate and respond through its internal complaints procedure (ICP) first.
  4. Similarly, it is noted that the resident has a number of complaints with the landlord which have yet to exhaust the landlord’s ICP and do not form the basis of this current complaint. Therefore, whilst some incidents provide contextual background to the current complaint, and whilst there is, on occasion, some cross-over between the various complaints, this assessment focusses solely on the staff conduct complaint, specifically in relation to the meeting on 14 January 2020.             
  5. The resident made a formal complaint about the behaviour of one of the members of staff during the meeting on 14 January 2020, contending that she was aggressive throughout and, at one point, stood over him which he deemed to be intimidation. The resident was also dissatisfied with a senior member of staff, who he believed should have known what was going to materialise.
  6. Following an investigation, the landlord partially upheld the complaint, concluding that the member of staff did indeed stand over the resident, but it was satisfied that there was no aggression nor intimidation intended. Moreover, it found that it failed to follow correct procedure as it would have been more appropriate for another member of staff – who was present at the time and had already obtained the details of the contractor’s allegations – to have initiated a meeting. As way of redress, the landlord apologised and offered £100 compensation in acknowledgement of its failure to request and undertake the meeting in an appropriate way, and for the distress and inconvenience caused.
  7. The resident remained dissatisfied with the landlord’s investigation because he believed that the staff member’s conduct was harassment and wanted the landlord to acknowledge this.

Assessment and findings

Scope of Investigation

  1. As previously mentioned, the resident has raised numerous complaints with the landlord, some of which provide context to this complaint. However, these do not form the basis of this current complaint, as these are separate issues to the one raised with this Service, and therefore will not be addressed in this assessment.
  2. It is also acknowledged that it is the resident’s belief that the conduct of the member of staff, during the meeting on 14 January 2020, did constitute harassment and intimidation. However, whilst we do not doubt the resident’s personal assessment of the events, this Service cannot make a determination on the nature or intent of the member of staff’s actions.  Where harassment is alleged, we cannot make a decision that this has in fact occurred; this would be more appropriate for the police and the courts to decide. Nevertheless, we can look at whether the landlord responded fairly and appropriately to the resident’s allegations of misconduct by its staff.

Policies and Procedures

  1. The landlord’s code of conduct policy and procedure sets out the minimum standard of conduct and behaviour required by the landlord’s staff when liaising with residents. In particular, it states that staff should be professional and residents should be treated with respect at all times.
  2. The landlord’s professional policy and procedure aims to ensure all the landlord’s staff understand what is meant by professional boundaries and should be used in conjunction with code of conduct policy. It reiterates that employees should address residents in a respectful manner.
  3. The landlord’s guide to making a suggestion, comment, compliment or complaint document stipulates that a full response to a formal complaint will be provided within 15 working days.
  4. The landlord’s compensation policy and guidance details when discretionary compensation will be considered. It states that compensation may be appropriate where the landlord has failed to provide a service or where a lack of service or loss has resulted in a resident believing they have suffered distress or a loss as a result of its action or inaction. Compensation can be awarded for distress or inconvenience that may have resulted from the landlord’s service failures. The level of compensation will be proportionate to the inconvenience, stress, disturbance or annoyance suffered.
  5. The landlord has three categories when considering awarding compensation for identified service failures, depending on the severity of the service failure. They are as follows:
    1. Low impact, where compensation up to £20 will be awarded for one instance of inconvenience caused;
    2. Medium impact, where compensation between £20 to £100 will be offered for a succession of service failures with a problem not resolved within a reasonable timescale; and
    3. High impact, where compensation between £100 to £500 will be considered for cases of serious or prolonged service failure or loss of facilities resulting in severe distress, disruption, inconvenience or loss of income.

Assessment

  1. When carrying out an investigation following a report of alleged ASB, the landlord should ensure that, when conducting interviews with complainants and alleged perpetrators alike, it and its staff adheres to the principles set out in the landlord’s code of conduct policy and procedure, as well as its professional policy and procedure. The two policies do not offer an exhaustive list of behaviours a staff member must complete when speaking to residents. Rather, the two combined policies provide staff with a minimum standard of behaviour, with an emphasis on remaining respectful and professional at all times.
  2. Following the conclusion of the landlord’s investigation, it is not disputed by either party that, during the meeting on 14 January 2020, the accused member of staff did not adhere to the minimum standards of behaviour set. However, the severity of the staff member’s behaviour, as well as the intention of the said behaviour, is in dispute, with the resident contending that the staff member’s behaviour was aggressive, intimidating and constituted harassment, whereas the landlord’s investigation concluded that this was not the intention of the staff member involved.
  3. As previously mentioned, we are not in a position to make a determination on the nature or intent of the member of staff’s actions, especially as there is no conclusive evidence to support either parties’ version of events. When there are conflicting accounts of what happened, with insufficient evidence to confirm either way what events took place, it would not be possible for the Ombudsman, as an independent organisation, to make firm conclusions on the specifics of that day. Instead, in the absence of documents (notes, correspondence) from the time, our role is to consider all the circumstances of the case and reach conclusions on whether the landlord’s actions were fair and reasonable, and in accordance with its policies and procedures.
  4. Therefore, when a resident reports that a member of its staff has fallen short of this minimum standard of behaviour, the landlord should investigate these claims objectively and provide the resident with its findings within a timely manner. In this case, based on the evidence provided, the Ombudsman is satisfied that the landlord acted reasonably in response to the resident’s accusations, and, when failings were identified, it provided adequate redress to satisfactorily resolve the complaint.
  5. First and foremost, the landlord provided the resident with its investigation findings in a timely manner. For example, following the resident’s formal complaint on 21 January 2020, in which he detailed his concerns and put forward his version of events, the landlord obtained a witness statement from the accused member of staff the next day, on 22 January 2020, and also from the senior manager on 24 January 2020, who was also in attendance at the property on 14 January 2020 (although not present during the meeting between the resident and the accused member of staff). Moreover, the landlord obtained a witness statement from another member of staff on 31 January 2020, who was present at the meeting on 14 January 2020, and was a direct witness to the events.
  6. Having obtained the information the landlord provided the stage one complaint response on 3 February 2020, ten working days after the resident raised the complaint; this was a prompt and timely response, as well as in accordance with the landlord’s guide to making a suggestion, comment, compliment or complaint document, which stipulates that a complaint response will be provided within 15 working days.
  7. Furthermore, the landlord subsequently attempted to arrange further dialogue with the resident in correspondence during February and March 2020, demonstrating its willingness to find an amicable solution to the resident’s concerns, as he remained dissatisfied with its response.
  8. Although the conclusions of the 17 March 2020 conference call between the landlord and resident have not been provided, the matter was not raised again for a further six months, when, on 29 September 2020, the resident raised his concerns about the handling of the matter, stating that the complaint about the staff member had yet to be resolved.
  9. Now, it is understandable that because the resident’s letter of 29 September 2020 referenced a number of complaints that he was dissatisfied with, and that the letter was headed with a separate complaint reference, the landlord may not have immediately picked up that this complaint, regarding the conduct of a staff member during a meeting on 14 January 2020, was not fully resolved. It was not apparent that any action was required from the landlord regarding this complaint, other than it requesting further information from the resident, which it did so in its response letter dated 9 October 2020.
  10. Of course, it would have been helpful if the landlord had requested feedback specifically in relation to this complaint, rather than the broader request for further information/evidence. That said, it is clear from the subsequent correspondence between the landlord and the resident that this was solely relating to an entirely separate complaint about staff conduct, and therefore did not prompt a specific response in regard to this complaint, which, in the Ombudsman’s opinion, was not a failing on the landlord’s behalf.
  11. In fact, the evidence provided shows that this particular complaint was not formally re-raised with the landlord until March 2021, when the resident sought advice from this Service regarding his other complaint relating to staff conduct; this culminated in the landlord differentiating between the two staff conduct complaints.
  12. When it was evident that the resident was not satisfied with the landlord’s conclusions to its original investigation back in February 2020, it duly reviewed the findings and provided the resident with a second-stage complaint response on 14 April 2021, as well as a director’s review complaint response on 12 July 2021. This further illustrated the landlord’s willingness to find an amicable solution to the resident’s concerns, using the ICP in the attempt to resolve the complaint satisfactorily.
  13. It is the Ombudsman’s role, in situations such as this, to consider whether the redress offered by the landlord, in respect of its acknowledged failings, 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 offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: be fair, put things right, and learn from outcomes.
  14. In this instance, being as the landlord could not corroborate the resident’s claims of harassment, the apology for the unintentional action of standing over the resident was proportionate in the circumstances, as it recognised the potential distress this action may have caused the resident and it wanted to acknowledge that it was not its intention and nor was this in accordance with what was expected of its staff.
  15. Moreover, in recognition that the correct process was not followed on that day, with the landlord acknowledging that it would have been more appropriate for another member of staff to have approached the resident regarding the allegations, the £100 compensation offered was proportionate for the distress and inconvenience caused.
  16. This offer was in line with the landlord’s compensation policy and guidance because it states that compensation may be appropriate where the landlord has failed to provide a service. In this case, it failed to follow the correct procedure, which caused unnecessary distress and inconvenience to the resident.
  17. The amount of £100 is also at the high end of the landlord’s scale for suggested amounts for medium–impact complaints. It is clearly the case that this was not a low impact complaint, because it was not a single-instance of inconvenience; nor did this constitute a high-impact complaint, as this was not a case of serious or prolonged service failure that resulted in severe distress, disruption, inconvenience or loss of income. As such, the £100 compensation was in line with its compensation policy.
  18. In addition, it is also noted that the incident of standing over the resident, as well as the incorrect procedure being followed, was discussed with the staff members involved and this Service has seen evidence which suggests that internal action was taken at the time, which demonstrated the landlord’s desire to learn from its outcomes, in accordance with the Dispute Resolution Principles, in the attempt to avoid similar situations arising in the future.

Determination

  1. In accordance with paragraph 55 (b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Recommendations

  1. It is recommended that the landlord re-offer the resident the £100 compensation for the identified service failings, if it has not already been paid.