Richmond Housing Partnership Limited (202016229)

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REPORT

COMPLAINT 202016229

Richmond Housing Partnership Limited

31 March 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

The complaints are about the landlord’s:
1. response to concerns that were raised about by the resident about how she had been described within her tenancy file.
2. complaint handling.
3. decision not to remove entries from the resident’s tenancy file.

Jurisdiction

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.
After carefully considering all the evidence, in accordance with paragraph 39(r) of the Housing Ombudsman Scheme, complaint 1c falls outside of the Ombudsman’s jurisdiction. Paragraph 39(r) of the Scheme states – “the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern matters where the complainant is seeking an outcome which is not within the Ombudsman’s authority to provide”.
In response to the complaint that the resident made about the entries within her tenancy file, the landlord advised that the entries would remain, but that they would be concealed so that they were only visible to managerial staff. The resident is unhappy with the landlord’s decision, and would like for the entries to be removed entirely.
While the Ombudsman acknowledges the resident’s dissatisfaction, and her concerns about the information remaining on her file, we do not have the power to order the landlord to remove or amend data from its systems. In its letter dated 8 March 2021, the landlord discussed the resident’s Right to Rectification and Automated individual decision-making including profiling with reference to the General Data Protection Regulations. At the bottom of the letter, the landlord advised that the resident could refer the matter to the Information Commissioner’s Office (ICO) if she did not consider that it had met its obligations under the Data Protection Act 2018. The ICO can consider whether the landlord’s decision not to remove the data was fair in the circumstances.
It therefore follows that the landlord’s decision not to remove the entries in question is a matter that falls outside of our remit. The landlord’s proposed solutions to the issue – namely appending a supplementary statement to the case, and concealing the entries – have also not been assessed as part of this investigation given that they relate closely to its decision not to remove the entries and its handling of data.

Background and summary of events

The resident is a tenant of the landlord’s property. The property is a two-bedroom, semi-detached house.
The resident has informed this Service that prior to this complaint, she had ongoing issues with disrepair within the property. The resident had concerns about the landlord’s handling of the repairs, and also about how landlord staff had treated her. Given her concerns, she made a request for information under the Data Protection Act 2018. When responding to the request, the landlord shared the data relating to a third party with the resident; and the resident also had sight of notes that had been made on her file by staff. The resident said that these notes stated that she was a “tricky” customer and that she was “difficult”.
On 19 February 2021, the resident wrote to the landlord advising that she wished to make a formal complaint. She said:
1. She wished to complain about notes on her file that had been made by staff. Such concerns had been raised during a complaint in 2020; however, she was assured that there were no such comments.
2. She had since learnt that on 23 March 2020, staff were praised following a conversation and the entry read “as you are aware she can be a tricky customer”. The resident referred to the definition of “tricky” as someone who is “likely to deceive”, or “dishonest”. She refuted that she was “tricky”.
3. She had also seen that a member of staff had included “her theories” on her attitude; and that the member of staff had made assumptions about what she believed to have transpired during a repair attendance.
4. On 20 March 2020, there was an entry in her records within which another member of staff had sent an email describing her as a “difficult customer”, and insinuating that she was refusing to co-operate, or provide access.
The resident included screenshots of the entries which she had referred to; and said that she wished to know why she was being profiled by landlord staff. She said that she was allowed to be disappointed given the service she had experienced, and that the matter was affecting her health. She added that she had also received misinformation from staff and this had compounded the issue. However, this should not have allowed staff to profile her.
The landlord Head of Customer Services responded to the resident on 26 February. The landlord has subsequently advised that this was its stage one response to the complaint. Within his correspondence, the Head of Customer Services said:
1. It aimed to respond to all complaints within five working days; and it was sorry that its response had fallen outside of the target timeframe.
2. It accepted that the examples the resident had raised, relating to “subjective opinions” noted in her file could lead to the interpretation that staff use profiling as part of their customer service operating procedures.
3. It wished to confirm that no such profiling was undertaken and wished to apologise for the “intemperate” language that had been used in her notes.
4. It would be using the incident to help staff understand the impact their words had on residents.
The resident replied to the landlord on 27 February to express concern about the response she had received. She said:
1. The person who had responded to her complaint was one of the people she had complained about.
2. She felt that the response had ignored the concerns she had raised and that the member of staff had tried to downplay what had happened.
3. She did not believe that staff should be able to make “subjective opinions” especially when there had been errors and failings in her case.
4. The matter had caused her distress and left her feeling concerned. The response had left her unhappy; and as such, she wished to escalate her complaint.
The landlord subsequently wrote to the resident on 8 March. The landlord referred to the resident’s request for information and continued by explaining its actions with reference to the General Data Protection Regulation (GDPR). It said:
1. A review of the statement showed that while the personal opinions were subjective, when taken out of context they did not amount to “inaccurate personal data”. As such, it would not be applying the resident’s Right to Rectification (Article 19, GDPR) to the statements. However it could “append a short supplementary statement to the case”.
2. Profiling under Article 22 had a “very narrow and technical meaning”. It was unbale to uphold the right to restrict profiling, as it had not taken place.
The landlord said that if the resident felt that it had failed to meet its obligations under the Data Protection Act 2018, she had the right to refer the complaint the ICO. The landlord has since informed the Ombudsman that this letter was its stage two response to the complaint.
The resident subsequently contacted the Ombudsman on 17 March 2021. She advised that she had received a stage one response to her concerns – which she was dissatisfied with; however, she was having difficulty escalating her complaint. She advised that her councillor had also been in touch with the landlord, and it had advised that it would need additional time to respond to her concerns.
On 26 March, the landlord wrote to the resident’s local councillor to advise:
1. It had previously acknowledged the “intemperate language”, and that this should not have been used to describe the resident. However, when reading the statement as a whole, to remove it would distort the recording of communication between the resident and staff.
2. It had offered to include a note on the resident’s file, which would denote her medication of the “difficult” to “challenging”.
3. Neither manual, or automated profiling was undertaken when dealing with housing repair issues/incidents. It was sorry that the resident had interpreted its actions “profiling her”. This was not the case, nor would it be.
4. It was not able to offer any compensation at that point in time as it had not received a reply to its letter of 4 March. However, it could re-evaluate the matter as part of a final resolution, if it was “able to close the matter by 9 April 2021”.
Correspondence was subsequently exchanged between this Service, the resident, the resident’s local councillor and the landlord. On 22 April 2021, the landlord wrote to the councillor and said:
1. It had outlined previously that it would not be prepared to remove the comments that had been left by its customer service. However, it had since arranged for these comments to only be accessible by a “restricted group of senior Housing Services Colleagues and Managers”. This was to reassure the resident that her data was being treated “sensitively and appropriately”. It added that this would have “no impact” on any other day to day contact that the resident had with staff.
2. It wished to clarify that the resident had exhausted the complaints procedure. It wished to apologise if this had not been made clear previously.
3. It noted that the resident had since instructed solicitors to deal with the data breach issue, and it would advise its legal representatives to respond directly with them in relation to that matter.
The resident subsequently informed this Service that she wished for us to investigate her complaint. She said that she had a number of concerns including:
1. The landlord had initially denied that there were any such notes about her on its system. She subsequently learnt that this was not true when she made her request for information. She had raised this with the landlord, but it had not been addressed.
2. The landlord had failed to acknowledge that she had been “lied to” and did not apologise.
3. She was unhappy with the length of time that it had taken for the landlord to investigate and respond to her complaint.
4. She was told that compensation would not be considered as she had not replied to a letter dated 4 March. She had not received any such letter or email.
5. Her complaint about the data breach and the notes on her file were two separate issues, and the landlord had conflated them.
6. She did not consider that her complaint had been handled within the correct time frames – or that the complaint was handled properly.

The landlord’s policies and procedures

The landlord’s Complaints policy states that it has a two-stage complaints process. At stage one, it will “try to fix” what has gone wrong; and will aim to reach an agreement to resolve the complaint within five working days. If it cannot, it will let the resident know why and provide a revised timescale.
If the resident is unhappy with the stage one response, they should tell the landlord the reasons why so that one of its managers can investigate and respond within seven working days. If it is unable to do so, it will let the resident know and provide a revised timescale. If the resident remains unhappy after the stage two response has been issued, the next stage would be for them to approach either a tenant’s champion, their local MP, or to contact the Housing Ombudsman Service.

Assessment and findings

Landlord’s response to the notes within the file

When the landlord initially responded to the resident’s concerns, it acknowledged that the language used was “intemperate”. The landlord also advised that it would be using the incident to help its staff understand the impact their words had on tenants. While this was reasonable, the landlord’s response did not go far enough to acknowledge the distress and concern that had been caused to the resident on seeing the notes within her file. In the circumstances, it would have been reasonable for the landlord to acknowledge how seeing the entries would have left the resident felling, and to apologise for this. Given that the landlord had acknowledged that staff had acted inappropriately, and that their actions had been the cause of distress to the resident, it would have also been appropriate to consider offering the resident a remedy. That the landlord did not take such action was a failing in the circumstances.
In addition, while the landlord alluded to using the incident to improve its service, it would have been reasonable for the landlord to provide more specific detail about the actions that it would be taking in response to the complaint. It is accepted that staff should be able to record their feelings and opinions on how interactions with residents have been. However, the landlord should ensure that staff are made aware – or reminded – of how to record these details appropriately and sensitively. In doing so, staff should be informed that when expressing an opinion about certain behaviour, or an incident, it is made clear within the records that it is their opinion, and not a statement of fact.
It therefore follows that the landlord’s response to the concerns that were raised by the resident was not appropriate in the circumstances. The landlord should therefore take steps now to put things right, and to try to repair its relationship with the resident.

Complaint handling

The resident has raised several concerns about the landlord’s complaint handling, as detailed above. Of particular concern to the resident was that when she first mentioned the notes and comments within her file in 2020, the landlord had advised that no such comments had been made. The resident says that to subsequently see the entries in her file made her believe that she had been lied to previously. In correspondence to the Ombudsman, the resident says that the landlord failed to acknowledge and address this when responding to her complaint.
From the evidence provided to the Ombudsman, it is noted that the landlord did acknowledge this within an email to the resident’s councillor dated 26 March. Within the email, the landlord said that it understood that there were three substantive issues under the complaint including – the resident wanting an explanation as to how previous complaint responses had advised her that there were no such entries on the repairs system.
In response, the landlord said that this “was an error” on its part “which was rectified during the Data Subject Access Request records” that the resident had in her possession. It added that it wished to apologise for the error.
While it was appropriate for the landlord to acknowledge the error, its explanation about what had transpired and why the resident had previously been informed that no such entries existed is not clear. In the circumstances, it would have been appropriate for the landlord to provide a clearer explanation and to detail what information had been reviewed when the previous response had been provided. Or rather, why the entries had not been identified when it had looked into her concerns previously. The landlord’s explanation was not appropriate in the circumstances, and given the vague nature of the response, the resident was left with the impression that this issue had not been addressed during the complaints process.
The resident also raised concerns that the complaint response of 26 February was issued by a member of staff who she had complained about. The landlord failed to respond to this at stage two of the process, which was a missed opportunity to allay one of the resident’s concerns and a failing in the circumstances. While the resident’s concerns about this are noted, it is not inappropriate for a member of staff to deal with a complaint that falls within their service area. However, to ensure fairness in complaint handling, a landlord must be sure that, when escalated, the complaint is reviewed by someone not previously involved. The Ombudsman is satisfied that the complaint was subsequently considered by a different member of staff who could consider the previous response and the complaint objectively.
However, the landlord’s overall handling of the complaint was inappropriate. The Ombudsman’s Complaint Handling Code (the Code) was devised to enable landlords to resolve complaints raised by their residents quickly, and to create a positive complaint handling culture. With regards to communication with residents, the Code states – “at the completion of each stage of the complaints process the landlord should write to the resident advising them of the following:
1. The complaint stage.
2. The outcome of the complaint.
3. The reasons for any decisions made.
4. The details of any remedy offered to put things right.
5. The details of any outstanding actions.
6. Details of how to escalate the matter if dissatisfied”.
When the landlord responded to the complaint at stage one, it did not clearly advise that the email was a stage one response. In addition, as detailed above, while the landlord acknowledged that things had gone wrong, it did not provide details of how it would endeavour to put them right. Furthermore, the landlord failed to include any details of how the resident could escalate the matter if she was dissatisfied.
The landlord issued further complaint correspondence on 8 March. It later advised that this was the stage two response to the complaint; however, this was not detailed within the correspondence. In addition, while the resident was signposted to the ICO, the landlord did not explain that its consideration of the complaint had come to an end and that the resident could also refer the matter to the Ombudsman. The landlord’s communication with the resident within its complaints correspondence was therefore inappropriate.
It is also noted that other correspondence was issued by the landlord between 26 February and 8 March. This led to confusion about the issues which were being considered as part of the complaint, and what the resident could expect. It is noted that the landlord’s letter of 3 March did outline the various issues that had been raised, and whether or not each matter was closed. However, in the circumstances it would have been reasonable to confirm which matters were going to be addressed within its subsequent complaint response given that the process was underway at the time of its letter.
In correspondence to the Ombudsman, the resident raised specific concern that the landlord had failed to respond to her complaint within the relevant timeframes. The landlord’s service standards for responding to complaints are detailed above. When the landlord responded at stage one of the process, it acknowledged that its response had fallen outside of the five working days timeframe. It appropriately apologised for the delay at the time. The resident then asked for her complaint to be escalated on 27 February – a Saturday – and the landlord responded on 8 March, which was within the seven working day timeframe.
However, it is noted that the resident and her local councillor continued to exchange correspondence with the landlord after this, and that the resident was unhappy with the time that it was taking the landlord to respond. It is also noted that the landlord’s correspondence on 8 March did not indicate that it was a stage two response – and as such, the resident was under the impression that this was yet to be received during March and the beginning of April. As such, while the stage two response was issued in line with the landlord’s service standards, the manner in which the outcome of the complaint was communicated was not clear, and led the resident to believe that the landlord had failed to respond to her complaint in a timely manner.
In response to the resident’s request for compensation, the landlord advised at the end of March 2021 that it was not able to offer any compensation as it had not received a reply to its letter of 4 March. This was the cause of further confusion as the resident had not received a letter dated 4 March. It later transpired that the letter was dated 3 March, but was sent to the resident via email on 4 March. Within the letter, the landlord said that it had asked the resident to “categorically confirm” that information which was shared as part of the data breach had not been shared, and that she would destroy it. In addition, it wanted an assurance that the resident would not contact – or cause anybody else to contact – the subject of that data. It said that it had not received any such assurance from the resident at the time of its letter.
The landlord’s actions were not appropriate. Where a resident has been adversely affected by the actions or omissions of their landlord, it would be reasonable for the landlord to take steps to put things rights. This can include an apology, the payment of compensation or taking specific action – such as completing a repair or providing staff training. To suggest that any offer of compensation would be conditional upon the resident providing an assurance in relation to the data breach was inappropriate. While it is noted that the landlord had a duty to ensure that the resident took certain action following the breach, it was inappropriate to refer to this when discussing the issue of compensation in respect of failings in the service it had provided. This was a further failing by the landlord and a missed opportunity to try to put things right.

Determination (decision)

In accordance with paragraph 54 of the Scheme, there was:
1. Maladministration in the landlord’s response to concerns that were raised about by the resident about how she had been described within her tenancy file.
2. Maladministration in the landlord’s complaint handling.

Reasons

The landlord acknowledged that staff had used “intemperate” language when making notes on the resident’s file, and advised that it would be issuing them with a reminder of how to appropriately record information. While this was a reasonable response, it did not fully acknowledge the distress that had been caused to the resident – nor did the landlord seek to put things right. In addition, given the circumstances, it would have been reasonable for the landlord to provide further information about what action it was taking to ensure that something similar did not happen in the future.
The landlord’s handling of the complaint was inappropriate. It did not clearly label the complaint correspondence, which led to confusion about which stage of the process the resident had reached. The landlord also failed to inform the resident of her escalation and referral rights. In addition, the landlord advised that any offer of compensation would be dependent on the resident providing an assurance in relation to the data breach. This was in appropriate and meant that the landlord did not put things right after it had identified failings in the service that it had provided.

Orders

Within four weeks of the date of this decision, the landlord should:
1. Apologise to the resident for the failings that have been identified by this investigation.
2. Pay the resident a total of £450 comprised of:
  1. £200 for the distress and inconvenience caused by the “intemperate” comments within her tenancy file.
  2. £250 for the inconvenience caused by the complaint handling failures identified by this investigation.
Within six weeks of the date of this decision, the landlord should provide a reminder to its staff of how subjective comments should be recorded within repairs records or communication logs. The landlord should provide the resident and the Ombudsman with further information about this once the reminder has been provided.

Recommendations

Within six weeks of the date of this decision, the landlord should share the Code with its staff, and review its Complaints policy in light of the provisions relating to resident communication.