Wealden District Council (202016254)

REPORT

COMPLAINT 202016254

Wealden District Council

29 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 complaint is about:
1. The landlord’s response to the resident’s request about gutter cleaning at his property.
2. The complaint handling.

Background and summary of events

The property is a first floor, one bedroom retirement living flat. The resident is a leaseholder as confirmed by the occupancy agreement (lease). The landlord is the local authority (arms length management organisation ‘ALMO’). The lease commenced in February 2008.

Policies and procedures

The landlord operates a two staged complaint procedure. Stage one complaints are acknowledged within 5 working days and responded to in full within 15 working days. Stage two complaints are responded to within 20 working days. The landlord’s complaint response should include a statement of whether the case is upheld and (if appropriate) details such as an explanation of actions taken and redress.
The lease states that the landlord will keep the guttering in good and substantial repair and condition and renew and amend it “when and as necessary and appropriate”.
The landlord does not have a schedule for gutter clearance. Instead, the property’s gutter is cleared ‘as and when’, such as when there is a repair request.

Resident circumstances

The context of this investigation involves a contact restriction placed on the resident who the landlord considered to be vexatious. The landlord provided copies of its correspondence to the resident from 2016 – 2019 relating to its regular reviews of the resident’s status and its conclusion that the resident remained a vexatious complainant. The resident has remained subject to restrictions on his communication to the landlord. The landlord explained that the resident’s conduct caused ‘significant distress’ and ‘disproportionate level of expenditure’ by the local authority.
The restrictions implemented include the terms that the landlord ‘will not acknowledge receipt of any correspondence from you’ and ‘will respond to any requests in strict order of receipt’ and only spend 30 minutes per month on the resident’s communication. Following an investigation by the Ombudsman in connection to a separate matter, the landlord was advised to inform the resident on those occasions where it declined to progress a formal complaint. This is an active issue which the landlord and resident are still engaged in.
The resident’s communication referenced various issues that he had with the landlord’s complaint process (eg its complaint data, administration and the governance of the procedure). This is not within the scope of this investigation.

Summary of events

On 24 September 2020 the resident emailed the court manager and said that it was usually this time of year that the guttering was cleaned and asked the manager to find out when the landlord was going to have this carried out.
On 30 September 2020 the landlord sent a five paged letter to the resident detailing the status of the resident (as a vexatious complainant), a response on the resident’s separate previously raised queries/reports and confirmation on how it would continue to manage the resident’s communication (as per above). It did not respond to his query regarding when the guttering would be cleaned.
On 5 October 2020 the resident forwarded his email about the guttering (24 September 2020) to the landlord again.
On 14 October 2020 the resident emailed the landlord to highlight that he sent two emails previously about gutter clearing but had not had a response. The resident said that this was his third email about the issue and said that ‘the surface drain outside (the property) appears to be full to the top with leaves’.
On 17 October 2020 the resident wrote a letter of complaint to the landlord about the lack of a response to his communication to the manager about gutter cleaning. The resident stated that he had not had an acknowledgment or response. The resident complained about the ‘differing treatment’ towards him by the landlord in comparison to the experience of other residents who had their reports responded to.
On 21 October 2020 the resident emailed the landlord about a series of different issues including the gutter clearing. He reported that there was a blocked drain and gutter clearing had not been carried out.
On 22 October 2020 the landlord responded with an update on the resident’s queries about separate issues. It told the resident that there had been a knock-on effect (in its service) due to the pandemic, so things were not normal. It said that work was logged through the relevant repair contractors and undertaken within their agreed timeframes. It did not comment on the guttering specifically.
On 30 October 2020 the resident emailed the landlord and asked for timescales for repairs, including gutter cleaning. He said ‘you advised that you had reported this to the relevant department – please now chase up the request and advise when the work will be carried out’.
On 10 November 2020 the landlord acknowledged receipt of a note from the resident. The landlord (court manager) said:

“Concerning your recent e-mails, in line with your vexatious status, I believe that I have the right to refuse to get involved in e-mail exchanges with you; I have previously endeavoured to reply to your enquiries the best I can, due to courtesy, but it would seem that this leads to semantic tennis, inevitably this proves non-productive. You are however entitled to report repairs, and obviously it is only right that if there is a delay to keep you informed”.

On 25 November 2020 the resident contacted the landlord again about his gutter cleaning enquiry.
On 14 December 2020 the resident sent a further chaser to the landlord.
On 16 December 2020 the landlord contacted the resident following the exchange of correspondence from September and October that year.
1. It set out details of the resident’s volume of communication and how it was managing this.
2. It encouraged the resident to have regard to information that it already/ previously provided (when writing to it about the same issue) and detailed the impact of the situation on it (‘wasteful of time and resources’).
3. It provided a response to the guttering issue and said that they were cleaned last month.
4. It asked the resident to refrain from challenging the court manager on the various matters.
On 29 December 2020 the resident told the landlord that the guttering which had been cleared was not related to his property, but to a different one.
On 16 January 2021 the resident contacted the landlord about his concerns again, iterating formerly made points.
On 19 January 2021 the landlord wrote to the resident to acknowledge the complaint (of 14 December 2020) and explain its complaint process, with a guide on the timeframe for its response and explanation of potential delays.
On 28 January 2021 the landlord issued a stage one response.
1. It understood that the complaint was about the resident contacting the landlord on two prior occasions about the court manager and not receiving a response.
2. It highlighted the resident’s circumstances (ie his ‘persistent and vexatious complaint status’).
  1. It said that the resident had been advised that the landlord would ‘no longer acknowledge’ his correspondence and matters he raised would be dealt with ‘in strict order of receipt’ and ‘officers will allocate 30 minutes per month to deal with your enquiries’.
  2. It explained the reason for such restrictions, which was to ‘mitigate the level of disruption experienced by officers in dealing with your communications’.
  3. It explained that the officers had assessed the resident’s letter and took into account the contact restriction and whether the resident had previously raised the subject and any outcomes of any investigations. It confirmed that it would consider the complaint.
3. It said that the resident’s letter dated 14 December 2020 was received on 11 January 2020. It said that the resident had already responded to its communication of 16 December 2020 (that dealt with the resident’s letters of 3 and 30 November 2020).
4. Following the above exchange of correspondence, it confirmed that its court manager had limited his contact with the resident and explained the reason why.
5. It apologised for not explaining this to the resident before. (The reason it gave was because the resident refused to accept what was said, and there was a persistent challenging and a confrontational tone from the resident).
6. It said that it had made clear that the gutters were cleaned in November 2020.
7. The resident’s communication which had been addressed as ‘complaint’ were only responded to if it was agreed that they were complaints. Following an Ombudsman investigation of January 2021, the landlord said that it adjusted its approach and would notify the resident if his complaints were not being treated as such.
8. It explained “had the Housing Ombudsman’s determination been known some months earlier, clearly your complaints would have been dealt with differently and so your dissatisfaction may have been assuaged. It would seem reasonable, therefore, to uphold this element of your complaint”.
9. It said that the resident’s complaint (which it said that it received on 3 November 2020) should have been recorded as a complaint or he should have been advised if it was not, so, it upheld this complaint.
In February 2021 the resident sent the landlord further correspondence. This was about the resident’s dissatisfaction with the complaint handling and the guttering issue. The resident said that the landlord had not acted in line with its policy as it did not respond to his complaint within 5 working days (to provide relevant details), it did not explain its response to the gutter complaint, it did not offer a remedy and the landlord could not refuse to accept his complaints. The resident also pointed out that he complained on 17 October 2020, rather than when the landlord had calculated this (December and November 2020). In respect of the gutter clearing on his block, he reported that this had not been carried out.
On 24 February 2021 the landlord acknowledged the stage two request and provided some information on its escalation process and the expected timescale for response (11 March 2021).
On 24 March 2021 the landlord issued its stage two (final) response.
1. It acknowledged that the stage one response failed to advise on whether gutter cleaning had been carried out at the resident’s property. It upheld the complaint.
2. It said that the bungalow gutters were not cleared as this was the leaseholder’s responsibility. It confirmed that the flats in the area do not have scheduled guttering clearance and also said that these had not been cleared in the past two years.
The resident contacted the Ombudsman to escalate his complaint. He said:
1. The landlord’s response was unclear on whether it was saying that the gutters were not scheduled to be cleaned despite not being cleaned for 2 years.
2. The complaint response had not complied with the landlord’s complaint policy.

Assessment and findings

The Ombudsman’s investigation has considered what was reasonable and appropriate in all the circumstances of the case. The evidence shows that the communication between the resident and landlord has been challenging for the landlord and the landlord has referenced the large amounts of information and reports exchanged.

Gutter cleaning

The lease states that the landlord will keep the gutters in good repair and condition and will renew, amend and clean the gutters “when and as necessary and appropriate”. The landlord is not obliged to have regular scheduled gutter cleaning/clearing; however, it is responsible for responding to any reports of disrepair (eg leaks, breakages or blockages).
The landlord responded generally following the resident’s queries and managed the resident’s expectations about delays to its service due to the pandemic. It then said that the guttering had been cleared, but this was in respect of a different area. The landlord did not respond to the resident’s reports about the possible repair issues in the final response. Had there been a repair, then the landlord would be obliged to address this as per the terms of the lease. It would have been reasonable for the landlord to investigate the resident’s reports with its court manager to identify if there were any repair issues with the guttering. The landlord only confirmed its general position in respect of the guttering (March 2021). This was not reasonable.
Though the landlord upheld the complaint this was considered to be due to its omission in responding to the issue at stage one, and it did not comment on or investigate the potential repair.

Complaint handling

The landlord acknowledged a service failure and upheld the complaint due to its previous omissions and due to not logging the complaint which it said that it received in November 2020. The resident complained on 17 October 2020 and this was acknowledged on 19 January 2021. The landlord confirmed that it was accepting the resident’s complaint, however, it did not calculate the correct date for when he first raised this. There was an unreasonable delay by the landlord in logging the resident’s complaint.
Once logged (19 January 2021), the stage one response was issued on 28 January 2021 which was reasonable as it was within 10 working days. The response was later considered to be inadequate by the landlord due to its omission of the resident’s key issue, so the landlord upheld the complaint about its complaint handling. However, it did not address the entirety of its service failure. There has been an additional delay in issuing the stage two response. This was logged on 24 February 2021 and issued on 24 March 2021. This was not in line with the appropriate timescale. The landlord did not offer the resident redress for any of its identified service failures.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in respect of the landlord’s response to his request for gutter cleaning at his property.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in respect of the complaint handling.

Reasons

The landlord acknowledged a failure to address the guttering in its complaint response but it did not acknowledge the possible repair issue. Although the landlord is not obliged to provide scheduled gutter clearance, it remains responsible for responding to reports of repairs. It did not evidence an acknowledgement of or investigation into the resident’s reports.
The landlord acknowledged a failure and upheld the complaint about its complaint handling, as it said that it should have logged the resident’s complaint when he raised it. The landlord did not identify the entirety of its service failure in the complaint handling, such as the delay in issuing the stage two response, nor did it offer redress.

Orders and recommendations

Within four weeks of the date of this report, the landlord is ordered to:
1. Pay the resident £50 for inconvenience in respect of the response to the guttering repair.
2. Pay the resident £50 for inconvenience in respect of the complaint handling failure.
3. Check if there are any outstanding repairs to the guttering.