Chesterfield Borough Council (202109856)

REPORT

COMPLAINT 202109856

Chesterfield Borough Council

9 August 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 was about:
1. The landlord’s response to the resident’s reports of anti-social behaviour (ASB) including the request for a management move.
2. The landlord’s decision to send the resident a warning letter.
3. The landlord’s complaint handling.

Background and summary of events

The resident was a secure tenant of the landlord, a local authority. She occupied her property under a secure tenancy which began on 11 March 2002, with her family and partner, who had health issues. The resident’s reports of ASB concerned her neighbours who were the tenants of a private landlord. They will be referred to as N, or as N1 and N2 when acting individually.

The legal and policy framework

Under the tenancy agreement, the resident was prohibited from using abusive words or behaviour to any employee of the landlord and from using the property for illegal or immoral purposes.
While the local authority did not have a landlord and tenant relationship with the neighbour or their landlord, the local authority had a number of powers for dealing with ASB.
Its ASB policy stated as follows:
1. It based its interventions, investigations, and action upon evidence. It would not consider taking enforcement action unless there was evidence to show that it was more likely than not that there had been anti-social behaviour. Its website stated that, in many cases, problems and disputes could be resolved through discussion with those involved. If a problem could not be resolved, there was a range of legal remedies it could consider for serious and persistent cases of anti-social behaviour. Its actions included deciding on any risk to the resident and explaining to the resident what action it could take.
2. It did not tolerate the abuse of council employees, elected councillors and people working for the council as agents or contractors. Abuse included abusive or threatening words or behaviour. It would take legal action where appropriate against any person who engaged in such abuse.
3. The local authority had a range of powers and responsibilities in dealing with anti-social behaviour, including: powers to deal with anti-social, disorderly, offensive, and criminal behaviour on residential accommodation and other premises, and it could apply those powers where the housing–related nuisance was directly related to its housing management function. According to its guidance, this could include serving an acceptable behaviour contract, a community protection warning and issuing an injunction where the court orders a person not to act in a certain way. It also had a range of powers and responsibilities to deal with environmental ASB (such as noise).
Moves were normally dealt with by the housing register or by the resident applying for an exchange with another social housing tenant. Decisions about the housing register comes within the jurisdiction of the Local Government and Social Services Ombudsman. The resident has informed this service that the Local Government and Social Services Ombudsman has investigated that aspect of her complaint. While the resident could apply to exchange properties, this would be for the resident to make such an application.
On occasions, a local authority landlord can also consider a move outside its housing register as a “management move”. The landlord did not have a management transfer policy. The landlord has explained to the Ombudsman that management moves were considered where a tenant was at serious risk of harm if they did not move, e.g. the police or social services were advocating for a move on safeguarding grounds and where housing remedies were unlikely to succeed. The criteria it would apply would be that of a homelessness duty.
In the circumstances, this report will consider the landlord’s response to the resident’s request for a management move.
The complaints procedure consisted of a three-stage process. The response timescale for each stage was 15 working days.

Chronology

On 30 August 2019, the resident reported to the police that N2 had smashed paving slabs and was causing noise nuisance. The police closed the case as a civil dispute. The local authority’s Environmental Team also logged a noise complaint on the same day.
On 2 December 2019, the resident reported to the landlord that N2 pulled out in front of her disabled partner and tried to make her partner crash into him by stopping. He then got out of the car and took her partner’s keys and threw them across the road and shouted that her partner was drunk.
On 11 or 12 December 2019, the resident met with the landlord to discuss her reports of ASB about her neighbour as follows:
1. She provided the landlord with a calendar dating from 8 April 2019 to the then date. The calendar indicated the reports consisted of noise from the neighbour’s dog and baby and did not appear to be regular or frequent. The landlord noted that the record denoted some noise disturbance, but it was unlikely to be at a level that would warrant intervention or would give a resident a well-founded fear of violence, harassment, threats or intimidation.
2. The resident reported that she had been experiencing ASB from N for the last six years. The resident admitted that her partner smoked cannabis, for medicinal reasons. The resident did not want the landlord to open a ASB case because she was concerned about repercussions but she wanted the landlord to contact N’s landlord as she wanted him to evict them.
3. The resident signed a document dated 12 December 2019 entitled “ASB initial report and investigation contract” stating the resident “wants the private landlord contacting”. It was agreed that the landlord should liaise with the police and contact other specified neighbours.
The resident made some further noise reports on 9 January 2020.
On 13 January 2020, the landlord wrote to N’s landlord reporting that there has been an allegation that N had been involved in playing loud music, blocking the resident’s driveway, and causing harassment, alarm and distress to the resident. It stated that even though the landlord was not a tenant of the landlord, as a local authority, it had the legal powers to investigate reports of ASB and take other (unspecified) steps.
The following day, according to the landlord’s internal note, the landlord wrote to both the neighbours specified by the resident. The Ombudsman has seen one of the letters, which invited the neighbour to report ASB. According to the note, one of the neighbours had contacted the landlord to say they did not want to get involved.
On an unspecified date, but prior to 27 January 2020, the landlord erected a fence between the properties, according to the landlord’s records, in order to avoid potential flashpoints between the resident and N.
On 27 January 2020, the landlord met with N’s landlord. According to the landlord’s note, he stated that the resident used to contact him when N was playing the loud music. He would intervene but did not consider reports such as noise, including children making noise, and flushing the toilet to be ASB. He stopped taking the resident’s calls due to their frequency and on occasions, times. The landlord put the allegations to N’s landlord. He gave his tenants’ version of events and had not considered they were in breach of their tenancy. One factor was that N2 had lost the use of one arm and therefore doubted he could have thrown a paving slab into the middle of the road.
On the same day, according to the landlord’s note (it was not entirely clear whether it was contemporaneous) the landlord informed the resident of the conversation with N’s landlord. The resident expressed anger that the landlord appeared to believe N’s landlord and stated that the landlord had deliberately arranged the meeting without her present. The landlord referred to the signed “contract”. It explained that it considered that would not have been “a good idea “for the resident to meet with the landlord as she came across as being “very aggressive and intimidating”. The note also stated it did not think N’s landlord would attend a further meeting with the resident present and it had no powers to make him do so. The landlord reported to her that it had written to the neighbours as agreed and one of them had not wanted to get involved. The note also referred to the resident being “argumentative”, shouting so that the officer had to hold her phone away from her, and had used swear words. According to the landlord’s records, the officer reported that she was upset and the landlord suggested she go home as a result.
The landlord wrote to the resident on 4 March 2020 as follows:
1. It referred to the meeting on 11 December 2019 when she confirmed that her partner smoked cannabis for medicinal reasons.
2. It also referred to the telephone call of 27 January 2020 and stated that the resident was “aggressive and threatening” during the phone conversation and used swear words.
3. The landlord was satisfied that the resident had breached terms of the tenancy agreement that the resident had signed on 11 March 2002. It cited the relevant terms of the tenancy.
4. The resident should ensure that she stopped using cannabis in her home. If the landlord did not receive any further reports, it would not pursue any further action against her, but if it received reports that were found to be true, the landlord had the power to take legal action against her which might have put her at risk of losing her home. It invited the resident to contact it if she needed support to manage her tenancy.
According to the internal records, the letter was sent under the instruction of the officer’s manager who was added to it and signed it.
On 17 March 2020, the landlord wrote to the resident that it had not received any reports “since 11 December 2019”, therefore it assumed the issues had ceased, so it was closing the case if it did not hear back within a week.
On 18 May 2020, according to the landlord’s records, the resident reported N2 was “smashing the trailer against the fence, making gas bottles into log burners in the back yard and was pouring the gas into the main sewage drain”. She also understood that N also intended to take down her hedge.
The landlord discussed the matter in email correspondence in mid-June 2020 with N’s landlord. He said that N2 was selling log burners but were manufactured in a different place.
On 7 or 14 July 2020, according to the landlord’s records, the resident reported that N2 had cut her boundary hedge on her side of the garden. The hedge cutters had damaged her vegetables. She provided photographic evidence. She also reported previous issue with the noise, including their dog barking, chimes, running a bouncy castle business from their back garden, too many visitors, and N leaving windows open. She reported an issue with a councillor who had said she would put her tenancy at risk if she complained about a staff member. She also alleged that N1 urinated on her but had not reported this due to the warning letter regarding her partner who smoked cannabis for medicinal reasons. The resident stated she did not want a call back. The resident did not want the landlord to contact N. The landlord stated that it could not investigate the matter without doing so.
The landlord attended the property on 15 July 2020 and considered that N had cut the resident’s hedge so that it was damaged but not severely so. It also noted there was CCTV aimed at the resident’s property.
The landlord wrote to the resident on 7 September 2020 to say that it had inspected the hedge and reviewed its records. In order to investigate and reach a fair conclusion, it would need to speak to the neighbours to put the resident’s allegations to them but she had declined to agree to this. The resident had also reported to the Environmental Protection Team who would also have to contact the neighbours in order to investigate. The landlord had a responsibility to be impartial in dealing with complaints, which including listening to both sides.
On 24 September 2020, the resident reported that the neighbour had sprayed weedkiller on her vegetable patch. The landlord arranged to inspect the garden.
The resident reported the garden incident to the police who did not identify any evidence that N2 was the offender.
The landlord met with the resident on 30 September 2020 who was accompanied by a friend for support. She described how she had harvested her vegetables after which the vegetables started to die. She provided photographic evidence. It accepted the plants had been poisoned. The officer told the resident that said she had not gone home sick but because she was upset after her conversation on 27 January 2020. The resident’s friend said she understood that the resident often said and asked for things “in the wrong manner” and this came across “wrong” and suggested that the landlord officer should be more resilient.
On 6 October 2020, the landlord supported the resident’s move by recommending additional points to her housing application.
The resident requested a management move on 9 October 2020.
Around this time, this investigation understands that the resident complained to the landlord, after which it wrote to her twice, including on 23 October 2020, setting out the complaint as it saw it and asked the resident to comment and asking the resident for clarification.
In the meantime, it made enquiries internally about the issues the resident raised.
The landlord wrote on 17 November 2020 with its first stage response to the resident’s complaint. It set out the resident’s complaint in the same terms it had summarised in its letter of 23 October 2020, as follows:
1. In relation to her complaint that the housing officers and a councillor had discussed her case inappropriately and had tried to stop her from complaining by threatening her tenancy: The Councillor had rung another officer of the landlord after the resident contacted him following the telephone conversation of 27 January 2020. That officer (a team leader) had overheard the conversation which she relayed to the councillor, describing the resident’s tone as “aggressive” and that the conversation had upset the housing officer. This resulted in the warning letter of 4 March 2020, given the landlord’s policy of not tolerating verbal aggression towards its staff. It accepted that there was a delay in this being written and it would have been better to have been sent straight away. This letter did not prevent her from using the landlord’s complaints procedure.
2. In relation to the complaint that she had been slandered by being called aggressive and belligerent: It had not found any record of the resident being called belligerent. It understood “slander” to be a false spoken comment harming a person’s reputation. The breach of tenancy warning letter warned her about aggressive behaviour and swearing on the phone. It was not therefore false. He invited the resident to provide any further information.
3. In relation to her complaint that she was given a breach of tenancy warning letter regarding her partner smoking cannabis in the house for medicinal purposes as she had volunteered this information and that the warning was given three months after the admission and was used as a threat to put her off from making a complaint: Herbal cannabis was an illegal drug and its use in her home was a breach of tenancy, irrespective of the purpose for which it is used. It could also cause a nuisance to neighbours because of its smell. As this was the only breach of tenancy, it had decided not to warn her at the time but only after the incident on 27 January 2020. It was reasonable to include previous breaches of tenancy. The warning was given because she had breached her tenancy and not to put her off complaining about council. It reassured her that The warning would not stop her from being rehoused.
4. In relation to her complaint that the same housing officer should not be investigating her current complaint as the resident was not happy with the way she dealt with her the first time: It was for the landlord to decide who managed her tenancy, It would not change officers without “very good reason”. The report of July 2020 had not been resolved as it could not deal with her concerns without giving her neighbours the opportunity to respond to her allegations.
5. It apologised that the housing officer who visited her with her housing officer was not wearing a name badge and only gave his first name. It explained that he was new in post and the badge had not been ready. It would remind him that he should give his full name when visiting tenants.
On 2 December 2020, the resident requested escalation of her complaint and on 16 December 2020 provided more details as follows:
1. She did not know the identity of the person who had called her aggressive and belligerent. She had informed the landlord that she had discussed her reports with the councillor as she felt that her neighbour dispute had not been taken seriously. She referred to her neighbour threatening to kill her. She also stated that it was the councillor who called her belligerent and aggressive.
2. She doubted that another officer had overhead the conversation on 27 January 2020. She doubted the landlord’s motives for issuing a warning. She doubted that the officer was in fact intimidated which she felt was evidenced by the fact she attended with an officer who was new to the job. She also felt that the officer had contradicted herself as to the events following the telephone conversation of 27 January 2020.
3. She considered that the housing officer should not investigate the complaint about the warning letter on the basis any decision would be deemed to be biased.
4. She considered that the fact she was not given higher priority on the housing register was evidence that the warning went against her.
5. In the meantime, her neighbour had continued to harass her, there had been several calls to the police, Victim Support had been involved and she had continued to collect evidence as requested a year ago. The landlord had not requested the evidence. She felt let down.
The landlord replied the same day and stated that its response would be due on 12 January 2021.
According to the landlord’s internal notes, it considered that the ASB she had reported had been “too low–level” to merit a move and would not justify it moving her without trying to resolve the situation with her neighbours. It had reopened her ASB case in July 2020.
On 13 January 2021, the landlord wrote to the resident with its second stage complaint response as follows:
1. It referred the resident to the process of making a complaint about a councillor.
2. It confirmed that another officer did overhear the telephone conversation of 27 January 2020 in an open–plan office. It had no reason to believe that the officer’s account was inaccurate or misleading. As the councillor had contacted the landlord following the resident’s contact, it was reasonable for the landlord to provide an account. The landlord did not consider “this” to be slanderous or that the intention was to prevent a complaint. It referred to the terms of its ASB policy.
3. There was no need to carry out a detailed investigation before issuing a warning. It only needed to be probable that a term of the tenancy agreement had been broken (i.e. a “breach”). A breach witnessed by an officer was enough to issue a warning. A warning is not a legal measure. Its purpose is to reduce the possibility of a further breach of the tenancy agreement and thereby to protect the tenancy.
4. It considered that when considering issuing a warning, other recent breaches may also be considered because they may be included in legal action if this needed to be taken. In general, breaches within the previous six months were considered to be recent by a court, depending on the circumstances. The use of herbal cannabis in the home was a breach and could therefore be included in a warning. It may not be necessary to issue a formal warning following a single breach, but it is reasonable to include this in a warning when the tenancy agreement was then broken for a different reason within the following six months or so.
5. It had “sympathy” with her complaint that the same officer should not have issued the warning. It would not have been issued had she been the only witness but it had been witnessed by a senior officer and the cannabis use was not disputed. The manager authorised the warning and she was right to have issued it.
6. It confirmed that the warning has not affected her banding.
7. Where a member of staff had felt that someone had been abusive or intimidating, and that officer was happy to continue as housing officer, he or she may do so. Where there was a risk of abusive behaviour towards staff, it was its standard practice to carry out home visits in pairs. It could not discuss whether a member of staff was off sick. It considered it was better to allocate a different housing officer.
8. The landlord had made enquiries with N’s landlord following her reports of 18 May 2020. It apologised that it had not reported the outcome or responded until July after she had made a further report. It was not intentional. It had noted the report about a boundary hedge being over-cut and that her neighbour had urinated through the fence but this could not be investigated as the resident did not want the landlord to contact N. The other teams could not pursue reports of ASB and noise nuisance for the same reasons. The landlord followed up the resident’s report of 24 September 2020 but again, the resident did not want the landlord to contact N. In the circumstances, the landlord had taken reasonable steps to inform her it required her permission to contact N. On that basis, it did not agree it did not request evidence or explain the need for evidence.
9. It was concerned to hear harassment continued and invited her to provide reports and it would reassess whether contact with her neighbour would be needed to continue with an investigation.
According to internal email correspondence in January 2021, the resident sent to the landlord photos and reported loud bass music and children screaming. It noted that, as the landlord could not contact the resident, all the landlord could do was to log the reports. The photos indicated that a “very bright light” was directed at the back of the resident’s property.
The resident continued to make further reports through January and early February 2021 of noise including of children and domestic appliances, N2 leaving a jump lead on the ground, and N2 hitting her fence with the trailer. The neighbour considered that the landlord installing a fence was evidence it considered there was serious ASB. The landlord responded from time to time explaining that it could not investigate without her permission to contact the neighbours.
The landlord discussed the complaint with the resident on 15 January 2021 following which the landlord investigated the complaint and conducted a number of internal interviews.
On 20 January 2021, she requested that the landlord escalate her complaint to stage 3 on the basis that she felt she had been slandered and being referred to as aggressive was a source of pain, that she was withheld evidence and felt it had made its decision before speaking to her. On 29 January 2021, she provided her reasons for escalation including that the officer had “lied” about the events of 27 January 2020, complaints that she had already made, she did not feel listened to, and some fresh complaints.
On 5 February 2021, the landlord wrote to the resident following his call of 15 January 2021. It could not take steps in relation to the ASB but it could review the priority status on the housing register. It had informed the resident that the officer had approached N’s landlord without her being present because N’s landlord did not want a discussion with her. It had clarified this, and understood that a conversation between the parties was unlikely to have helped resolve the problem. The officer also deemed that as a result of her conversation with the landlord, she had concluded that he would not have attended a discussion with her and that she informed the resident that that was the case.
The landlord provided its third stage response on 22 March 2021 as follows:
1. It had undertaken a thorough review of all its records and correspondence with the relevant teams in relation to the landlord’s response to the resident’s reports of issues with N. It said that the reports were relatively minor and could be resolved through mediation and compromise however her expectation appear to be that it would be in a position to take legal action without contact or investigation. The landlord had followed its policies and procedures but had been prevented from implementing low–level mediation and resolution of her neighbour disputes due to her lack of willingness to engage in the processes. If she was willing to enable staff to engage in a proportionate and mediated approach, it would be happy to do so.
2. In relation to her request for a management move, there was insufficient evidence for her to be eligible for a management move as the ASB had not been fully addressed due to lack of engagement. However, the Band uplift had been applied as a recognition of her concerns regarding ASB and overcrowding. It explained there was a high demand for properties.
3. It had addressed her concerns regarding individual staff members in her previous complaint responses. It had taken remedial action to ensure clarity of roles within the team and the separation of decision-making and review.

Assessment and findings

The landlord’s response to the resident’s reports of anti-social behaviour (ASB) including the request for a management move.

The Ombudsman recognises the distress and concern experienced by the resident. However, the role of the Ombudsman is not to determine whether ASB took place, but to consider whether a landlord’s responses to its resident’s reports were in line with the landlord’s legal obligations, policies, and good practice. This includes considering whether a landlord’s actions were appropriate and reasonable, as well as proportionate to the issues being reported, and that it took all the circumstances into account.
Any action by the landlord that related to a private tenant or a person who was not the tenant of the landlord would be outside its function of housing management and therefore outside the jurisdiction of the Housing Ombudsman, and would fall within the jurisdiction of the LGSSO. However, the Housing Ombudsman would expect local authority teams not to act in isolation of each other, and for the housing management to take what action it could. In those circumstances, as the landlord appeared to accept this, given its own actions, there was an overlap of responsibilities.
The landlord acted reasonably in arranging a face-to-face meeting with the resident to discuss her reports. There was no dispute, and the evidence was clear in that regard, that the resident wanted the landlord to contact N’s landlord about the allegations. It appears she felt that was the most pragmatic approach in the circumstances on the basis that the N’s landlord may have taken a business approach and evicted troublesome tenants. What was less clear, was whether the resident had stipulated, and the landlord had committed to, such a meeting to only take place with the resident present.
There was also a lack of clarity of the reason why the landlord contacted N’s landlord without the resident, or indeed whether it was a question the landlord felt it had to consider. The evidence indicated that the landlord considered such a meeting might be counterproductive and, if later, that N’s landlord would not have met with the resident in any event. The lack of clarify demonstrates the importance of good record keeping. The “contract” the resident had signed was very helpful to the landlord’s analysis of the events. It was not clear to the Ombudsman whether the landlord’s notes of its conversations were contemporaneous. While the Ombudsman appreciates that it may be impractical to keep a detailed record of every contact with a resident and of every decision it makes, it should ensure that it keeps, as far as practical, a clear record of its conversations and decisions.
The Ombudsman’s role is not to determine what occurred but whether the landlord acted reasonably in the circumstances, and if it did not do so, to consider any impact on the resident. The evidence showed that the landlord went to some lengths to try and identify what was agreed between the landlord and resident and what was the landlord’s thought process in arranging the meeting. While there was some lack of clarity, and the issue was relevant as to the feelings of trust that the resident had in the landlord, there was no evidence that the landlord misled the resident. Given the evidence before the landlord, it was not unreasonable of the landlord to meet with N’s landlord and, in any event, there was no evidence that it exacerbated the neighbour dispute, given the resident made no further reports until May 2020.
It was reasonable of the landlord to respond to the resident’s reports of ASB, but given the resident’s response to the previous contact with N’s landlord, it was not reasonable that the landlord contacted N’s landlord in May 2020, without first checking with the resident, or not to have reported the outcome, as the landlord itself acknowledged. However, it was not clear whether it was the contact with the landlord the resident objected to or that she was excluded from the meeting. The landlord would have been right to have been concerned that there was a health and safety issue in relation to the gas canisters. In any event, again, there was no evidence of a significant adverse impact on the resident by the landlord’s action or that it increased any risk to the resident.
The landlord acted reasonably in attending the property to inspect the hedge and the vegetable patch, following the resident’s reports of May 2020 and July 2020. The landlord accepted that it had physical evidence of damage to her garden in both instances and it also had concerns about where N’s CCTV was pointing. While it did not have conclusive evidence of who was responsible for the damage to the resident’s garden, the Ombudsman would have expected the landlord to consider taking steps in response to the resident’s reports. However, without being able to contact the neighbours, there was little or nothing it could do in the circumstances. It could not raise the matters with N or write warning letters. It was reasonable of the landlord to consider that it could not take legal action against N without giving the opportunity to N to put its case to the landlord, as litigation should be a final and not a first resort. Moreover, it could have constituted an unlawful breach of natural justice not to provide an opportunity to the other party to hear their side of the story beforehand. It could have considered whether to contact N in relation to the CCTV without involving the resident, but this was borderline.
The resident’s focus was on wanting the landlord to believe her on the basis of her reports, without the need of an investigation so as to grant her a management move and/or to grant her a higher band on the housing register.
In relation to a management move, the landlord supported her in its housing management function by recommending further points on the housing register. Otherwise, the landlord’s explanation of not offering a management was reasonable that a) the landlord would have had to have attempted to have resolved the neighbour dispute first and was unable to do so due and b) the landlord considered the reports to be “low-level”.
While the landlord explained its criteria for a management move, the landlord did not have a written management policy. While the criteria in themselves were, in the opinion of the Ombudsman, reasonable, not having a written policy is not satisfactory, as it lacks transparency and may raise doubts of consistency. The Ombudsman will make a recommendation in that regard.
There was no evidence that the landlord ever put to the resident that it considered the reports to be “low-level” until its final complaint response. If that was the case, that was a failing on the landlord’s behalf. The reports themselves were mixed in nature. The Ombudsman does not consider erecting the fence to be evidence that it considered the resident was at risk. The landlord decision to do so was a reasonable steps in managing the neighbour dispute. While there was no evidence of a report that N had made threats to kill, an allegation of urinating on a person was serious, if historical. The principal difficulty in terms of taking steps against N was that the landlord was unable to pursue the matter with N. In any event, in the opinion of the Ombudsman, it was reasonable of the landlord to conclude that the reports did not attain the threshold it had described for a management move.
The landlord’s overall response to the resident’s reports was in line with its policy. It made enquiries of N’s landlord, it made enquiries of the resident’s other neighbours, it inspected the resident’s garden, it was reasonable to close the case having not received further reports and to have re-opened it on receipt of fresh reports. However, in the circumstances, there were no further steps the landlord could have taken in tackling the ASB on any level without contacting N as they all involved interactions with the N. In any event, the evidence showed that the focus for the resident was to move rather than for the landlord to take action against N.

The landlord’s decision to send the resident a warning letter.

The landlord’s explanation why it had sent a warning letter to the resident about smoking cannabis and the resident’s behaviour was reasonable. While it is understandable that the resident felt “punished” for her honesty, and that her partner used cannabis for medicinal purposes, cannabis use in the property is unlawful as well as a breach of tenancy. It is reasonable for a social landlord not to tolerate behaviour that constitutes an offence. Its explanation that it chose to overlook a single breach but was entitled to refer to it in the later letter was reasonable. It would have been reasonable of the landlord to have explained to the resident that such behaviour was unlawful in any event, and there was no evidence that it did so, prior to the warning letter.
It is not the Ombudsman’s role to determine whether the resident was “aggressive”, but whether the landlord acted reasonably and appropriately in the circumstances.
The discussion between the landlord and resident focused on whether the housing officer went home sick, upset, or for any reason at all connected to the telephone conversation. There was some confusion as to the landlord’s explanation, which again did not assist the resident’s trust. However, the real central issue was whether the resident’s conduct constituted a breach of her tenancy agreement or could be deemed to be unacceptable behaviour. There was no evidence to suggest that a conversation in an open-plan office was not overheard or that the incident was an invention. While she was not a witness, the resident’s friend, acknowledged that the resident’s approach could be “wrong”. The landlord noted that the resident swore. While, again, a contemporaneous, more detailed note of the conversation would have been helpful, the landlord was entitled to make a judgment that the resident was abusive to a member of its staff. While the resident was clearly upset and she described herself as frustrated, the landlord is entitled not to tolerate certain behaviours, regardless of the housing officer’s response.
While the warning letter was approved by a manager, it was not appropriate of the landlord for the officer herself to send the warning letter as this gave the impression of bias and a lack of objectivity. However, the landlord explanation of its approach was reasonable. It also acknowledged that the officer should not have sent the letter and the landlord apologised. It also committed to ensuring this did not occur again. It also acknowledged its delay in sending the letter.
While it was upsetting for the resident to be referred to as “aggressive” and to receive a tenancy warning, the letter constituted a warning about the resident’s behaviour rather than a notice seeking possession. There was no evidence that the letter was a ploy to prevent the resident from making reports or a complaint. There was no contradiction with the landlord’s stance that it did not need an elaborate investigation to send a warning letter as the landlord had direct experience of the breaches. In the Ombudsman’s view, it was a proportionate approach to the breaches the landlord was addressing.

The landlord’s complaint handling:

There was no evidence that the landlord prevented the resident from complaining or did not give her an opportunity to put her case. The evidence showed that while the resident did not make a written complaint, the landlord reflected back its summary of their telephone conversation and invited the resident to comment. It also engaged in telephone discussions with the resident about the complaint and requested clarification. There was no evidence that the landlord did not take into account the resident’s side of events. The landlord was right to refer the complaint about the councillor to another body.
While the first two responses were sent within or very shortly after the timescales, the third stage response was some 5 weeks over the landlord’s own target. However, the investigation was also very thorough, the landlord provided an interim response on 5 February 2021 which addressed the resident’s substantive issues. It also changed housing officer. In the circumstances, the Ombudsman did not find that the delay had a very significant impact on the resident, given that the delay was outweighed and mitigated by the time spent on the investigation and its interim response.
It is noted that the landlord has amended its response timescales in its current complaint policy, but has retained a three-stage complaint procedure. This makes the process somewhat lengthy. The landlord is referred to the Ombudsman’s complaint handling code and the Ombudsman will make a recommendation in that regard.

Determination (decision)

In accordance with Paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s response to the resident’s reports of anti-social behaviour (ASB) including a management move.
In accordance with Paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s response to the landlord’s decision to send the resident a warning letter.
In accordance with Paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s response to the landlord’s complaint handling.

Reasons

The landlord responded promptly and reasonably to the resident’s reports but having taken what steps it could, it was unable to take any further action as the resident declined to give permission to the landlord to contact her neighbours. In any event, the focus for the resident was to move properties.
The landlord was entitled to conclude there was evidence that the resident had breached her tenancy. A warning letter was a proportionate and reasonable approach to address the matter.
The evidence showed that, while there was a short delay to the third complaint response, the landlord had investigated the complaint and showed a willingness to accept fault.

Orders and recommendations

The landlord should consider adopting a written policy regarding a management move.
The landlord should ensure, as far as practical, proportionate and reasonable, that it keeps a clear and contemporaneous record of its conversations and decisions, in particular where they may lead to further action by the landlord.
The landlord should consider adopting a two-stage complaint procedure and is referred to the Ombudsman’s complaint handling code. Complaint Handling Code – Housing Ombudsman (housing-ombudsman.org.uk)