Optivo (202106387)

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REPORT

COMPLAINT 202106387

Optivo

11 January 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 the landlord’s handling of:

  • The resident’s reports of anti-social behaviour (ASB) and excessive noise from a neighbour.
  • The associated formal complaint.

Background and summary of events

Background

  1. The resident was an assured tenant of the landlord until 26 May 2021 and lived in a block of flats.

Summary of Events

  1. The resident had been reporting ASB from one of his neighbours to the landlord since 21 December 2018. Following a visit to the landlord’s offices on 3 January 2019, the landlord offered to open a formal ASB case. The resident declined the offer because he was worried about possible repercussions.
  2. The Ombudsman has not seen evidence of any reports of ASB between December 2018 and 29 May 2020, when the resident advised the landlord of a recent visit he received from the police in connection with his neighbour’s behaviour. The landlord emailed the police to advise them of the resident’s concerns that the neighbour was involved in anti-social behaviour and crime and that the resident believed that he was involved in a recent stabbing incident in a different area. The landlord stated to the police that this was the first report it had received of ASB at the resident’s address. It conducted a risk assessment, which classified the resident as being at standard to medium risk from the ASB. The police had not advised the landlord that the resident was considered to be in immediate danger of harm as he had not been directly threatened or intimidated by the neighbour. Therefore, the landlord did not consider it appropriate to offer to move the resident at that time.
  3. The resident asked to be moved from his property on 29 May 2020 due to the ASB he was experiencing. The landlord concluded that the resident did not meet the criteria for an urgent move as the police had not advised he was in danger in his current property and he had declined to participate in mediation. The landlord signposted the resident to its website to examine the options available for a move as the landlord does not operate an internal transfer list.
  4. There had been no reports of ASB between 3 January 2019 and the next meeting between the resident and the landlord on 24 June 2019. Following this meeting, the landlord offered to open an ASB case and send a survey to all residents of the block, to ascertain if any other residents had had experience ASB. The resident declined this offer. The landlord’s records say it discussed the resident’s health concerns and what support it could offer during this meeting.
  5. The landlord opened an ASB case on 1 June 2020. The resident stated that he did not want the landlord to speak to the neighbour and that he just wanted to move. The landlord advised that it would not be possible to offer the resident a transfer to another property because of lack of available properties in the area. It also explained that the housing list for the resident’s area was controlled by the local authority rather than the landlord and the landlord could only offer properties in line with the local authority’s housing list. The landlord further advised that the police had not supported the resident’s request for a move as the police did not consider the resident to be in immediate danger due to the ASB. As the resident did not want the landlord to speak to the neighbour about the, the landlord closed the ASB case.
  6. There were no further reports of ASB from the resident until he emailed the landlord on 31 May 2021 to advise that he moved out of the property permanently on 26 May 2021.
  7. The resident emailed the landlord on 16 June 2021 to make a formal complaint about the ASB. He advised that he had stayed in a hotel for his own safety for nearly a year. The precise date he moved to the hotel is uncertain from the information provided to the Ombudsman. The resident requested a refund of the £8000 hotel expenses he had incurred during this time as he believed the landlord’s negligence forced him to stay in a hotel to avoid the ASB from his neighbour.
  8. The resident met with the landlord on 21 June 2021 to discuss his concerns. Following the meeting a complaint was logged and the resident was notified of this by email the following day
  9. The landlord issued its stage one complaint response to the resident on 7 July 2021 and did not uphold the resident’s complaint. The landlord believed that it had followed all of its procedures correctly. It said that its ability to help the resident was restricted by his refusal to open an ASB case on 21 December 2018, 3 January 2019, and 24 June 2019. The resident had also been given advice on improving his chances of a move in June 2020. As the resident was no longer living in one of the landlord’s properties, it declined to escalate the complaint further as it no longer had a legal relationship with the resident. The landlord also declined the resident’s request for a refund of the hotel expenses he had incurred because these costs were not agreed with the landlord beforehand.
  10. The resident contacted this Service on 4 August 2021 to explain that he had not received a complaint response. Following correspondence between the landlord, the resident, and the Ombudsman, the landlord sent a further letter on 21 September 2021. It did not uphold the resident’s complaint and advised that he was unable to escalate the complaint to the review stage of its internal process as he was not a tenant of the landlord when the complaint was first raised.

Assessment and findings

Policies and procedures

  1. The tenancy agreement says that a resident “may not cause, or threaten to cause a nuisance, annoyance or disturbance to anyone else including those in the neighbourhood”.

 

  1. The landlord’s signposted the resident to available options for moving listed on its website. These included requesting a mutual exchange and registering on the local authority’s housing list.

 

  1. The landlord’s internal ASB policy says it will open an ASB complaint if the resident names the alleged perpetrator and provides sufficient evidence such as diary notes or noise app findings for an investigation to take place.
  2. The landlord’s complaints policy promises a response to a stage one complaint within 10 working days. If the resident remains unhappy, they are entitled to escalate the complaint to the final stage of the landlord’s process providing that they had a legal relationship with the landlord at the time the incident(s) occurred.

The landlord’s response to the resident’s reports of ASB 

  1. It is outside the Ombudsman’s role to establish whether someone has committed ASB but rather it is our role to assess the landlord’s handling of the resident’s anti-social behaviour reports. We will consider whether the landlord’s response was fair and reasonable in view of all the circumstances, taking into account the landlord’s legal obligations, its own internal policies and industry best practice.
  2. In this case, it was reasonable that an ASB case was not opened as the resident had either declined the landlord’s offers to open ASB cases previously or had asked the landlord to close them before its investigations were complete. The landlord did open an ASB case on 1 June 2020, but the resident requested that it be closed as he didn’t want the neighbour to be contacted. This case was closed on 11 June 2020. The resident had also not provided any supporting evidence of the ASB or noise nuisance he has said he was experiencing. The Ombudsman is not doubting the resident’s account of his experiences of ASB, however, given the lack of evidence to support the resident’s claims of ASB, there were limited steps the landlord could take to resolve the issues.

18. The Ombudsman understands the resident felt that he was at risk of harm. However, the landlord has limited resources and it is expected to use its resources responsibly and fairly for the benefit of all its residents. The landlord also does not maintain its own housing list and the resident’s request for a transfer would have to be accommodated by the local authority subject to there being a suitable property available for the resident to move to.

19. A management move would normally only be considered if the resident was believed to be in imminent danger of harm and this application would need to be supported by the police, which has not happened in this case. The landlord classified the resident of being at standard to medium risk meaning that he would not meet the criteria for an urgent transfer.

20. The landlord could agree to a move on medical grounds if the tenant was unable to remain in their current property for medical reasons. However, a move on medical grounds would need to be supported with evidence from a medical professional detailing why the tenant’s current property was unsuitable and what their requirements were for a new property. It may be the case that the landlord has other residents waiting for a move on medical grounds so it may not have been possible to arrange an immediate move on this basis, even if it were agreed that it was necessary for the resident to move for medial reasons.

21. In line with industry best practice the landlord would only be expected to place tenants in a hotel in very limited circumstances and it would need to have extensive evidence, such as advice from the police, to confirm that the resident’s safety would be put at risk if he were to remain in their current property. In this situation the landlord would only place tenants in a hotel until a suitable property became available for them to move to via the local authority’s housing list. Residents who have had to leave their homes due to domestic violence, gang violence or severe ASB are given priority for rehousing under the local authority’s housing list. There is no evidence to suggest that the local authority gave the resident priority for rehousing on this basis.

The landlord’s handling of the associated formal complaint.

21. The landlord’s complaints policy provides for a written acknowledgement within five working days and a full response within 10 working days. As the resident was a tenant of the landlord at the time of the incidents, he is deemed to have a legal relationship with it and should have been able to escalate his complaint to the review stage of the landlord’s internal process. There is no timescale laid out in the policy for the review panel considering the complaint, but the landlord is obliged to communicate any decision made by the panel within 10 working days after the panel meeting.

22. The landlord’s acknowledgement email promised a response within three working days, but the landlord’s complaints policy provides for a 10 working day response. The acknowledgement was sent by the landlord on 22 June 2021, so it would be reasonable of the resident to expect a response by 25 June 2021, whereas the landlord was not obliged to respond until 6 July 2021, based on its complaints policy. The response on 7 July was outside the timescale of three days given to the resident. It would, however, have been appropriate for the landlord to offer and explanation and an apology for the delay.

23. The resident had a legal relationship with the landlord until he moved out in May 2021. Paragraph 25(a) of the Housing Ombudsman’s Scheme states that “if the complaint is made by an ex-occupier, they must have had a legal relationship with the landlord at the time that the matter complained of arose”. This resulted in the resident being denied the opportunity to have his complaint fully considered through landlord’s internal process and caused unnecessary inconvenience to the resident. The landlord should have carried out a stage two review and the Ombudsman will award compensation for this service failure. 

24. It is noted that on 4 August 2021 the resident advised that he had not received a complaint response from the landlord. The evidence provided shows that the response was initially sent by the landlord on 7 July 2021 to the resident’s email address. The landlord acted appropriately by supplying a copy of the response in a timely manner following contact from this Service. Although the resident did not receive this correspondence at the time.

25. The landlord also failed to advise the resident that he could refer his complaint to this Service when it told the resident that it was unable to escalate the complaint further using its internal processes. This Service wrote to the landlord on 6 August 2021 asking it to send the resident a final response letter which explained his rights to complain to this Service. This letter was not sent to the resident until 21 September 2021.

26. The landlord’s compensation policy provides for discretionary payments of between £50 and £250 where a resident has incurred distress, time, trouble or inconvenience This is also in line with this Service’s remedies guidance published on our website which suggests compensation of between £50 and £250 in cases of significant service failure which would not affect the overall the outcome for the resident. Examples include failure to meet service standards for actions and responses but where the failure had no significant impact. In this case the landlord failed to follow its complaints policy correctly, but the resident was not significantly disadvantaged by this as he was able to progress his complaint to this Service.

Determination (decision)

27. In accordance with paragraph 54 of the Housing Ombudsman’s Scheme, there was no maladministration by the landlord in respect of its handling of the resident’s reports of ASB and noise nuisance from his neighbour.

28. In accordance with paragraph 54 of the Housing Ombudsman’s Scheme, there was service failure in relation to the landlord’s handling of the associated formal complaint.

Reasons

29. The landlord took reasonable steps to investigate the resident’s ASB reports. However, it was limited in the actions it could take as the resident did not want the landlord to contact the neighbour. The landlord has explained the reasons why the resident would not have qualified for a transfer to another property. The landlord was not obliged to reimburse the resident for his hotel expenses as the costs were not agreed in advance and the landlord did not have the opportunity to explore other options for resolving the ASB.

30. The landlord incorrectly told the resident that it would not progress his complaint because he no longer had a legal relationship with it. The landlord also did not make it clear that it had issued its final response to the complaint. These errors were only corrected following involvement from the Ombudsman and the landlord should pay compensation as set out below for the inconvenience, errors and delays caused to the resident.

Order

The Ombudsman orders that the following action is taken within four weeks:

31. The landlord is to pay the resident £100 compensation in recognition of the inconvenience caused by errors in its formal handling of his complaint