LiveWest Homes Limited (202111179)

REPORT

COMPLAINT 202111179

LiveWest Homes Limited

26 May 2023

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 concerns:
1. The landlord’s handling of data sent to it by the resident which was shared without the resident’s consent.
2. The landlord’s handling to the resident’s reporting of the neighbour’s dog barking.
This report has also considered the landlord’s record keeping and complaints handling.

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 42 (k) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.
1. The landlord’s handling of data sent to it by the resident which was shared without the resident’s consent.
Paragraph 42 (k) of the Scheme says the Ombudsman will not investigate matters which, “in the Ombudsman’s opinion, fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.”
The resident has alleged the landlord breached her data protection by sharing her data with a third party without her consent. The landlord has said the regulations allowed it to do so as its actions were deemed to be in a legitimate or vital interest.
The Information Commissioner’s Office (ICO) was set up to deal with concerns about data handling by organisations, it is therefore in a position to assess the regulatory aspects of both the resident’s complaint, and the landlord’s actions. As a result, this aspect of the resident’s complaint falls outside of the Ombudsman’s jurisdiction. This Service has had sight of a response from the ICO to the landlord dated 1 February 2022 which indicates it has already considered this matter.
The Ombudsman can investigate activities undertaken by the landlord while it is acting in its capacity as a landlord. On that basis, we can consider the landlord’s handling to the resident’s reporting of the neighbour’s dog barking. This will form the focus for the rest of this assessment.

Background and summary of events

Background

The resident is an assured tenant and the tenancy began on 3 November 2008. The resident’s partner has assisted her in this complaint and in communicating with the landlord and both of them will be referred to as the resident throughout the report. The property is a two-bedroom end of terrace house.
Whilst the resident has complained about the landlord’s housing officer, the individual will be referred to as the landlord throughout this report.
The landlord’s complaints policy consists of two stages. At stage one the landlord aims to respond to the complaint within five working days. If the resident remains unhappy with the response at stage one, the matter can be escalated to stage two where the landlord will aim to respond within seven working days.
The landlord’s anti-social behaviour and hate crime policy sets out that anti-social behaviour (ASB) is conduct that has caused, or is likely to cause, harassment, alarm of distress to any person.
In terms of case management, the landlord’s policy states “where ASB is reported to us our response to allegations will be robust and proportionate. We will aim to resolve the majority of incidents through early intervention by using a range of tools such as coaching, warnings, acceptable behaviour/parenting contracts, referrals to other statutory and voluntary agencies, community resolution and mediation services”.
Hate incidents are defined by the landlord as “if a victim or anyone else believes that it was motivated by hostility or prejudice based on” amongst other issues disability. The landlord’s policy explains that incidents reported may also be hate crimes and that “we will support our customers to report this to the police and we will then work closely with them to reduce the risk of harm”.
In terms of categorisation the landlord’s policy treats hate crime and threats of violence as a red priority with a high risk of harm. In terms of the response the landlord set out it would aim to respond, “within 24 hours of receipt by way of advice and such action as is appropriate”. The only other priority was an amber priority where the response would be “within 24 hours and investigation will begin within 5 days”.

Summary

The resident emailed the landlord in the early hours of 14 March 2021. The email from the resident referred to dogs barking however it explained that they could not be sure which neighbour’s dog was making noise. The resident asked the landlord to speak to the neighbours. The resident added they had an agreement in place for the dogs not be out between 11pm and 7am but at weekends they wanted this extended to 9am.
The landlord emailed the resident on 15 March 2021. It explained:
1. Having spoken to both neighbours neither had said it was their dog who had been barking.
2. Whilst it sympathised with the noise issues the resident had been facing, it could have been another dog who was barking, or even a fox.
3. It was unable to enforce the 9am curfew.
4. Although a photo had been provided of a dog by the resident this was not evidence of any noise.
5. It had stressed to both neighbours that barking during the night and early morning needed to be managed and that the dog warden or environmental health could become involved.
The resident emailed the landlord on 17 March 2021 to set out:
1. Whilst they understood the limitations of photos they had previously sent videos to the landlord and no action had been taken.
2. That they had tried contacting environmental health on several occasions but had been unable to get any response from it.
3. They questioned the landlord’s reference to the noise being from a fox, as they stated it was clear it was from a dog.
4. The issues were ASB and that it needed to be acted upon by the landlord.
5. They understood there was a noise law in place which set out that councils could issue warning notices in response to complaints about noise levels from 11pm to 7am. It therefore asked the landlord to speak to the council.
6. If the landlord did not do anything based on the matter they had in terms of the neighbours “the right to cause them just as much ‘annoyance and nuisance’ right?”
Another email was sent by the resident to the landlord on 17 March 2021. The resident forwarded a previous email from 20 July 2020 concerning noise from the dogs in the early hours.
The landlord responded on the same day. It explained in relation to the resident’s email that:
1. Whilst it noted the issue of the videos and photos when it had pushed back the matter to the neighbours it had been given the response that it must have been a different dog. The landlord explained it had not seen priorvideos of the dog and that given the issues happened at night that it might be difficult to obtain a video showing a time and date of the dog barking. If the resident did have videos the landlord suggested this was presented to the dog warden.
2. In terms of environmental health, it did not deal with that sector or the dog warden hence why it suggested the resident contacted them. It added that no one else had complained over the issue and given this it was not sufficient evidence to class it as ASB but rather a difference of lifestyle.
3. In terms of the comments that the noise could be a fox, this was based on feedback the landlord had been provided including from people who had dogs themselves.
4. In terms of the noise law the resident referred to it was not the council and hence the resident should approach the council for further assistance. The landlord added that due to data protection the council would not speak with it with reference to a specific household.
5. With reference to causing the neighbours nuisance the landlord had received a call from a neighbour about a bright light being shined into the garden at night. The landlord asked if the resident knew anything about this.
The resident emailed the landlord back on 17 March 2021 asking for the matter to be raised as a stage one complaint. The resident confirmed that they had shone a light into the garden of the neighbour as the landlord had requested evidence. The resident added that they would continue to shine the light in order to gather evidence.
The landlord sent the resident an acknowledgment on 19 Mach 2021 to explain that a complaint had been raised about the matter. It sent the stage one response on 25 March 2021 not upholding the complaint. It explained that it had not treated the pet nuisance as ASB whilst accepting that it did impact the resident. It added it had provided advice to the resident about other teams such as environmental health or the dog warden which would be better placed to help them.
The resident requested that the matter had not been resolved to her satisfaction and wished to escalate the matter to stage two on 25 March 2021.
The landlord issued the stage two response on 7 April 2021. This had followed a call made by the landlord to the resident the previous day. The landlord offered £50 as a goodwill gesture for the failure to escalate the complaint when requested and for accepting it could have done more. It explained:
1. The historical reports of the dog barking had been sporadic in nature, going back to 2019. As a result it would not be considered as ASB under its ASB policy. Instead, persistent barking would be considered as noise nuisance and would be considered as ASB “where there is evidence to support this”. It therefore asked the resident to complete diary sheets.
2. It had not been clear in its messaging in explaining that its actions varied depending on whether the noise was persistent.
3. It could have done more under its pet procedure in challenging the neighbour on the management of her pets. It added that pets champions could have provided help and support to help the neighbour meet the standard that it would expect from pet holders.
4. It apologised for the distress caused to the resident by incorrectly stating there was nothing further that it could do without substantive evidence of the dog barking at night.
The resident emailed the landlord on 11 June 2021 concerning the neighbour’s dog. The email which was sent in the early hours explained that the dog had been left outside and was barking and that the resident was unable to go back to sleep. The email contained a profanity in relation to the neighbour and asked the housing officer to “speak to them otherwise I’m afraid I will have to take matters into my own hand and go round hammering on their door”.
The resident sent two further emails on 11 June 2021 to raise a formal complaint about the matter. The resident set out that the landlord had not provided any updates following the completion of journals which had previously been completed nor following any discussion the landlord had had with the neighbour. The resident used profanity to describe the neighbour as well as a derogatory word about them.
On 1 July 2021 the resident phoned the landlord to raise a complaint. This had followed on from a police community support officer (PCSO) having visited the resident on that day. The resident explained that when enquiring what the visit was about the PCSO had mentioned issues which would only have been known if the landlord had shared the contents of the emails which the resident had written to it. The resident considered this was a breach of their personal data in sharing information without their consent. The call which was made to a mobile number was not recorded and there has been conflicting accounts about what was said during the call.
The landlord has explained that it called the resident on 2 July 2021 to explain that it was looking into the resident’s concerns and it would provide an update by the end of the week. The landlord’s notes show that the call to the resident had been made by the data protection manager.
Following a further call from the landlord on 12 July 2021 about the matter the resident sent the landlord an email which set out the issues from her perspective. These were:
1. A breach of the resident’s data protection by the release of information to the PCSO, which the resident believed to be private, between the resident and the landlord, without the resident’s consent.
2. The landlord having not owned up to releasing the information, instead saying when directly asked about it that it was a third party who had done this.
3. The PCSO and the landlord having been inconsistent in their responses when the resident had challenged them about the purpose of the visit of 1 July 2021. The resident stated that during a later call with the PCSO, they had divulged the purpose of the visit had been in response to a complaint made by the neighbour. This had not been mentioned originally when the PCSO had been asked about the matter when they had called at the property on 1 July 2021. This led the resident to believe that there had been collusion between the PCSO and the landlord over the responses provided to them.
4. The resident considered that as no law had been broken by them, why did the landlord think it could divulge personal information with a third party.
The landlord wrote to the resident on 22 July 2021 providing the stage one response. It explained that the police had been conducting their own investigation and had approached it for further information. The landlord had provided the PCSO with information, which it said had detailed the situation.
The resident emailed the landlord on 23 July 2021 to explain that that they were unhappy that an area housing manager as opposed to the data protection team had looked into the complaint. The resident requested that the matter be escalated to stage two.
The landlord replied to the resident on 23 July 2021. It explained that whilst an area manager had looked into the matter, that area manager did not cover the resident’s area and had sought advice from the data protection team before responding to the resident. The resident replied via email on the same day to request that only the data protection manager should be investigating the matter and should respond to them.
The resident emailed the landlord on 25 July 2021 to request copies of the telephone conversations between it and the landlord when the disparaging comments about the neighbours had allegedly been made.
The data protection manager emailed the resident on 27 July 2021 to explain the context of when it could share information. Referral rights to refer the matter to the information commissioner’s office (ICO) were provided to the resident. The resident informed the landlord the same day that a complaint had been made to the ICO.
The landlord emailed the resident on 29 July 2021 to explain that as a referral had been made to the ICO concerning the data breach it would not escalate the complaint to stage two. It had instead closed the complaint.
The resident responded on 29 July 2021 to explain that the complaint was not closed. The resident set out that there had been accusations made against them by the landlord. The resident requested a copy of the lease and not the tenancy agreement. This was in relation to a separate complaint which they were making. The resident also requested a copy of the call recordings to be provided to them within seven days.
On 5 August 2021 the resident sent the landlord an email to explain that having raised a complaint about the conduct of the PCSO, this complaint had confirmed that the landlord had been the party to share emails with the PCSO. This was contrary to the information the landlord had provided to the resident when the matter had originally been discussed by telephone on the day the visit had taken place. As a result, the resident wanted a formal complaint to be made against the member of staff.
The landlord emailed the resident on 6 August 2021. It noted that in addition to this issue the resident had contacted it with regards to another issue, to do with rubbish. The email noted the resident’s request for the call recordings.
The landlord undertook internal enquiries. These investigations determined that the calls had been made via a mobile phone and so would not have been recorded. In terms of the resident’s allegations of what had been disclosed to the PCSO and said to them during the telephone calls, this was also disputed by the member of staff.
Following this Service having contacted the landlord about the complaint on 23 August 2021 and asked it to deal with the matter, the landlord explained it was raising a new complaint the matter. The landlord has confirmed this was an error and that it should have instead offered an escalation of the existing complaint.
The landlord sent a stage two acknowledgment to the resident on 20 September 2021. It informed the resident that some aspects of the complaint might not be investigated as it had been referred to the ICO.
The landlord issued the stage two response to the resident on 29 September 2021. It accepted there had been delays in escalating the complaint to stage two for which it offered £200 compensation. It also accepted that that it should have spoken to the resident following the use by the resident of non-acceptable comments in the emails of 11 June 2021. It explained that it had asked the team to retrospectively log the incident and respond under the ASB procedure. In terms of call recordings the landlord explained that the retention of data was limited to 28 days where they were made through the customer service centre. In this case the calls in question had exceeded this timeframe and so could not be provided.
In terms of the comments made by the resident about some of the landlord’s representatives the landlord accepted that relationships had deteriorated and it proposed mediation, should the resident wished to accept it.
The resident informed the landlord on 29 September 2021 that they remained unhappy with the landlord’s investigation. It did not want to proceed with mediation with it.
The landlord and the resident exchanged a series of emails on 30 September 2021. The resident also provided the landlord with their bank details for the payment of £200 to be made. The resident questioned the explanation of hate crime under the landlord’s ASB policy and the landlord’s comment that any incident associated with hate was recorded. This was in respect of the language used in the resident’s emails of 11 June 2021 to the landlord. It also provided details of the hate crime policy to the resident. It explained that it was referring the matter to its enforcement team to ensure that it complied with its policies and procedures.
The resident disagreed with the landlord and explained that if they felt it necessary, they would liaise with the enforcement team. Whilst the enforcement manager did contact the resident subsequently a face to face meeting had not taken place.
The ICO wrote to the resident on 1 December 2021. The ICO explained that they had written to the landlord as there was further work that it needed to do.
The landlord wrote to the resident on 18 January 2022. This had followed on from correspondence it had received from the ICO. The landlord’s letter explained the legal authority that it had relied upon in sharing the personal data with the PCSO. The landlord provided referral rights to both the ICO and to this Service.

Assessment and findings

Since the final response from the landlord on 18 January 2022 the resident has raised further issues. These relate to the concerns about the conduct of several other members of the landlord’s staff. This had followed the resident submitting a subject access request to the landlord on 18 January 2022. The resident concerns included the manager who had issued the stage two complaint in relation to her having recorded and reported the resident’s email of 11 June 2021 under disability/race as well as the housing officer. The resident wanted this to be considered as part of the ongoing complaint. These issues will not be addressed as part of this investigation as the Ombudsman cannot consider complaints which have not yet exhausted the landlord’s complaints procedure nor been addressed to the landlord in the first place. The Ombudsman has however made a recommendation in relation to these issues which is set out at the end of this report.

The landlord’s handling to the resident’s reporting of the neighbour’s dog barking.

The resident has contacted the landlord on a number of occasions in relation to a number of different issues, some of which have been escalated as separate complaints. This assessment will concentrate on the resident’s contact with the landlord regarding the noise nuisance from the dogs from March 2021.
Upon being contacted on 14 March 2021 by the resident about the barking dog the landlord’s member of staff responded the next day. This was a prompt response, especially as the resident’s email had been sent on a Sunday. The landlord’s response not only acknowledged the resident’s complaint but explained that it had also spoken to both of the resident’s neighbours. Although the landlord was unable to determine whose dog had been barking it was able to provide the resident with some further information including to whom they could turn to if the matter continued. The landlord explained that based on the information and evidence it had at the time it was unable to take any formal action at that time.
The landlord’s initial response whilst being prompt did not offer the resident the option to complete diary sheets with a view to gauge how widespread the issue of the noise disturbance via the dog barking had become. In dealing with noise nuisance the use of diary sheets is an approach often used by landlords. The landlord was also aware that the issue had been raised by the resident previously and that the matter had been stressful for them given when in the day the noise had been occurring. However, the landlord did address this issue in the original stage two response issued in early April 2021. Whilst there was a delay of several weeks which caused the resident a degree of distress and inconvenience the landlord made an award for this, which was appropriate in the circumstances.
Following the initial contact by the resident in March the landlord continued to communicate with them over the matter over the next few days, promptly responding, in some cases on the same day. There was some back and forth by both parties over the content of each other’s email. This promptness in responding was evidence that the landlord was taking on board the resident’s concerns. It has been clear based on the evidence provided by the landlord that conversations including providing advice was given to the neighbour that the resident considered was responsible for the noise. The neighbour was informed that should the noise issues persist then the dog might need to be rehomed. The language used by the landlord in the communications to the resident was clear in that it understood the impact of the noise on the resident and it was trying to resolve the matter for them.
The communication from both parties also show that the landlord did also speak to the resident on occasions both in March 2021 and in June 2021 as well as to the resident’s neighbours. However, no evidence of any file notes of any telephone calls, which would set out the nature of any discussions which occurred have been provided. Therefore, it is not possible to verify what exactly was discussed during these calls. Both parties have disputed what was said during the calls and without contemporaneous evidence including call notes it has not been possible to determine what exactly had been said by both sides.
Following the issuing of the initial stage two response on 7 April 2021 there was then a two-month gap until there was a further mention made about the dog barking. This is indicative that the noise issue may have temporarily been abated at least for some time. It is not disputed that the resident’s emails sent on 11 June 2021 did contain some offensive language. The resident has explained that the language was not said as a sign of any hate crime but was borne out of frustration given the disturbance they had been experiencing during the night and early morning that the emails had been sent. Whilst this may have been the case it does not act as an excuse for the use of the language when referring to the resident’s neighbour.
There is no evidence that the landlord raised any concerns with the resident upon receiving the emails of 11 June 2021 with regards to the language used by the resident within them. Whilst the resident has said the landlord had acknowledged that the resident was speaking out of frustration during calls with it, no detailed notes of the telephone conversations have been provided. Nor did the landlord record those calls and it has not said that this had been the case. Whilst the landlord provided the emails to the PCSO, when contacted by it about a complaint made by the resident’s neighbour there is no indication that any internal communication was made about the emails and the contents including to its enforcement team. Neither was there any indication that the landlord had treated the matter as a hate crime until it issued the stage two response in late September 2021, over three months after the incident had occurred. This delay in referring to the issue for this time amounts to a failing on the part of the landlord.
In relation to the noise nuisance reported by the resident, the landlord has confirmed prior to issuing the stage two response in September 2021 that the neighbour’s dog had been rehomed.

The landlord’s record keeping.

Part of the resident’s complaint over the conduct of the landlord centres on what was said between the parties during a number of telephone calls. These calls had occurred during the time that the issue of the dog barking had been referred to the landlord. Whilst the resident had requested a copy of these calls following making the complaint in July 2021, the calls were made to and from a mobile phone and were therefore not recorded by the landlord. The landlord also failed to take notes of the contents of the calls, which was especially important if the call had contained something memorable to note.
Clear record keeping and usage of held records is essential to the effective operation and delivery of landlord services. This has not been the case in its management of the resident’s complaint about the conduct of the landlord’s representative and the complaint about ASB. The landlord been unable to provide detailed contemporaneous notes between the resident and it, as well as between it and the neighbours when it had made enquiries about the dog barking. These recording failures amount to a failure on the part of the landlord.

The complaints handling.

The landlord failed to act on the resident’s request for a formal complaint being raised on 11 June 2021. Whilst it did acknowledge the complaint the day after the resident had again raised the issue (on 1 July 2021) and a telephone call did take place within the timescales of the acknowledgment email it did not provide the stage one response until 15 working days had passed, some ten days outside the timescales listed in its complaints policy.
The resident requested an escalation to stage two the day after receiving the stage one response. The target timescale for a response was seven days. However, the landlord initially closed the complaint on the basis that the matter had been passed to the ICO. Upon the resident confirming on 29 July 2021 that the complaint also concerned the conduct of its employee in regard to the issue of the dog barking the landlord should have re-opened the complaint or failing to do that looked at the matter as a new complaint. It did neither, only acting after being contacted by this Service in August 2021. Even then it did not provide the resident with an acknowledgment that it was escalating the complaint to stage two until 20 September 2021, some 37 days later. The stage two response was provided on 29 September 2021, 44 days after the resident had requested it, well in excess of the timescales under the landlord’s policy.
In the stage one response the landlord did not offer an apology for the delay. At stage two it did apologise and made an award of £200 for the delay. However, no reason was provided as to why the matter had been delayed and was not in keeping with the timescales as set out in the landlord’s complaints policy.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s reporting of the neighbour’s dog barking.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s record keeping.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the complaints handling.

Reasons

Upon receiving the resident’s emails in June 2021which contained inappropriate language the landlord did not adhere to its own ASB policy in flagging up the matter with the resident there and then. It did not carry out any early intervention nor provide any warnings to the resident about the tone used by them in the emails and only acted several months later when the complaint had been escalated to stage two by the resident.
The landlord failed to keep contemporaneous records which accurately noted details of meetings with individuals. There were also record keeping failures in terms of the notes on the telephone discussions which took place between the resident and it. The landlord also failed to inform the resident promptly that the reason that call recordings could not be provided was not due to the retention period as indicated in the stage two response but because the calls were made via a mobile.
There was a delay at stage one and an extended delay at stage two of the complaints process. At both stages no explanation was offered by the landlord. Whilst an award was made for the delay at stage two no award was made in relation to the delay and lack of apology at stage one. The landlord also failed to make a formal complaint when asked by the resident.

Orders and recommendations

Orders

Within four weeks of the date of this determination, the landlord should:
1. Apologise to the resident for the failings identified by this Service.
2. Pay the resident a further amount of £400, which is in addition to the amount of £250 already paid by the landlord which comprises:
  1. £100 for the landlord’s handling of the resident’s reporting of the neighbour’s dog barking.
  2. £200 for its failure in its record keeping.
  3. £100 for the failure in the complaints handling.
Review its record keeping processes to ensure appropriate recording of, handling of and responses to complaints and delivery of operational services.

Recommendation

The landlord reviews the concerns raised by the resident following the completion of the landlord’s internal complaints process in September 2021. This should include the issues raised by the resident following receipt of the subject access request documents in January 2022.