Optivo (now Southern Housing) (202203710)

REPORT

COMPLAINT 202203710

Optivo (now Southern Housing)

29 February 2024

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 reports of anti-social behaviour, including the level of support provided by the landlord.
2. The landlord’s handling of a subject access request submitted on the resident’s behalf.
3. The landlord’s handling of safeguarding concerns it had about the resident’s child.
4. The landlord’s handling of the associated complaints.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this Service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
Paragraph 42j of the Housing Ombudsman Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion… “fall properly within the jurisdiction of another Ombudsman, regulator, or complaint-handling body”.
In this case, the resident’s representative submitted a subject access request (SAR) to the landlord on 29 March 2021 and the resident has complained to this Service about the landlord’s handling of the SAR. As complaints about SARs fall within the jurisdiction of the Information Commissioner’s Office, this element of the complaint is outside of the Ombudsman’s jurisdiction.

Background

The property is a one-bedroom flat and the resident had an assured shorthold tenancy which began on 29 January 2018. The landlord is a housing association and the resident occupied the property as temporary accommodation, which the local authority arranged in pursuance of its housing duties under the Housing Act 1996.
The resident’s tenancy of the property ended on 30 May 2021 after she was rehoused by the council.
The landlord has advised this Service that it had no vulnerabilities recorded for the resident.

Summary of events

On 9 September 2020, the landlord served a notice under Section 21 of the Housing Act 1988 stating that the resident should vacate the property by 15 March 2021.
The resident phoned the landlord on 16 December 2020 to advise the landlord about ongoing anti-social behaviour (ASB) from one of her neighbours. The landlord’s record of the call stated that the resident had contacted the police about a recent ASB incident involving the neighbour. She advised the landlord that she was particularly anxious because most of the ASB occurred in the communal landing serving both the resident’s property and her neighbour’s flat.
The landlord’s records dated 30 December 2020 stated that it was in the process of applying for possession of the neighbour’s flat in the county court.
The landlord’s records show that it phoned the resident on 30 December 2020 to advise her that it had followed up her reports of ASB. It had spoken to the neighbour and advised him not to approach or communicate with the resident. The resident stated that there had been previous ASB incidents, including the neighbour indecently exposing himself. The landlord advised the resident that it would write to the neighbour about the reported ASB.
On 11 January 2021, the landlord wrote to the National Health Service (NHS) community health care trust and the local council about a fire incident on 9 January 2021 involving the neighbour. The resident had called the fire brigade after smelling burning. The landlord’s notes stated that the cause of the burning was plastic items that had been left on the cooker hob.
The neighbour’s NHS care worker contacted the landlord on 11 January 2021 and confirmed that he had spoken to the neighbour that morning. However, according to the care worker, the neighbour had not mentioned the fire incident and the care worker had not seen any evidence of fire or burning smells in the neighbour’s flat. The care worker did, however, inform the landlord that the neighbour’s flat was very cluttered and there were discarded food items. The care worker was therefore waiting for a quote to carry out a ‘deep clean’ within the neighbour’s property.
On 21 January 2021, the resident spoke to the landlord and requested a transfer. The landlord advised the resident that it would liaise with the council to check whether the council could provide the resident with alternative temporary accommodation. The resident confirmed she had hand-delivered a copy of the Section 21 notice to the council to help with her request for rehousing.
The landlord contacted the council on 21 January 2021 to ask whether they could offer the resident an urgent transfer to one of the other properties used by the landlord as temporary accommodation. The landlord explained that the resident had experienced ASB problems caused by the neighbour, who was known to have mental health issues. The landlord added that it had served a Section 21 notice on the resident, which would expire on 15 March 2021. The notice had been served because the landlord’s lease for the property with the freeholder was coming to an end.
The landlord contacted the NHS care team on 25 January 2021 regarding the neighbour and referred to a meeting that had taken place on 12 January 2021 involving the NHS care team and the landlord. During the meeting it had been agreed that the NHS care team would liaise with the council regarding the neighbour. The NHS care team then spoke to the landlord on 27 January 2021 and confirmed it had contacted the council about the neighbour.
On 5 February 2021, the landlord contacted the resident and advised that it had spoken to the council about her request for emergency rehousing. The landlord reported that the council had said it did not have a duty to consider the resident’s request for an emergency transfer. However, it had advised that it could assist the resident with a deposit for a private rented property. The council also confirmed that the resident was currently on its waiting list.
During the conversation between the resident and the landlord on 5 February 2021, the landlord stated that it had completed a fire risk assessment in relation to the neighbour and that it was continuing to liaise with other agencies regarding the neighbour. The landlord stated that the resident should continue to report any ASB to the police and to the landlord.
On 18 March 2021, a representative of the resident wrote to the landlord and stated the following:
1. The resident had reported various ASB incidents to the landlord.
2. The police had issued the neighbour with a harassment warning letter in 2020 and had recorded other incidents.
3. The neighbour had started 2 fires in the past 3 months.
4. The resident’s request for a ‘management move’ was outside of the council’s responsibilities under Part 6 of the Housing Act 1996 and was therefore the landlord’s responsibility.
5. The resident’s property should be assessed under the Housing Health and Safety Rating System as it represented a hazard.
The resident’s representative wrote to the landlord’s Chief Executive on the same day (18 March 2021) to advise that the resident was in danger because of ASB caused by the neighbour.
On 19 March 2021, the council contacted the landlord to confirm it had offered the resident a deposit so she could find a property in the private rented sector. The council had advised her to actively look for a suitable property and had sent her information such as estate agents and property websites.
On 22 March 2021, the resident sent the landlord a video recording of her son. She stated that the video showed that her son was upset by her neighbour’s actions.
On 26 March 2021, the landlord sent a safeguarding referral form to the council’s Multi-Agency Safeguarding Hub (MASH). The form stated that the resident’s young child had been inappropriately clothed (undressed) in the communal area and the resident had been video recording the child.
On 26 March 2021, the resident’s representative wrote to the landlord and asked for clarification as to why the landlord had referred the child to the council’s safeguarding hub. The landlord replied on the same day and explained that it had a duty to report any safeguarding concerns to the local authority.
The resident wrote to the landlord on 27 March 2021 and stated the following:
1. In relation to the safeguarding referral, the resident said her son had been crying because the neighbour had been causing a disturbance. Her son had not been wearing trousers because he was being ‘potty trained’.
2. The resident said that her child had been filmed inside her property rather than in the communal area and this could be seen from the video footage.
3. The resident stated that the council had advised her that the landlord was under a duty of care to rehouse her. The council had only been assisting the resident with her housing because she had received a Section 21 notice, not because of the ASB problems.
On 29 March 2021, the landlord wrote to the resident’s MP and stated that it had contacted the police regarding the neighbour and the police had confirmed they had sent the neighbour a harassment warning letter on 3 May 2019. The landlord stated that it had not received any allegations of ASB from the resident at that time. The landlord added that it had served the resident with a Section 21 notice because the lease on the property was due to expire and therefore the council would be looking for alternative accommodation for the resident.
The landlord advised the MP that it did not have a duty to rehouse the resident, however, due to the exceptional circumstances, it had made her an offer of alternative accommodation on 19 March 2021, which she had refused.
The landlord wrote to the resident on 30 March 2021 and explained that the video footage had been discussed with its Safeguarding Co-ordinator and it was decided that a referral was appropriate. The landlord had contacted the resident on 26 March 2021 to advise that it intended to send the referral to the council. In terms of the resident’s housing situation, the landlord repeated that it did not have a duty to provide emergency accommodation, but nevertheless had offered the resident a one-bedroom flat. The resident had declined the offer because of the distance of the property from her support network.
The resident wrote to the landlord on 7 April 2021 and stated that she wanted to make a formal complaint. She included the following points in her email:
1. The police had issued a harassment warning to the neighbour and the resident had numerous crime reference numbers from the police following incidents she had reported to them.
2. The resident had requested a transfer on various occasions but felt she had not been supported by the landlord.
3. The neighbour had caused 3 fires in the last 3 months causing her to call the fire brigade. The neighbour removed batteries from his smoke alarms and therefore this increased the risks.
4. The landlord had made a safeguarding referral to the council even though a video she had taken was of her son in the property rather than in the communal area. The resident stated that the landlord had not carried out sufficient investigations before making the referral.
5. The resident stated that the landlord had shared details about her rent arrears with the resident’s advocate without her permission and therefore this was a data protection breach.
6. The resident stated that the landlord should have arranged for another member of staff to deal with her complaint about the safeguarding referral, rather than the staff member who had made the referral.
7. The resident stated that she suffered from long-term depression and anxiety which impacted on her day-to-day life and therefore she believed she was protected under the Equality Act 2010. The resident stated that she had been discriminated against.
8. The resident felt that the landlord had not used the various tools at it disposal for dealing with the ASB, such as issuing a warning to the neighbour.
The landlord’s records show that it sent documents to the county court on 9 April 2021 to support its application for an injunction with the power of arrest and an exclusion order in relation to the neighbour. The landlord advised the court that it was seeking an interim order as the neighbour had returned to his flat having previously been in respite care.
The county court wrote to the landlord on the same day (9 April 2021) and confirmed that the Judge dealing with the request had refused the landlord’s application for an interim order due to a lack of evidence. The Judge remarked that “the previous fires appear to have been accidental due to an accumulation of rubbish over the hob” and that a “blitz clean” carried out a few days earlier by the council had significantly reduced the risk of fire.
On 26 April 2021, the landlord replied to the resident’s complaint and stated the following:
1. The landlord confirmed that it had received a SAR from the resident’s representative on 29 March 2021 and then from the resident on 6 April 2021. The latter request had been sent to the relevant team to complete the request.
2. The landlord had received an email and video from the resident on 22 March 2021. The staff member who received the video discussed it with her line manager and with the landlord’s Safeguarding Team. As a result, the landlord decided to refer the matter to the council’s MASH as it believed the video showed the resident’s son was inappropriately dressed in the communal area.
3. The resident had subsequently explained that the child was in the resident’s property rather than the communal area. However, the landlord stated that it had not been able to discern this from the video as the officers dealing with the matter were unaware of the layout of the building.
4. The council’s MASH had since spoken with the resident and decided to close the case.
5. The resident had requested the landlord to transcribe any speech from the video. However, the landlord stated that much of the sounds were inaudible and therefore it had made a file note to record this for reference.
6. The landlord explained that it was not the freeholder of the property and it had served the Section 21 notices on the resident and the neighbour because the landlord’s lease with the freeholder was due to expire.
7. The landlord stated that it did not hold a transfer list but had been able to offer the resident alternative temporary accommodation on 19 March 2021, which the resident had refused. The council was therefore liaising with the resident to find alternative accommodation and assist her with a deposit if required.
8. The landlord stated that it had applied for an injunction with the power of arrest and an exclusion order on 9 April 2021. However, the Judge had refused the application based on the evidence provided to him.
9. The landlord confirmed it was working with the statutory agents involved with the neighbour and had given the resident the contact details of the council’s emergency housing unit in the event the resident felt unable to remain in the property.
10. The landlord stated that its dedicated ASB Officer was now dealing with the ASB issues.
The resident replied to the landlord on 27 April 2021 and stated the following:
1. The resident disputed the landlord’s information regarding the SAR.
2. The resident said that the landlord should have visited the property to investigate the video before making the safeguarding referral to the council.
3. The resident said she believed the Section 21 notices had been served on the resident and her neighbour due to the condition of the neighbour’s property.
4. The resident questioned why the landlord had not provided her with details about the community trigger. She confirmed that her request for an ASB case review under the community trigger had been accepted.
5. The resident questioned why the landlord had not requested her to provide a statement to support its application to the court for an injunction.
6. The resident stated that, in her view, the landlord should have taken action when the police had served the neighbour with the harassment warning letter.
On 30 April 2021, the landlord sent the resident a form to request a review of her complaint by a panel. The resident submitted the completed form on 11 May 2021 in which she stated the following:
1. The landlord had failed to investigate whether her child had been in the communal area before making the safeguarding referral.
2. The resident stated that the landlord had failed to address the ASB issues over a 3-year period, including 3 fires caused by the neighbour since January 2021. This had placed the resident and her son in danger.
3. The resident felt that the landlord should have acted when the neighbour was issued with the police harassment warning letter in 2019.
4. The ASB incidents had caused her “emotional and mental damage” and therefore she was seeking compensation of £6,000.
On 13 May 2021, the landlord wrote to the resident to advise her that the virtual review meeting was scheduled to take place on 14 July 2021.
The landlord’s records show that the resident’s tenancy ended on 30 May 2021 as she was rehoused by the council.
The review panel meeting was held on 14 July 2021 and was attended by the resident. The landlord wrote to the resident on 28 July 2021 to advise her of the outcome of the review panel meeting. The main points included in the letter were:
1. As requested by the resident, her complaint about the safeguarding referral had not been investigated by the officer who made the referral.
2. The panel explained the reasons why the landlord had made the safeguarding referral and the panel concluded that the decision to make the safeguarding referral was justified.
3. The panel considered the resident’s complaint about the SAR and concluded that the landlord had responded within the prescribed timescale of one calendar month.
4. In terms of the ASB reports, the panel found that the resident had reported various ASB incidents since 2018, including:
  1. The neighbour putting a bottle of oil on the resident’s car (July 2018).
  2. The neighbour kicking the resident’s front door and exposing himself (November 2019).
  3. The neighbour threatening to kill the resident (June 2020).
  4. The neighbour slamming his door (December 2020).
  5. The neighbour causing a fire (January 2021).
  6. The neighbour causing a fire (March 2021).
5. The panel noted that the resident had been offered alternative temporary accommodation on 19 March 2021 but had refused this because of the distance from her support network.
6. The panel also noted that the landlord had attempted to take formal action against the neighbour on 9 April 2021 by applying for an injunction and an exclusion order. However, the court did not feel there was sufficient evidence to award the orders.
7. The panel stated that the landlord had spoken to the resident, the neighbour, the fire brigade and the police at different times in order to investigate the ASB incidents. The panel stated that some of the issues were difficult to follow up due to a lack of evidence. However, it accepted that the landlord could have used independent evidence from the police and fire brigade to take tenancy enforcement action much earlier in relation to the neighbour.
8. The panel concluded that given the number of complaints made and the period of time involved (almost 3 years), the landlord could have done more to support the resident and take formal action much earlier than it did. The panel added that aspects of its ASB policy had not been followed fully and therefore upheld this part of the resident’s complaint.
9. The landlord offered the resident discretionary compensation of £300, which it stated was in line with its compensation policy.
The resident wrote to this Service on 1 July 2022 and stated that she wanted the Ombudsman to investigate her complaints because of the way she was treated for 3 years by the landlord.
In response to an information request from this Service, the landlord wrote to the Ombudsman on 23 February 2024 and stated the following:
1. Due to the landlord’s retention policy, any risk assessments dating back longer than 2 years were no longer available.
2. The resident had been rehoused by the local authority in May 2021 rather than the landlord.
3. The landlord confirmed that a harassment warning letter was sent to the neighbour by the police, but the landlord did not have a copy of the letter due to its retention policy.

Assessment and findings

Scope of the investigation

On 7 April 2021, the resident wrote to the landlord and stated that the landlord had, in her view, discriminated against her as she was covered by one of the protected characteristics in the Equality Act 2010. Whilst the Ombudsman can consider the reasonableness of the landlord’s actions in responding to the resident’s reports of ASB, this Service is unable to make a legal finding of discrimination in that regard. This would be a matter for the courts to determine, where appropriate evidence could be interrogated and the relevant legislation applied to the circumstances. If the resident believes she has been unlawfully discriminated against, she may wish to seek independent legal advice or contact the Equality and Human Rights Commission for further information on her options.
In the same email, the resident stated that she suffered from long-term depression and anxiety and on 11 May 2021 she advised the landlord that the ASB had caused her “emotional and mental damage”. The Ombudsman does not doubt the resident’s comments regarding her health and emotional wellbeing, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be better dealt with as a personal injury claim through the courts. The resident may again wish to consider taking independent legal advice if she wishes to pursue this option.
The resident wrote to this Service on 1 July 2022 and reported that she had experienced ASB problems during the past 3 years. The Ombudsman encourages residents to raise complaints with their landlords in a timely manner. This is because with the passage of time, evidence may be unavailable and personnel involved may have left an organisation, which makes it difficult for a thorough investigation to be carried out and for informed decisions to be made. Therefore, taking into account the availability and reliability of evidence, it is considered fair and reasonable for this assessment to focus on the landlord’s handling of the events from December 2020. Reference to the events that occurred prior to this has been made in this report to provide context.

The landlord’s response to the resident’s reports of anti-social behaviour, including the level of support provided by the landlord

The landlord’s ASB Policy states:
1. “We will undertake a risk assessment on the potential harm of the ASB on the person making a report”.
2. “We will tell you who will handle your ASB case and agree an action plan with you.”
3. “Where we become aware a person causing ASB needs additional support we’ll take reasonable steps to help them access support”.
4. “If you’re not happy with how your ASB complaint was handled…you can follow our complaints resolution policy or contact the local authority to see if they can review the case through the ‘community trigger’…”
The landlord’s Management Move Procedure states:
1. The procedure sets out how the landlord will respond to requests from residents who need to move urgently due to high risk to their personal safety.
2. The landlord does not provide emergency accommodation. Instead it will signpost residents to the local authority or to an appropriate agency, such as a refuge.
3. The landlord is only able to rehouse residents in exceptional circumstances as it does not have a transfer system.
4. The landlord will only agree a management move if there is a letter from either the Multi-Agency Risk Assessment Conference (MARAC) or the police stating the risk to personal safety warrants a move or there is evidence of an extreme/urgent medical need.
The landlord’s Allocations Policy states:
1. “We let the majority of our homes to nominations from the local authority (LA)”.
2. “We no longer maintain an internal waiting list. Existing tenants will need to apply to the LA if they wish to move to another property”.
The Ombudsman’s investigation was hampered by the lack of available records such as risk assessments, which the landlord stated had been deleted due to its data retention policy. The landlord stated that under its policy such records are deleted after 2 years. However, the Ombudsman has reviewed the landlord’s Document and Data Retention Schedule and this states that ASB casefile information is retained for 10 years after the case closure. This Service is also aware that the National Housing Federation (NHF) guidance on data retention recommends that ASB records are retained for 5 years or until the end of legal action. A recommendation has therefore been added for the landlord to provide appropriate training to its staff regarding its data and document retention rules.
The resident phoned the landlord on 16 December 2020 to report ongoing ASB from one of her neighbours. The resident stated that most of the ASB was in the communal area and included the neighbour indecently exposing himself. The resident explained that she had reported the ASB incidents to the police.
In response to the resident’s reports of ASB, the landlord phoned the resident on 30 December 2020 and advised that it had spoken to the neighbour and had told him not to approach or communicate with the resident. The landlord stated that it would write to the neighbour, however, this Service has not seen any evidence that this occurred.
The landlord’s ASB policy at the time stated that it would undertake a risk assessment and agree an action plan with the person reporting ASB. The Ombudsman has not seen any evidence that the risk assessment was undertaken or that an action plan was agreed with the resident. Therefore, this was inappropriate as the landlord had not followed its ASB policy. The ASB was regarded by the resident as serious enough for her to report it to the police and therefore a risk assessment should have been produced in order to assess the potential harm of the ASB on the resident and her son. The risk assessment would also have helped the landlord identify any support the resident may have needed.
The evidence shows that the neighbour had mental health issues and was under the care of the NHS community health care trust. It was therefore appropriate that the landlord contacted the community health care trust and the local authority regarding a fire incident involving the neighbour on 9 January 2021. The neighbour’s care worker informed the landlord that the neighbour’s flat was cluttered and there were discarded food items present. The care worker advised the landlord that it would be arranging a ‘deep clean’ of the flat.
During January 2021, there was further contact between the landlord, the neighbour’s care worker and the local authority. This was appropriate and in line with the landlord’s ASB policy, which states that it will take reasonable steps to help the person causing ASB to access support if the person needs additional support. It was also positive that the landlord demonstrated a multi-agency approach in order to address the ASB.
The landlord advised the resident on 5 February 2021 that it had completed a fire risk assessment in relation to the neighbour. This was appropriate as there had been a fire incident involving the neighbour on 9 January 2021.
The resident wrote to the landlord on 21 January 2021 to request a transfer because of the reported ASB. The Ombudsman has not seen any evidence that the landlord assessed whether the resident required urgent rehousing and communicated its decision to her. There is also no evidence of the landlord approaching MARAC or the police to check whether her situation warranted a management move.
The Ombudsman understands that the landlord had limited scope for rehousing its residents as it did not hold an internal transfer list and had to offer the majority of its properties to local authority nominations. However, the landlord’s Management Move Procedure states that it can rehouse residents in exceptional circumstances. Therefore, as the resident was seeking to be rehoused due to ASB, the landlord should have carried out an assessment to check whether the resident met the criteria for a management move. It was inappropriate that the landlord did not carry out an assessment and communicate the outcome of the assessment to the resident.
The landlord contacted the council regarding the resident’s request for an urgent transfer. On 5 February 2021, the council advised the landlord that it did not have a duty to provide “an emergency transfer” to the resident.
The resident continued to request urgent rehousing. For example, on 18 March 2021 her representative wrote to the landlord’s Chief Executive and advised that the resident was in danger because of the ASB. The representative also wrote to the landlord on the same day and specifically referred to a ‘management move’. The landlord responded positively following these emails and made the resident an offer of alternative accommodation on 19 March 2021. The landlord stated in a letter to one of the local MPs that it had made the offer due to exceptional circumstances. After being contacted by the landlord, the council also offered the resident a deposit so she could find a property in the private rented sector.
The resident refused the landlord’s offer of alternative accommodation as she felt it was too far from her support network. The landlord later confirmed in its letter dated 26 April 2021 that it had given the resident the contact details of the council’s emergency housing unit. The landlord had provided the information for use in the event the resident could no longer remain in the property. This was reasonable because the landlord’s Management Move Procedure stated that it did not provide “emergency accommodation” and instead would signpost residents to the local authority.
In terms of the action taken by the landlord to address the reported ASB by the neighbour, the evidence shows that the landlord continued to liaise with the neighbour’s care worker. The landlord also applied to the county court for an injunction with the power of arrest and an exclusion order on 9 April 2021. The evidence provided by the landlord’s Legal Team to support the application showed that it had safety concerns around the neighbour’s continued occupation of his flat, particularly following the fire incidents. Given these safety concerns, it was reasonable for the landlord to seek an order from the court.
The court refused the landlord’s application based on the evidence it had provided. In her email dated 27 April 2021, the resident questioned why the landlord had not requested a statement from her to support its court application. The evidence shows that the application and the supporting documents were prepared by the landlord’s Legal Team. There is no evidence that the Legal Team believed a statement from the resident was necessary to support its application. Therefore, in the Ombudsman’s view, the landlord was entitled to rely on the advice and expertise of its Legal Team and not request a supporting statement from the resident.
The resident also questioned why the landlord had not provided her with details of the community trigger (now called the ASB case review). The Ombudsman can confirm that the landlord’s website at the time provided details of how residents could apply to the local authority to use the community trigger. As the applications are made directly to the local authority, the information (including the signposting) on the landlord’s website was reasonable. However, in terms of best practice, it would have been helpful for the landlord to have highlighted the community trigger to the resident. The Government’s ASB Powers – Statutory Guidance for Frontline Professionals (January 2021) described the importance of making the ASB case review/community trigger as accessible as possible.
The landlord’s review panel which considered the resident’s complaint, concluded that the landlord could have done more to support the resident and taken formal action against the neighbour much earlier than it did. The landlord therefore offered the resident £300 compensation.
The Ombudsman’s remedies guidance which was in operation at the time stated that remedies in the range of £250-£700 were appropriate redress “for failure over a considerable period of time to act in accordance with policy…for example…to respond to antisocial behaviour”.
The landlord’s offer of £300 was within this range, however, in the Ombudsman’s opinion the amount offered was not quite proportionate to the failings identified by this investigation. The specific failings that the landlord’s offer did not adequately cover were:
1. The landlord did not carry out a risk assessment regarding the ASB or produce an action plan that was agreed with the resident.
2. The landlord did not carry out an appropriate assessment of whether the resident should be rehoused under its Management Move Procedure.
The Ombudsman has taken into account the landlord’s offer of compensation to attempt to put things right and the action it took in 2021. This action included taking legal proceedings, liaising with other agencies to enable the neighbour to receive support and offering the resident alternative accommodation. The Ombudsman has therefore found there was a service failure by the landlord on the basis that the amount offered by the landlord was not quite proportionate to put things right. Additional compensation of £100 has been ordered, which is in line with the Ombudsman’s remedies guidance for a service failure.

The landlord’s handling of safeguarding concerns it had about the resident’s child

The landlord’s Safeguarding Policy states:
1. Any staff member who has safeguarding concerns, where there is no immediate danger, should talk to their line manager and can speak to a ‘safeguarding champion’.
2. The landlord does not need the consent of the parent or guardian before referring a safeguarding case about a child to the local authority. However, the policy states that it is good practice to involve the parent or guardian when appropriate.
3. Within 24 hours the landlord’s Safeguarding Team will review a safeguarding alert that has been raised and will decide whether the matter should be investigated and reported to the local authority.
The resident sent a video of her son to the landlord on 22 March 2021. The resident later stated that she had sent the video to show the adverse impact that the neighbour’s behaviour was having on her son.
The landlord explained in its stage one reply on 26 April 2021 that the officer who received the video was concerned about the resident’s son as she believed the child had been inappropriately dressed in the communal area. The officer therefore discussed the video with her line manager and with the landlord’s Safeguarding Coordinator. As the officer had concerns about the child’s welfare, it was appropriate for her to seek advice from her line manager and the landlord’s safeguarding expert as per the landlord’s Safeguarding Policy.
After the video had been discussed with the line manager and the Safeguarding Coordinator, the landlord decided that it should refer the matter to the council’s MASH. The landlord therefore spoke to the resident on 26 March 2021 and advised her that it intended to send a safeguarding referral to the council. It was appropriate that the landlord contacted the resident to advise her of its intended action because this was again in line with its Safeguarding Policy. The policy stated that the landlord did not need the consent of the parent or guardian before referring a safeguarding case about a child to the local authority. However, the policy added that it was good practice to involve the parent.
The landlord made the referral to the Council on 26 March 2021. The resident then wrote to the landlord on 27 March 2021 to advise that her son had been crying in the video because the neighbour had been causing a disturbance. The resident also stated that her son had been inside the property rather than in the communal area when he was filmed and had not been wearing trousers because he was being ‘potty trained’.
The landlord stated in its final response letter dated 28 July 2021 that the officer who had received the video from the resident believed the child had been undressed in the communal area. The landlord stated that based on the best available information at the time, it had concluded that a precautionary referral should be made to the local authority’s safeguarding team. The landlord added that the decision to make the referral was based on advice from its Safeguarding Coordinator and from the local authority.
The Ombudsman appreciates that the resident later provided an explanation that satisfied the local authority and consequently that no action was deemed necessary by them. The Ombudsman also understands how upsetting the experience was for the resident. However, the Government’s guidance on safeguarding children, which was in operation at the time (Working Together to Safeguard Children, 2018) stated: “Anyone who has concerns about a child’s welfare should make a referral to local authority children’s social care…”. In this case, the evidence shows that the landlord had concerns about the welfare of the resident’s son and therefore it sent a referral to the local authority. The referral was made after the matter had been considered by its Safeguarding Coordinator.
The resident was concerned that the landlord had not carried out sufficient investigations prior to making the referral. However, the Government’s guidance referred to above did not stipulate the need for the referring agency to carry out an investigation prior to making a referral. In the Ombudsman’s opinion, the landlord therefore acted reasonably in the circumstances because:
1. It obtained advice from its Safeguarding Coordinator prior to sending the referral and having done so, it was entitled to rely on the advice from its safeguarding expert.
2. The landlord acted in accordance with the Government’s guidance referred to above by sharing its concerns with the local authority through a referral.
3. The landlord acted in accordance with its policy by contacting the resident to advise her of its intention to make the referral.

The landlord’s handling of the associated complaints

The landlord has a 2-stage formal complaints process. Stage one complaints are acknowledged within 5 working days and a full response is sent within 10 working days. If the resident is unhappy with the decision they can request a review of their complaint either by a review panel, which would consist of residents and the landlord’s staff, or a review by the landlord’s staff only.
If the resident chooses the option of a review by a panel, the policy states that the panel will respond with their decision within 10 working days.
The resident wrote to the landlord on 7 April 2021 and stated that she wanted to make a formal complaint. The landlord replied to the complaint on 26 April 2021, which was 13 working days after receiving the complaint. The time taken for the landlord to reply was therefore slightly outside its advertised timescale of 10 working days for stage one complaints. It was therefore a shortcoming that the landlord did not reply within its advertised timescale.
The resident wrote to the landlord on 27 April 2021 to advise the landlord that she was dissatisfied with its response. The landlord therefore sent the resident a review request form on 30 April 2021 and the resident returned the completed form on 11 May 2021. The landlord then contacted the resident on 13 May 2021 to confirm that the panel hearing would take place on 14 July 2021. The landlord therefore notified the resident of the panel hearing date within 2 days of receiving the review request form. The landlord had therefore contacted the resident about the panel hearing in a timely manner. It was, however, unreasonable that the panel hearing was not due to take place for another 2 months.
The Ombudsman’s Complaint Handling Code, which was in operation at the time, stated that stage 2 complaints should be responded to within 20 working days from the request to escalate. It added that any extensions to this should not exceed a further 10 working days without good reason. The Ombudsman has not seen any evidence explaining the reason for the delay in arranging the panel review meeting.
The Ombudsman recognises the benefits of panel reviews, such as complainants being able to attend to give a first-hand account of their complaint. This Service also accepts that some additional time may be required to convene a panel. However, the 2-month delay in convening the panel meant the resident had to wait longer before the landlord’s complaints process could be concluded.
The landlord wrote to the resident on 28 July 2021 to advise her of the outcome of the panel review meeting. This was 10 working days after the panel meeting took place. The time taken to write to the resident with the outcome of the panel meeting was therefore appropriate as it was within the timescale advertised in its complaints policy.
The Ombudsman has noted that although the landlord’s final response letter acknowledged its failings in the handling of the ASB, it did not identify any specific learning to avoid similar failings in the future. The Ombudsman’s Dispute Resolution Principles are: be fair, put things right and learn from outcomes. Therefore, the landlord’s lack of learning was inappropriate as it meant that it had not identified changes that would help it to improve its service.
In summary, the Ombudsman has found there was service failure in the landlord’s complaint handling because it did not use the process to identify and demonstrate learning from its failings and there was a delay in convening the review panel meeting. Compensation of £100 has been ordered, which was within the range specified in the Ombudsman’s remedies guidance for instances of service failure.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure by the landlord in its response to the resident’s reports of anti-social behaviour, including the level of support provided by the landlord.
In accordance with paragraph 42j of the Housing Ombudsman Scheme, the landlord’s handling of a subject access request submitted on the resident’s behalf is outside the Ombudsman’s jurisdiction.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of safeguarding concerns it had about the resident’s child.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure by the landlord in its handling of the associated complaints.

Reasons

Following the reports of ASB in December 2020, the landlord did not carry out a risk assessment or agree an action plan with the resident regarding the ASB. Although the landlord offered compensation, it was not quite proportionate to the failings identified in this investigation.
Subject access requests are outside of the Ombudsman’s jurisdiction because they fall within the jurisdiction of the Information Commissioner’s Office.
The landlord acted in accordance with its Safeguarding Policy and Government guidelines in making the safeguarding referral to the local authority. Prior to making the referral, it took advice from its Safeguarding Coordinator and the local authority and advised the resident that it intended to make the referral.
The landlord did not use the complaints process to identify and demonstrate learning from its failings and there was a delay in convening the review panel meeting.

Orders

The landlord is ordered within four weeks of this report to:
1. Write to the resident to apologise for the failings identified in this report.
2. Pay the resident a total of £400 for its response to the resident’s reports of ASB (this includes the £300 offered by the landlord if this has not already been paid).
3. Pay the resident £100 for the landlord’s handling of the associated complaints.

Recommendation

It is recommended that the landlord provides appropriate training to its staff on its data and document retention rules.