Lewisham Council (202204031)

REPORT

COMPLAINT 202204031

Lewisham Council

5 March 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 the landlord’s handling of the resident’s:
1. Reports of threatening behaviour, harassment, and anti-social behaviour (ASB).
2. Request for a priority management transfer and its decision to remove her priority banding from its bidding process.
3. Formal complaint.
The Ombudsman has also considered the landlord’s knowledge and information management.

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.
The resident’s complaint about the landlord’s handling of her request for a priority management transfer and its decision to remove her priority banding from its bidding process is outside of the Ombudsman’s jurisdiction. This is because, under paragraph 41(d) of the Scheme, the Ombudsman cannot consider complaints which, in the Ombudsman’s opinion, concern matters in respect of Local Housing Authorities in England which do not relate to their provision or management of social housing, or the management of dwellings which they own and let on a long lease. The appropriate body to consider the resident’s complaint about transfers, banding and bidding is the Local Government and Social Care Ombudsman (LGSCO). The resident took her complaint to the LGSCO, which has provided her with an outcome.

Background and summary of events

Background

The resident is the secure tenant of the property and lives with her children. The property is a 3-bedroom house, and the landlord is a council. The landlord has no vulnerabilities recorded for the resident, although she has told it and this Service that she is suffering from anxiety.
When bringing her complaint to the Ombudsman the resident said that her desired outcome was to be moved to an alternative property and to receive compensation. Unfortunately, the Ombudsman is not able to order a landlord to offer an alternative property to a resident. This is because, under our Remedies Guidance, the Ombudsman will not offer a remedy which would put matters right for the resident but would adversely affect other individuals or mean that the resident had received preferential treatment compared to others in the same situation.
Under the tenancy agreement residents “must not cause, nor allow members of your household or invited visitors to cause a nuisance or annoyance, or antisocial behaviour to other people in the neighbourhood”. This includes threats or and violence, and use of offensive language. The tenancy sets out the actions the landlord could take against a resident committing ASB, or allowing ASB to be committed, including seeking injunctions or orders for possession through the courts.
Under its ASB policy the landlord categorises types of ASB as either category A (more serious) or B (less serious). When a resident reports category A ASB the landlord will respond within 24 hours; it will agree an action plan and will agree how to keep in contact with the resident. It will also try to prevent further ASB by use of risk assessment or “‘Secure by Design’ techniques”, support victims and take enforcement action against perpetrators. This will range from warning letters to injunctions or eviction, provided there is “strong evidence to do this”. The landlord will work with partner agencies such as the police and will assist in gathering evidence. The policy says it has a noise app, and mobile CCTV camera which it will use when it “believes there is a strong likelihood of capturing evidence, which enables enforcement action.”
Within its complaints policy the landlord defines a complaint as “an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the organisation, its own staff, or those acting on its behalf, affecting an individual resident or group of residents.”
It operates a 3 stage complaints process. It will acknowledge stage 1 complaints within 5 working days and will respond within 10 working days, although if it requires more time, it will let the resident know and the reason why. If the resident is dissatisfied, they can escalate their complaint to stage 2; the landlord will acknowledge escalation within 5 working days and respond within 20 working days. If the resident remains dissatisfied, they can ask to escalate their complaint to the Independent Adjudicator at stage 3 of the process. It will acknowledge escalation within 2 working days and respond within 20 working days, but if it needs more time it will let the resident know.
The Housing Ombudsman’s Complaint Handling Code (the Code) sets out how a landlord should respond to complaints. Under paragraph 5.1 a landlord should respond to a stage one complaint within 10 working days. If it needs a further 10 working days in exceptional circumstances, it must contact the resident to explain this. Any further delay beyond this must be agreed with the resident. The landlord should address all elements of the resident’s complaint within its response (paragraph 5.8). It should escalate the complaint if asked to do so by the resident (paragraph 5.10) and should respond within 20 working days (paragraph 5.13).
The landlord also has a compensation policy which allows it to offer compensation for inconvenience and distress, time and trouble. The policy also says the landlord should offer an apology when it is at fault and should also consider practical and preventative measures as part of its remedies.
The Housing Ombudsman’s spotlight report on Knowledge and Information Management sets out 21 recommendations to help landlords improve their management of knowledge and information. These include developing an organisational key data recording standard to set out the minimum standard to which data must be entered in the landlord’s databases.

Summary of events

The resident said, in an undated statement, that on Saturday 24 April 2021 there was an altercation between her, a former resident of the street, and her neighbour. She said that the former resident and the neighbour were friends, and the neighbour’s family also became involved. She said the former resident and the neighbour were shouting and swearing at her while she returned home, and that the neighbour’s son threw a cup of drink at her. She called the police who attended. She also said she filmed some of the incident on her phone and sent the recording to the landlord.
The following day, the resident said, she was woken up by the sound of her front door being kicked. She said her neighbour’s son and daughter were kicking her door and arguing with her boyfriend who was also outside. She said they made threats against her children. She called the police who attended. The resident also said she recorded the incident on her phone and sent the recording to the landlord.
On Monday 26 April 2021 the landlord opened an ASB case and set out what the resident had reported to it, which differed to what she said in her later undated statement. The resident admitted punching the former resident. The landlord classed the incidents as ‘category A’ ASB. In an internal email that day the landlord said it had spoken to the resident and the neighbour, although it has not provided any account of its conversation with the neighbour to this Service.
The resident called the landlord on 27 April 2021 and reported that the previous evening the former resident’s son barged his way into the property with his dog or 2 dogs, which the landlord recorded in an internal email. In her later undated statement, the resident said that he had also threatened her and her children. She said he had previously threatened to ‘shank’ or stab her in January 2021, which she said she reported to the police and the landlord at the time (the landlord has not provided a record of this to this Service). The resident said she called the police who attended and said they would look for him.
On 10 May 2021 the resident called the landlord and said the former resident and her daughter “accosted” her in her driveway, and said the son was coming with his dogs. The landlord’s note said it advised her to stay in the property until the police arrived. In her later undated statement, the resident said that about half an hour after this, and before the police arrived, a group of boys or men were banging on her door or hitting her door with machetes and knives. She said the former resident was there in a car, and the group ran off when the police arrived or hid inside the neighbour’s house.
In an internal email on 14 May 2021, the landlord said the resident reported that some men kicked down the door to a neighbouring property, threatened the occupants with a sword, caused criminal damage, and stole personal possessions. It said it was believed the men had meant to target the resident but had gone to the wrong property. The landlord said it advised the resident that an emergency management move might be the best option for her. It also asked in its email whether the former resident could be banned from the area.
The resident called the landlord on 11 August 2021 and asked if there was any update from the police about the neighbour. The landlord said it had not heard anything from the police. She called the landlord again on 4 November 2021 and said she had seen the former resident on her street from her CCTV camera, and said she was wanted by the police. She said she was on medication prescribed by her doctor for anxiety and was scared. The landlord said it told her to call 999 if she saw the former resident.
On 16 December 2021 the landlord emailed the police and asked it to disclose information it had about the ASB, and to assess whether the resident was at risk in the property. The police replied the following day and said they were unable to assess the risk.
On a date not known to this Service the resident contacted her MP. The MP wrote to the landlord on 13 December 2021 (no copy has been provided to this Service). The landlord replied on 31 January 2021 and said it was “not made aware of the specific issues” raised in the resident’s letter and so had not been able to investigate. It had since contacted the police for an update and would support any action they take. It said it would also raise the matter at the next community Multi Agency Risk Assessment Conference (MARAC).
The resident called the landlord on 7 March 2022 and said that she had made a complaint about how the police had handled her case. She also asked about her ASB case being referred to MARAC. She called again on 23 March 2022 and asked the landlord for an update. It said it could only consider an emergency move if it received information from the police that she was in danger. It also highlighted that she had not reported any further ASB since May 2021. Following the call, the landlord emailed the police to ask for an update.
On 22 April 2022 the landlord gave a summary of the ASB case in an internal email, in which it said the police had taken the lead, and that there had been “insufficient evidence for [it] to take any action at the time of the incident, and due to the severity of the allegations the Police were and remain the lead agency”.
The resident used the landlord’s online complaints form to make a stage 1 complaint on 11 May 2022 (the first complaint), which was about:
1. No action having been taken by the landlord or its named member of staff, despite her having reported 4 ASB incidents and having police reference numbers.
2. The landlord having closed her case without any action, and that it had told her it would not take any action until it had received information from the police.
3. Having been told a different member of staff would take the lead on her ASB case, but she had not been contacted.
4. The landlord not replying to her MP’s or councillor’s enquiries about her case.
The following day the landlord acknowledged the first complaint, and on 20 May 2022 arranged a call with the resident to discuss her complaint, which took place on 24 May 2022. The resident used the landlord’s online complaints form again on 27 May 2022 to make a complaint (the second complaint). She repeated her previous complaint and said she had spoken to the landlord twice. During the second call, on 26 May 2022, she said she wanted to move, but it said it could not help with that and said if the police made an arrest it would apply for a restraining order (no evidence of this call has been provided to this Service).
On 9 June 2022 the landlord acknowledged the second complaint and provided its stage 1 response on 21 June 2022. It said:
1. The resident’s complaint was about a named member of staff. It had discussed this with her and had agreed to assign her ASB case to a different member of staff, which it did.
2. It had made applications previously to increase her banding, but these were not successful, as it needed more information from the police. As such it was not at fault and her complaint was not upheld.
3. It wanted to make sure it had done everything it could to help.
4. “If this letter has not successfully addressed your concerns, you can contact [us] to tell us why. [It] will work with you to deal with any unresolved issues.”
The landlord emailed the resident on 28 June 2022 to acknowledge her complaint escalation. It said it had spoken to her the previous day when she had requested this (no evidence of this call has been provided to this Service).
On 22 July 2022 the landlord provided its stage 2 response, in which it:
1. Said the resident believed it should be doing more to support her to move.
2. Explained it was not able to change her banding to move as this was not part of its function as the landlord.
3. Said she could contact it if it had not “successfully addressed” her concerns, and if after this the complaint was still “unresolved” she could ask for a review by the Independent Adjudicator at stage 3 of its complaints process.
The landlord emailed the resident on 25 July 2022 and said it had spoken to her the previous week about her complaint (no evidence of this has been provided to the Ombudsman). It confirmed how she could escalate her complaint. On an unknown date the resident asked for her complaint to be considered at stage 3. The landlord has not provided evidence of this request, or any evidence the escalation was acknowledged.
On 11 October 2022 the landlord provided its stage 3, final response in which it:
1. Set out the background to the complaint and confirmed it had closed the ASB case in November 2021.
2. Said after the resident raised her complaint it had reviewed her ASB case and said it would raise it at MARAC, but this was not appropriate as MARAC dealt with domestic abuse cases. However, in May 2022 it appointed a new member of staff to her re-opened ASB case, but at that time concluded “in the absence of ongoing ASB there is little it can do”.
3. Reasoned that if the police had arrested the former resident and her son, the outcome of either prosecution or bail conditions would have protected the resident. Therefore, it was reasonable for the landlord not to have acted immediately.
4. Explained the failings of the police put it in a “difficult position [as it] remained extremely concerned for [the resident and her] family’s safety.”
5. Accepted that it should have done more to get the resident a move to a different property.
6. Made recommendations that it should apologise to the resident for its failings, make an application for emergency rehousing, and pay £250 compensation.

Events after the end of the landlord’s complaints process

The resident called the landlord on 2 November 2022 and said the recommendations from the stage 3 response had not been carried out. The landlord wrote to her that day to apologise, update her about her emergency housing application, and ask for bank details to pay compensation. The following day the landlord emailed the police and asked for an update and sent an internal email to request that the compensation be paid to the resident.
On 16 November 2022 the landlord made an emergency housing application, however, due to a technical issue this was not received. It remade the application on 25 January 2023, which was approved on 14 February 2023.
The police replied to the landlord on 7 February 2023 and said it had no further information and the resident’s case had been closed. On 9 February 2023 the landlord reviewed the ASB case in internal emails. It said it did not carry out a risk assessment at the time of the incidents as the police had not done this and it had been waiting for evidence from the police. It also said, “No advice of potential injunctions / Court Orders was given at [the] time because [it] did not know where [the] perpetrator lived and…[it] was waiting for supporting evidence from the police.”
The resident has told the Ombudsman that the police advised her to get a CCTV camera, which she did, and that it would mark her address as high priority response if she called 999. She still feels unsafe in the property and suffers from anxiety, which she is receiving help for from her doctor.

Assessment and findings

The landlord’s handling of the resident’s reports about threatening behaviour, harassment, and ASB

From the evidence there appears to have been an ongoing neighbour dispute prior to the ASB reported in 2021. It is not the Ombudsman’s role to determine whether ASB took place, or the level or seriousness of any ASB. Instead, it is this Service’s role to consider the landlord’s response to reports of ASB, whether it took appropriate action under its ASB policy, and whether its actions were fair in all the circumstances. As the resident’s complaint was regarding the landlord’s response to incidents she reported in April 2021, this investigation has not considered matters before this date.
The first two ASB incidents took place over a weekend in April 2021 and were reported to the landlord on the first working day, when it recorded it correctly as category A and opened a case. It spoke to the resident and the neighbour the same day in line with its ASB policy. It would have been helpful if the landlord had provided an account of its conversation with the neighbour, as it is not clear what was said, whether the allegations were denied, or whether any type of verbal warning was given.
The resident reported a third incident the following day, although this involved the son of the former resident and so the action the landlord could take would have been limited as it was not clear whether he was a visitor to the neighbour at the time. This is also likely to be true for the January 2021 incident which took place near the property. However, the landlord failed to detail what, if anything, it did do following the ASB report.
After the resident reported the fourth incident in May 2021, the landlord did not appear to take any action at all, despite this incident being more serious than the previous as it involved weapons. There is no record of the landlord speaking with the neighbour or carrying out any enquiries, which was a failing. Only after a fifth incident, where a neighbour was targeted, possibly by mistake, in a violent aggravated burglary, did the landlord then suggest an emergency move. However, this was something it would need to apply for and was not something it could grant itself under its function as a landlord.
Despite the resident chasing the landlord for updates, and its policy stating it would work with partner agencies, it did not contact the police for information until 16 December 2021, some 7 months after the spate of ASB incidents. This was an unreasonable delay, particularly considering it was only at this time that the landlord asked the police to assess any risk to the resident. The landlord failed to carry out a risk assessment in April or May 2021 as required under its policy, or to create an action plan, or to keep the resident updated.
The landlord said in internal emails that the police were the lead agency, and it was waiting for information from the police. Following its disclosure request, the landlord failed to chase the police for the information until 23 March 2022. In its stage 1 response on 21 June 2022, it said it needed more information from the police, but it did not then contact them again until 3 November 2022, after its stage 3 response. The landlord failed to follow its policy to work with the police, to try to gather evidence or to consider any of its options to tackle ASB available under its policy.
Instead, the landlord appears to have relinquished any responsibility for preventing ASB, supporting victims, or taking enforcement action against perpetrators. It failed on all 3 headings under its policy. It did not carry out a risk assessment or consider what steps it could have taken to make the resident more secure, or to feel more secure, in her home. It did not consider whether extra security measures could have been taken, such as improving the locks on the resident’s front door which had been targeted. It did not consider installing CCTV to gather evidence, as its policy specifically allowed for. It did not suggest she get a CCTV camera (the police did) or suggest any other evidence gathering.
Although the landlord was correct that the police were responsible for investigating crime it did not support the resident. It also failed to speak to the neighbour, who was its tenant, aside from on the first occasion. It did not give any warnings or consider whether it should take further action. It specifically said it did not consider legal actions as it did not know where the perpetrator lived, meaning the former resident, but failed to acknowledge that the neighbour was also responsible for her visitor’s actions under her tenancy agreement.
The landlord’s sole decision was to rely on the police to provide evidence to enable it to apply for, not provide, an emergency move which it had no guarantee of being able to achieve. Within its stage 1 response it said it wanted to do everything it could to help but it had done nothing. The landlord completely missed the purpose of its ASB policy and there was severe maladministration. As a result, the resident suffered distress, worry, inconvenience, time and trouble. To reflect the impact, in line with the Ombudsman’s guidance on remedies, an order has been made that the landlord pay compensation of £1,500.

The landlord’s handling of the resident’s formal complaint

The resident made the first complaint on 11 May 2022 which the landlord acknowledged within its policy timeframe. While it called the resident to discuss the complaint, it failed to provide a response within its 10-working day timeframe, which led the resident to make the second complaint. The landlord failed to acknowledge the second complaint within its 5 working day timeframe. It provided its stage 1 response on 21 June 2022, which was also outside of its 10-working day timeframe and was a further failure and breach of paragraph 5.1 of the Code.
Within its stage 1 response the landlord failed to fully address the complaint in breach of paragraph 5.8 of the Code; it did not respond to the resident’s complaint that it had taken no action following her reports of ASB. It also failed to clearly explain how the complaint could be escalated.
The landlord provided its stage 2 response on 22 July 2022 which was within its 20-working day timeframe, however it again failed to address its handling of the ASB. While it did explain how she could escalate her complaint, its wording gave the impression that this could only be done after she had again discussed her complaint with it. The landlord’s responses at stage 1 and 2 should have been clearer on how the resident could escalate her complaint.
As the landlord has not provided evidence of when the resident asked to escalate her complaint to stage 3, the Ombudsman cannot say how long it took to do this. It has also failed to show it acknowledged the complaint in breach of its policy. It also provided its response on 11 October 2022 after a significant delay, which was in excess of its 20-working day timeframe and was a failure.
While the landlord said it would apologise for its failings in its handling of the resident’s request to move, its apology provided on 2 November 2022 was short and insincere. Aside from applying for an emergency move, the landlord also failed to consider any other practical remedies and did not follow its remedies policy, although did offer £250 compensation.
In relation to the failures identified, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes, as well as our own guidance on remedies.
The landlord’s compensation offer related to its handling of the resident’s request to move. It did not identify or offer to remedy any of its complaints handling faults which was a further failing. The landlord had not demonstrated it had been fair, tried to put things right or had learnt from the outcome. Overall, there was maladministration, which cause delays, frustration, time and trouble to the resident in pursuing her complaint. To reflect this an order has been made that the landlord pay £500 compensation.

The landlord’s knowledge and information management

A landlord should have systems in place to maintain accurate records of repair reports, responses, inspections, investigations, and communications. Good record keeping is vital to evidence the action a landlord has taken and failure to keep adequate records indicates that the landlord’s processes are not operating effectively. The landlord’s staff should be aware of a landlord’s record management policy and procedures and adhere to these.
During this investigation there has been a lack of evidence which would have assisted the Ombudsman, and this has been highlighted within this report. Whether the landlord did not record this evidence or failed to provide it to this Service, this is evidence that its policies, and processes, are not operating effectively. In addition, its delays in trying to obtain information from the police, and its lack of enquiry into other forms of ASB evidence gathering demonstrate a culture where knowledge and information is not valued, and this is a further failing. There was service failure, which hampered the landlord’s and the Ombudsman’s investigations. To reflect the further inconvenience, time and trouble caused to the resident the landlord has been ordered to pay £100 compensation.

Determination (decision)

In accordance with Paragraph 52 of the Scheme, there was severe maladministration in relation to the landlord’s handling of the resident’s reports of threatening behaviour, harassment, and ASB.
In accordance with Paragraph 52 of the Scheme, there was maladministration in relation to the landlord’s handling of the resident’s formal complaint.
In accordance with Paragraph 52 of the Scheme, there was service failure in relation to the landlord’s knowledge and information management.
In accordance with Paragraph 41(d) of the Scheme, the landlord’s handling of the resident’s request for a priority management transfer and its decision to remove her priority banding from its bidding process is outside of the Ombudsman’s jurisdiction.

Reasons

There was severe maladministration in the landlord’s handling of the resident’s reports of ASB as the landlord did not follow its ASB policy. It failed to consider how it could have prevented further ASB, supported the resident and taken enforcement action against the perpetrator. It relied on the police providing information to assist it in applying for an emergency move for the resident but failed to adequately chase the police for this information and failed to take any other steps to address the ASB.
The was maladministration in the landlord’s complaints handling as it did not respond to the first complaint and exceeded its timeframes in acknowledging and responding to the second complaint. It did not make it clear how the resident could escalate her complaint and it took an unreasonable amount of time to respond to the stage 3 complaint.
There was service failure in the landlord’s knowledge and information management as it did not record or provide evidence of documents, emails, or conversations it had which would have assisted its and the Ombudsman’s investigation. Its approach to evidence and information gathering also showed it placed little importance on its information management.

Orders

Within 4 weeks of the date of this report, the landlord is ordered to:
1. Provide an apology to the resident from the chief executive for the failures detailed in this report.
2. Pay directly to the resident compensation of £2,100, made up of:
  1. £1,500 for the distress, worry, inconvenience, time and trouble caused to the resident by its failings in handling her reports of ASB.
  2. £500 for the delays, frustration, time and trouble caused by its complaints handling failings.
  3. £100 for the further inconvenience, time and trouble caused by its knowledge and information management failings.
3. Hire a security or crime prevention specialist and agree an appointment date with the resident to carry out a security survey and provide a report. The landlord is to carry out any suggested security upgrades within 4 weeks of the date of receiving the specialist’s report and to provide a copy of the report and evidence of the works to this Service.
4. Arrange further training for its complaints handling staff focusing on response timeframes and escalations. The landlord is to provide details of this training, including when it will take place, to this Service.
5. Amend its template stage 1 and 2 response letters to make it clear the resident can ask for an escalation if they remain dissatisfied.
6. Carry out a self-assessment against the recommendations within the Housing Ombudsman’s spotlight report on Knowledge and Information Management and provide the results of this assessment to this Service.
7. Carry out a case review of this complaint and report the outcome of this review to its board.
8. Confirm compliance with these orders to this Service.