Birmingham City Council (202210771)

REPORT

COMPLAINT 202210771

Birmingham City Council

17 November 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

1. The complaint is about the landlord’s handling of the resident’s reports of anti-social behaviour (ASB) and racial abuse.
2. The Ombudsman has also considered the landlord’s complaint handling.

Background

3. The resident is a secure tenant of the landlord. He lives in a flat in a converted house.
4. The resident reported an incident to the landlord where he was racially abused by a neighbour on 11 May 2022. The incident occurred on 29 March 2022. He informed the landlord a similar incident of abuse had happened before.
5. The resident brought his complaint to the Ombudsman on 21 August 2022. He said he wanted the landlord to provide an appropriate response to his complaint, as he felt vulnerable to violence.
6. The resident called the landlord on 10 October 2022 and reported the incident again, stating no action had been taken in relation to the incident. The landlord advised the resident that racial abuse was a crime and should be reported to the police. The landlord said if the police did not have evidence to investigate, it also could not investigate as criminal matters are police led.
7. The resident informed the landlord he did not wish to involve the police, and confirmed there was a witness to the incident. He also advised the ASB issues had been ongoing for 4 years and another incident of racial abuse occurred in June 2022. The landlord advised the resident it would not be taking any further action due to lack of evidence and closed the ASB case.
8. The resident raised a complaint on 18 October 2022. He said he was unhappy the case was closed without investigation, and asked the landlord to do so.
9. The landlord provided its stage 1 response on 25 October 2022. It said it was satisfied closing the resident’s ASB case was the correct course of action, as it believed the incident that happened in March 2022 was not reported until October 2022, which made it difficult to investigate. The landlord stated the police had confirmed the case was closed due to a lack of evidence, and the perpetrator left the property in July 2022, with no further incidents reported.
10. The resident was unhappy with this response and requested the landlord investigate his reports of ASB. He disputed the landlord’s position that too much time had passed to investigate, and stated this left little time for victims to assess the situation and collect evidence. The resident reiterated that the racial abuse happened on more than one occasion and that there was a witness to it.
11. The landlord provided its stage 2 response on 15 November 2022. It said it had reviewed the case, and would reopen it to carry out an investigation into the allegations made. It advised the resident it would be in touch in due course.

Assessment and findings

Scope of investigation

12. The resident has referred to a history of ASB, beginning in 2018, shortly after he moved into his property. The Ombudsman encourages residents to raise complaints with their landlords in a timely manner so that the landlord has a reasonable opportunity to consider the issues and reach an informed conclusion on the events which occurred. Residents are encouraged to bring the unresolved problems through to the Ombudsman after the landlord’s complaints process, as this will enable any areas of potential service failure to be identified and addressed.
13. As issues become historic, it becomes increasingly difficult to unpick the events that took place and how matters were handled. Evidence becomes difficult to obtain and authenticate, and accounts become less reliable. As such, this investigation will not consider the landlord’s handling of the events prior to 2022 as they were not raised as a formal complaint until October 2022 which is more than six months after the events occurred.
14. There is an element of this complaint which is outside the scope of the Ombudsman’s investigation. This concerns issues raised by the resident in  March 2023 about damage to the resident’s personal belongings, allegations of violence, and the resident’s use of CCTV. While the Ombudsman has been provided with case notes relating to some of the issues regarding the resident’s personal belongings, in the interest of fairness, the scope of this investigation is limited to the issues raised during the resident’s formal complaint. This is because the landlord needs to be given a fair opportunity to investigate and respond to any reported dissatisfaction with its actions prior to the involvement of this service. If the resident is unhappy with the landlord’s handling of his ASB reports relating to events that occurred in 2023, he should raise a complaint with the landlord about this. The resident may be able to refer the new complaint to the Ombudsman if he remains dissatisfied once he has received the landlord’s final response to his complaint.

Policies and Procedures

15. The landlord’s ASB policy categorises hate incidents, harassment and verbal abuse based on race as the most serious type of ASB. It states residents will be contacted within 24 hours.
16. The policy further states that an action plan will be completed, to include ‘a plan for frequency and method of future contact to allow complainant’s expectations to be managed’. Interviews with perpetrators and witnesses should also be carried out where possible.
17. The policy details options available to the landlord, such as warning letters and legal action. It states that serious cases, such as hate crime, will be monitored monthly within multiagency ‘Safer Community Group’ meetings.
18. The landlord’s complaint policy states it will contact complainants within 48 hours of a complaint being raised, and provide a response in 15 working days at stage 1, and 20 working days at stage 2.

The landlord’s handling of the resident’s reports of ASB and racial abuse

19. When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only 3 principles driving effective dispute resolution:
    1. Be fair- treat people fairly and follow fair processes;
    2. Put things right, and;
    3. Learn from outcomes.
20. The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the resident. If it is found that a failing did lead to an adverse effect, the investigation will then consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes’.
21. In line with its ASB policy, the landlord should have acknowledged the incident within 24 hours. The landlord did so, and advised the resident to await a response. Following this, the landlord should have considered creating an action plan, conducting interviews with perpetrators and witnesses where possible and completing a risk assessment.
22. Having reviewed the evidence available of the actions taken by the landlord from the date of the resident’s reports of ASB made in May 2022 until the final response on 15 November 2022, it is not apparent the landlord took any action in relation to the resident’s report of racial abuse. This is of concern to the Ombudsman, given the nature of the incident. This was a failing on the part of the landlord, as it failed to take appropriate action as detailed in its ASB policy, which contributed towards the resident’s feeling of distress as he advised this Service he felt ‘vulnerable to violence’.
23. On 10 October 2022, the resident reported the incident to the landlord again. The landlord advised the resident it could not investigate the incident without it being reported to the police, and pending the results of their investigation. This was not appropriate and not in line with the landlord’s ASB policy. Whilst the policy does reference multiagency involvement with organisations such as the police, this did not preclude the landlord from investigating the resident’s allegations and taking appropriate action.
24. Furthermore, during the telephone call from 10 October 2022, the resident informed the landlord the ASB had been ongoing for a number of years and the a similar incident of racial abuse occurred again in June 2022. The landlord subsequently completed a risk assessment, assigning the case the most serious risk. It identified the resident had no support in place at home and was ‘extremely’ affected on a day to day basis by the ASB. This was appropriate and in line with the ASB policy.
25. The landlord then advised the resident it would not be taking any further action due to a lack of evidence. This was not appropriate. Whilst the Ombudsman recognises that a lack of immediate evidence may have presented a challenge in investigating the ASB, the resident had advised the landlord of the impact the situation had on him and the landlord did not take any action to address the resident’s concerns. Though the landlord did complete a risk assessment, it reasonably ought to have carried this out in May 2022 following the resident’s first report of the incident. Further to this, it is unclear what follow up action the landlord took when it had completed the risk assessment, other than closing the case. This was a failing on the part of the landlord, which likely would have contributed towards the resident’s feeling his concerns were going unheard, and of vulnerability.
26. Overall, there were several failings in the landlord’s handling of the resident’s reports of ASB and racial abuse, which have caused him frustration, distress, and time and trouble pursuing the matter. A finding of maladministration is made, and orders are made below in line with the Ombudsman’s dispute resolution principles to ‘put things right’ and ‘learn from outcomes’. Compensation is ordered in line with this Service’s remedies guidance, where there was a failure which adversely affected the resident, and the landlord has failed to acknowledge its failings and had made no attempt to put things right.

The landlord’s complaint handling

27. The resident formally raised a complaint on 18 October 2022. The landlord provided its stage 1 response 5 working days later on 25 October 2022, adhering to the timeframe stipulated in its complaint policy.
28. However, in the response the landlord stated the resident reported the racial abuse in October 2022, which made it difficult for it to investigate, hence why it closed the case. This was incorrect. From the evidence provided, it is clear the resident reported the incident in May 2022, and an acknowledgement was provided by the landlord the following day. The landlord also stated the police had confirmed the case was closed due to a lack of evidence, however the resident has advised this was also incorrect as he did not report the incident to the police. Therefore, the landlord has appeared to rely on inaccurate information in its stage 1 response, and failed to address the resident’s substantive issue. This was a failing on the part of the landlord.
29. The stage 2 response was provided on 15 November 2022, 15 working days after the resident escalated his complaint. This was within the timeframe stipulated in the landlord’s complaints policy.
30. In the stage 2 response, the landlord said it understood the resident did not feel listened to, therefore it had asked for the case to be reopened so it could investigate the resident’s allegations. It advised it would be touch with the resident in due course. While this shows that the landlord was taking some steps to try and put things right for the resident and address his concern, the landlord did not acknowledge any of the failings highlighted in this report. Further, from the evidence provided it does not appear that the landlord then took any action to investigate the resident’s report of racial abuse. This was a failing in the landlord’s complaint handling to monitor promised actions.
31. Finally, in the stage 2 response the landlord incorrectly gave the resident referral rights to the Local Government and Social Care Ombudsman. The landlord’s complaint policy states that the Housing Ombudsman is the correct alternative dispute resolution body to refer complaints regarding housing to. This Service would expect landlords to provide residents with accurate information regarding referral rights, as giving incorrect information could be detrimental and contribute to unnecessary time and trouble taken by resident in pursuing their complaints.

Determination

32. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of the resident’s reports of ASB and racial abuse.
33. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its complaint handling.

Orders

34. Within 4 weeks of the date of this determination, the landlord must:
    1. Pay the resident a total of £800 compensation for the failings identified (compromised of £500 for the failings in its handling of the ASB, £200 for the resident’s time and trouble in pursuing the matter, and £100 for the failings in its complaint handling).
    2. Review its handling of the case to identify the reasons for the failings identified above, and what action has/will be taken to ensure ASB reports are actioned appropriately in future, in line with its ASB policy. It should write to the Ombudsman with details of the outcome of this review.
    3. Review its handling of the resident’s complaint, re-training staff if necessary to ensure complaints are adequately addressed before closure. The landlord should also ensure responses include the correct Ombudsman body referral rights. It should write to the Ombudsman with details of the outcome of this review.