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Bristol City Council (202012416)

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REPORT

COMPLAINT 202012416

Bristol City Council

27 September 2021


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 response to the resident’s reports about:

a)     The condition of her neighbour’s garden.

b)     A telephone call she had with a staff member.

  1. This investigation has also considered the landlord’s complaints handling.

Background and summary of events

Background

  1. The resident is an assured tenant of the landlord (a Local Authority) at the property, a two-bedroom terraced house. The complaint involves the resident’s dissatisfaction in relation to a neighbour’s property, also a tenant of the landlord.
  2. The landlord’s complaints policy in place at the time of the complaint under investigation included a two stage complaints process, with response timescales of 15 working days at stage one and twenty working days at stage two. The policy lists those complaints that will be considered as exempt from the complaints process, including complaints that have not been made in a timely manner, complaints that relate to illegal activities or court proceedings, complaints where a separate appeal route is appropriate or complaints involving negligence claims. With regards to complaints about the landlord’s management of data, the complaints policy confirms that the complainant can go directly to the Information Commissioner’s Office (ICO), or they can go to the ICO upon completion of the internal complaints process. 
  3. The landlord has confirmed that it does not have any vulnerabilities listed on the resident’s case file. The resident has, however, confirmed to this Service, in an email dated 20 April 2021 that she is registered disabled and expressed concerns that the landlord did not take this into account when handling her case.
  4. In its correspondence with both the resident and with this Service, the landlord has confirmed that its services were affected by the ongoing impact of COVID-19 at the time of the complaint. It has confirmed that, at short notice, the majority of its staff were required to work from home, with a corresponding impact on service delivery. The landlord has confirmed that the estates team that handled the resident’s reports about her neighbour were one such department that were effected in this way.

Summary of events

  1. The resident reported the condition of her neighbour’s garden to the landlord on 23 March 2020, which she considered to be in an ‘appalling’ state, with ‘all sorts of rubbish’ and ‘rats breeding’ within rugs that had been left there. The landlord responded to the resident on 25 March, saying that it would inspect as soon as it was able in consideration of restrictions to its service delivery due to COVID-19. In response, the resident requested that the landlord send a letter to the neighbour in relation to the garden.
  2. On 12 April 2020, the resident contacted the landlord again in relation to the neighbour’s garden. Again, she requested that the landlord send a letter to address the issue. The landlord confirmed to her, on 14 April, that her email (and supporting photo) had been forwarded to the resident’s Housing Officer (HO).
  3. The resident reported the neighbour’s garden for a third time on 12 May 2020. She raised specific issues about ‘vermin from the carpet’, ‘leftover food’ and her concerns that hotter weather might result in ‘disease’. On 13 May 2020, the landlord wrote to the neighbour, requesting that they remove any carpeting in their garden by 29 May; the landlord also confirmed to the resident that this letter had been sent.
  4. On 9 June 2020, the resident again emailed the landlord. She said that the neighbour had ‘tidied up some of the mess but they’ve hid it all under the carpet’. She requested a further letter be sent to the neighbour on this issue. The resident sent a further email on 23 June, requesting a response to her email of 9 June.
  5. The landlord wrote to the neighbour on 29 June 2020. It confirmed that the rubbish that had been reported to it would constitute a breach of tenancy and requested that this be removed by 10 July. On the same date, the landlord emailed the resident, apologising for the delay in responding and confirming that it had not yet been able to inspect the neighbour’s garden.
  6. The point at which the resident submitted a complaint in relation to the neighbour’s garden is not clear, however, the landlord has confirmed that it sent her a letter refusing her request for a stage one complaint on 10 July 2020. This letter was not available to this investigation, though later correspondence confirms that the complaint had been ‘denied’ at this point.
  7. On 13 July 2020, the resident contacted the landlord to say that carpets and black plastic sheeting remained in the neighbour’s garden, despite the landlord’s deadline of 10 July.
  8. On 20 July 2020, the resident emailed the landlord, requesting ‘dual housing benefit’ so that she could temporarily move closer to family for support purposes. She referenced the ongoing issues from the neighbour as the reason for her seeking to move away. In a further email of 28 July, she said that her mental and physical health was deteriorating as a result of this issue.
  9. The resident and the HO had a telephone discussion on 31 July 2020, following which the HO emailed the resident to confirm that she had been signposted to the Benefits Team for her request about Housing Benefit. It also confirmed that it had written twice to the neighbour and the next potential step would be legal action, though this would not likely proceed due to concerns about such action being ‘disproportionate’. It nonetheless agreed to discuss this internally.
  10. The resident responded to the landlord’s HO on the same date. She said that she had ended their telephone conversation as she had been ‘disgusted’ that the HO had discussed her confidential information whilst in the presence of his family. She said that the HO had not let her speak during the conversation and that he had paid no attention to the impact the issues had on her. She said that she had reported the neighbour’s garden on multiple occasions, yet the letter she had received had only referred to one such report having been passed on. She also said that she did not believe that legal action would be disproportionate in the circumstances.
  11. On the same date (31 July 2020), the resident complained about the HO in a separate email to a different landlord officer. She said that the HO had been given information that she had requested be kept confidential, that he had not given her time to respond during the call and that she had ended the call when he had begun speaking to his family. She requested a change in HO and ‘more sound advice on a temporary move for me’.
  12. Internal landlord correspondence from 3 August 2020 confirmed that the resident’s complaint had now been escalated to stage two of its process. This correspondence also said that it was not clear what confidential information the resident had meant in her most recent email of 31 July (above). In any case, the landlord acknowledged the broader issues that had been raised about staff use of telephones. This was confirmed to the resident in an email of 4 August, in which the landlord thanked her for raising the issue about use of data whilst landlord staff members were required to work from home.
  13. The landlord sent the neighbour a further letter on 20 August 2020 in relation to the garden, which would be inspected on 4 September. The landlord’s HO emailed the resident on the same date to confirm that the letter had been sent. The resident responded to say that she had withdrawn the HO’s right to contact her and that any further contact from him would be considered ‘harassment’.
  14. The resident has also provided the Ombudsman with evidence of three emails that she had returned to her that date (20 August 2020), each addressed directly to different landlord officers (including the HO) and each sent back to her between 11:11 and 11:23 on that date. These returned emails state that the resident’s emails had been rejected because ‘the recipient’s email provider rejected it’.
  15. The landlord emailed the resident on 25 August 2020, in relation to her reports about the telephone conversation of 31 July. It said that it was denying the complaint on the basis that its officer had not acted inappropriately. It based this decision on the subject matter of the call, which it did not consider to have been ‘sensitive’ and central guidance on COVID-19, which had required staff to work from home at short notice. The landlord said that staff had been required to work full time from home and that this had presented various challenges, including unsuitable accommodation and childcare responsibilities. The landlord confirmed that staff had been advised, ‘where possible’, to make sensitive phone calls when household members were not present. It then proceeded to offer a definition of what amounted to a ‘sensitive’ call.  The landlord has confirmed to this Service that this email amounted to its stage one response in relation to the telephone call issue.
  16. The landlord inspection of the neighbour’s garden took place as scheduled by the HO on 4 September 2020. No tenancy breach was identified and the HO took photographic evidence of this during the inspection. The landlord confirmed this finding to the resident on 17 September, also confirming that it would be taking no further action on the case.
  17. The landlord sent its final response on 13 October 2020. It said that it had inspected the neighbour’s property and was satisfied that it was in an ‘acceptable’ condition. It acknowledged that there had been a delay in arranging this inspection but explained that the impact on services due to COVID-19 had restricted home visits to more serious issues, which was not the case in this instance. The landlord explained that staff members were required to work from home and that it was satisfied that the resident had not been overheard by the staff members household during the telephone conversation of 31 July 2020 and, in any case, the subject of the discussion had not been ‘sensitive’. The landlord also concluded that the resident’s email had not been blocked, requesting any evidence she might have to the contrary.
  18. The resident confirmed to this Service, on 20 April 2021, that she was now living away from her home due to the ‘anxiety’ she had experienced and the lack of support she had received from the landlord. She said that she had been attacked three times by her neighbour, which had been reported to the landlord but not responded to. She also said that the last action taken by the landlord had been to attempt to carry out a good neighbour agreement, but that she had declined. She also provided the emails that had been returned to her on 20 August 2020, she said that these had been blocked by the staff members involved and that this had been denied by the landlord.
  19. In an email to the Ombudsman dated 30 April 2021, the landlord confirmed that it had logged the confidentiality complaint separately to the neighbour issue, but that both complaints had been responded to as part of the same stage two response. Regarding the emails that the resident had said to have been deliberately blocked, the landlord said that it had requested such evidence but not received anything. The landlord also confirmed that, at the time of the resident’s reports about the neighbour, it had limited alleged perpetrator meetings and was only completing such meetings where there was a ‘real concern about someone’s welfare’. Regarding the telephone conversation of 31 July 2020, the landlord confirmed that it had reported the issue to its data management team, who had concluded that the issue did not represent a breach of data.

Assessment and findings

The neighbour’s garden

  1. The resident first reported the neighbour’s garden on 23 March 2020. The landlord responded promptly, explaining that it was limited in what it was able to do to assist at that time due to the effect on its services of COVID-19. Around this date, the country was about to enter into the first national lockdown. Many service industries, such as the landlord’s had already been severely impacted and this would remain the case for some time thereafter. As such, the landlord’s response was reasonable, it replied in good time to say that it was unable to carry out the normal inspection process it would in such circumstances, but said that it would do so when it was able.
  2. The resident was not satisfied with this response and requested that the landlord write to the neighbour. She repeated this request on two subsequent occasions (12 April and 12 May 2020) and the landlord then agreed to write to the neighbour; it sent this letter on 29 May, confirming the reports it had received and requesting that they remove any rubbish. Whilst the landlord could have acted upon the resident’s earlier requests, its decision to send this letter to the neighbour presents as reasonable in the circumstances. It will have been aware at that point, that its ability to conduct its usual neighbour dispute procedures would remain impacted for some time. Writing the letter, as requested by the resident, confirmed that it was taking her reports seriously, even though it was not in a position to confirm whether the neighbour’s garden was in a reasonable state.
  3. The resident reported some improvement in the state of the garden following the landlord’s intervention, though she was still of the view that it did not meet an acceptable level. Upon her further request (9 June 2020), the landlord wrote a further letter to the neighbour, giving him a deadline of 10 July to remove any rubbish. However, the resident again reported that this deadline had not been met, she also raised further concerns, including her belief that she should move away temporarily whilst the issues with her neighbour persisted.
  4. The telephone conversation that the HO had with the resident precipitated the separate complaint (below) about data, though the call also included the landlord signposting the resident to its benefits team for a housing benefit enquiry she had made and it providing its position on the garden issue. The landlord explained that it would likely be disproportionate to take legal action against the neighbour at that point. Whilst the resident did not agree with this view, it is relevant that there was no evidence upon which the landlord could progress down a legal route at that stage; as such, it is highly likely that any attempts to take legal action would not be successful.
  5. The landlord carried out the garden inspection on 4 September 2020, during which it did not identify a breach in the tenancy during this inspection as it was satisfied with the condition of the garden. It relayed this information to the resident, who was not satisfied with the decision. Though the national lockdown had ended some time before the date that the landlord eventually arranged the inspection, it is appreciated that landlord’s service delivery continued to be impacted. The landlord has confirmed that it continued to limit its visits to alleged perpetrators to cases where it had a significant concern, from a welfare perspective, and that it did not view this issue as such a case. The landlord’s position here reflected the Ombudsman’s understanding of similar cases that were taking place around this time. Landlord’s were left having to make difficult decisions about their limited resources, leaving some resident’s understandably frustrated when their cases were not seen to be prioritised. The landlord’s conclusion not to prioritise the garden inspection was reasonable, taking into account the nature of the reports and its understanding that no immediate threat to the resident was apparent.
  6. Whilst the landlord’s position, i.e. that no further action was required, was understandable from a procedural and resource management perspective, it would have been helpful if its complaint responses had clarified its views on the wellbeing concerns the resident had reported. She had reported that she wanted to vacate her home temporarily due to the ongoing issues and that her mental and physical health had deteriorated. Though this might not necessarily have changed the landlord’s overall position, it would have shown empathy and consideration for her circumstances to respond to the concerns she had raised, including signposting towards any relevant support that it could offer. It is also noted that the resident has raised further concerns about the actions of her neighbour post dating the complaints process. These have not been responded to here as they do not fall within the remit of this investigation, which is limited to events that occurred, and were raised, as part of the complaint under investigation.

The telephone call of 31 July 2020

  1. The resident complained on the same date as the telephone conversation, saying that her personal data would have been overheard by the HO’s household. The Ombudsman’s role does not extend to investigation of data protection issues, which fall within the remit of the Information Commissioner’s Office (ICO) for Local Authority tenants. However, this investigation has a role in considering the landlord’s response to the resident’s reports about its communication with her and the broader service delivery issues it identified following her complaint.
  2. It was both reasonable and appropriate that the landlord identified these service delivery issues. It was also reasonable, given that the fact that the landlord had only recently been required to change its operating procedures such that a significant majority of its staff were working from home, that it had not necessarily considered the wider impact of staff members using their homes to make potentially sensitive phone calls. The Ombudsman expects landlords to use complaints as a learning opportunity, as was the case in this instance. It thanked the resident for identifying this issue and then, in its stage one response, it clarified the impact of COVID-19 on its services, explained that it had investigated the resident’s call fully and confirmed that her case was not of a ‘sensitive’ nature. It also explained that its senior management team had been made aware of this issue.
  3. All of the above demonstrate the landlord taking the resident’s complaint seriously. It shows a landlord acted with transparency and seeking to improve its service delivery through its complaints handling. Whilst the resident did not agree with the landlord’s position that her case was not ‘sensitive’, this position presents as reasonable in the circumstances. The landlord confirmed the types of cases that might meet this criteria and explained why the resident’s reports about her neighbour’s garden did not do so. As such, it was a reasonable decision for the landlord to confirm that it had not upheld this aspect of the complaint on the basis that there was no evidence of inappropriate behaviour on the part of its staff member.

Complaints handling

  1. The Ombudsman has not been able to fully investigate the contents of the stage one response (the 10 July 2020 email regarding the neighbour’s garden) as this was not available to this investigation. It is of concern that the landlord said that it had ‘denied’ the complaint at this stage as this would suggest that the complaint fell within one of its exempt categories. It is not clear that that this was intended as this would only be appropriate if the case sat outside the remit of the landlord’s complaints process, which would not appear to be the case here given the definitions of exemptions provided within the complaints policy. Instead, the Ombudsman would generally expect to see a landlord state that it had not upheld a complaint, together with clarity as to a complainant’s escalation options and its supporting reasons for not upholding the complaint.
  2. There is also a concern that the resident was not signposted towards the ICO in relation to her reports about her personal data. It was appropriate that the landlord referred her on to this Service upon the completion of the complaints process, however, its complaints policy confirms that the ICO are the appropriate body for investigating personal data issues.
  3. With regards the emails that the resident said had been deliberately blocked by landlord staff members, it is not clear that the landlord has been provided with the evidence that the resident sent through to the Ombudsman. In any case, the timing of the three emails (all sent within a very short time period on the same date) and the wording of the return email that she received would suggest that there was likely an issue with the landlord’s email service at that point. In the interests of transparency, it would be helpful of the landlord to look into this issue and respond to her in writing.
  4. It is of further concern that the landlord’s complaints department has confirmed to this Service that it has no vulnerabilities listed on the resident’s casefile. In her correspondence with the landlord she referred to her mental and physical health being impacted by the issues under investigation; she also confirmed to this Service that she has a registered disability and that, in her view, the landlord had not taken her vulnerability into account. It is not clear to what extent, if any, these vulnerabilities might have made a difference in the landlord’s response to the complaint. However, the Ombudsman expects a landlord to recognise where additional support may be required and to demonstrate what it has done in such cases to ensure a fair service has been provided.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme (the Scheme), there was no maladministration with respect to the landlord’s response to the resident’s reports about her neighbour’s garden.
  2. In accordance with paragraph 54 of the Scheme, there was no maladministration with respect to the landlord’s response to the resident’s reports about the telephone call she had with one of its staff members.
  3. In accordance with paragraph 54 of the Scheme, there was service failure with respect to the landlord’s complaints handling.

Reasons

  1. The landlord’s delay in inspecting the neighbour’s garden was reasonable given the impact of COVID-19 upon its service delivery. Whilst it awaited the opportunity to carry out its inspection, the landlord wrote to the neighbour on multiple occasions, reminding them that they were potentially in breach of their tenancy agreement and requesting that any rubbish be removed. This approach was reasonable in the circumstances and in accordance with the resident’s direct requests that it send such correspondence. The landlord inspected the property within a reasonable timeframe following the end of lockdown and upon identifying no breach of tenancy on the part of the neighbour, it decided no further action was required. In order to take action against a tenant, a landlord has to be sure that it would be a proportionate and justified response to the allegations raised and the evidence obtained. 
  2. The landlord completed a full investigation into the call that took place on 31 July 2020, responded to the resident’s specific concerns about the staff member’s actions during the call and concluded that his actions had not been inappropriate. It also clarified the impact of COVID-19 on this aspect of its service delivery and confirmed that the resident’s complaint had been progressed to its senior management team to identify learning for its overall services. It confirmed that staff members had been advised to attempt to limit potentially sensitive calls to times when household members were not present.
  3. There were concerns with the terminology used during the landlord’s complaint correspondence with the resident as this may have given her the impression that her complaint was outside the remit of its complaints process. In addition, there were further concerns that the resident was not referred on to the ICO as part of its complaint response for her concerns about her personal data and that the landlord had not considered the resident’s vulnerability as part of its response to the complaint.

Orders and recommendations

Order

  1. The landlord to pay the resident £100 in compensation for the service failures identified with its complaints handling.
  2. The landlord to confirm compliance with the above order by 28 October 2021.

Recommendations

57. The landlord to make contact with the resident to discuss any vulnerabilities she may have, ensuring that it does so in an empathetic and sensitive manner. The landlord to update the resident’s casefile in respect of this discussion and to ensure that her personal circumstances are taken into account in its management of her tenancy.

58. The landlord to respond to the issue relating to returned emails dated 20 August 2020, confirming whether or not there was a general issue with its email service on that date and, if appropriate, apologising for any inconvenience this caused.