Citizen Housing (202201031)

REPORT

COMPLAINT 202201031

Citizen Housing

12 January 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 response to the resident’s concerns regarding the conduct of its staff.

Background

2. The resident is a tenant of the landlord. The resident has advised that she experiences difficulties with her mental health and has medical conditions which are exacerbated by stress.
3. The evidence shows that a surveyor visited the resident’s property on 20 August 2021 to inspect her kitchen cupboards which she reported to be rotten and mouldy. The inspection identified that the repair issues were caused by damage that had not been reported rather than general wear-and-tear. The landlord confirmed that it would complete the majority of the repairs on a recharge basis only. The resident was also informed that her kitchen was not due to be considered for replacement until 2028.
4. The resident initially raised a complaint in November 2021 about the way she had been spoken to by the surveyor. She felt that they had been patronising and were not helpful when assessing the repair issues in the property. She later added to her complaint following a conversation with the surveyor’s manager where she was told that the surveyor had reported that she had said that she would use “the race card” to progress the kitchen repairs and replacement. She denied making the statement and felt that the allegation was defamatory. She added that she felt the comment was racially motivated and that she had been discriminated against. She later confirmed that she was seeking a written apology and compensation.
5. In response to the resident’s complaint, the landlord confirmed that it had discussed the allegations with the surveyor who had maintained their version of events in that the resident had advised that she would “use the race card” in a conversation about kitchen repairs on 25 August 2021. The landlord acknowledged that this contradicted the resident’s version of events and explained that without any further corroborative evidence, it was unable to provide a conclusive response as there was no evidence to support either party’s claim. It confirmed that it had discussed staff conduct with the surveyor and advised that it would ensure that they would not carry out further visits to the property as requested. It acknowledged that a marker had been put on its system which indicated that two people were required on visits to the property. It said that this should not have been added, apologised to the resident and offered £300 compensation in recognition of the impact this had.
6. The resident referred her complaint to this Service as she remained dissatisfied with the landlord’s offer of compensation. She felt that the landlord had used her race against her which had caused anxiety and affected her mental health as well as exacerbating her existing medical conditions.

Assessment and findings

Scope of investigation

7. In her complaint to the landlord and this Service, the resident has advised that she felt that a member of the landlord’s staff had been discriminatory and made a defamatory statement about her. The resident has also advised that the stress caused by the matters raised, had impacted her mental health and existing medical conditions. It is not the role of this Service to determine whether a resident was a victim of discrimination, as set out in the Equality Act, or award damages in the way that a court might. In addition, it is not within the remit of this Service to decide on whether there was a direct link between the allegations made and the resident’s health.
8. In accordance with paragraph 42 (g) of the Housing Ombudsman Scheme, we will not investigate matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure. This Service therefore cannot investigate the resident’s accusations of slander, libel and defamation of character or racial discrimination as these are legal terms which are better suited to a court to decide. The resident may wish to seek independent legal advice if she wishes to pursue this aspect of her complaint.
9. Whilst we cannot consider the aspects detailed above, consideration has been given to any general distress and inconvenience which the resident experienced as a result of any errors by the landlord and whether the landlord responded appropriately to the resident’s allegations of misconduct by its staff.

The landlord’s response to the resident regarding the conduct of its staff.

10. The landlord’s code of conduct states, in part, that it expects staff members to:
    1. Not act in a way that unjustifiably favours or discriminates against individuals, groups or interests.
    2. Treat everyone with equal respect, care and consideration always.
    3. Comply with the landlord’s policies, equality, diversity and inclusion policy.
11. In this case, the resident initially raised concern that a surveyor who visited her property on 25 August 2021 had been patronising and unhelpful. She also added concern that their refusal to replace or repair her kitchen had been discriminatory and racially motivated. The surveyor had also reported to their manager that the resident had advised that she would use “the race card” to get her kitchen replaced, which the resident believed to be defamatory, and had felt intimidated as the resident had begun to speak about colour in terms of ethnicity. It is evident that this situation has been distressing for the resident, however, it should be noted that the role of the Ombudsman is not to establish what happened on the day in question. Our role is to establish whether the landlord’s response to the resident was fair in all the circumstances of the case.
12. When a landlord receives reports of poor staff conduct from a resident it would usually be expected to investigate any allegations made and seek corroborative evidence of the alleged behaviour to support it in taking any further action against the member of staff where required. In this case, the landlord acted appropriately in investigating the resident’s allegations by interviewing the member of staff and their manager and discussing the resident’s experience with her in an attempt to establish a record of events in line with its obligations. It also acted appropriately by asking the resident to provide documentary evidence in the form of a phone call she said she had recorded; however, this was not provided.
13. Without any supporting evidence or witnesses to the events, there were limited further steps the landlord could have taken to gain corroborative evidence of what occurred. As such it was reasonable for it to explain that it could not provide a definitive response to the resident as there was a lack of evidence to support either party’s claim. The Ombudsman does not doubt the resident’s account of what happened, however as an impartial and independent arbiter of complaints we can only base our decisions on the available evidence. There is insufficient evidence to confirm what happened either way but there is evidence that the landlord investigated the resident’s concerns, sought to gain further evidence and informed the resident of the outcome of investigation in line with its obligations. As such, this Service is satisfied that the landlord took reasonable steps to address the resident’s concerns during the investigation process
14. The landlord advised that a marker, indicating that operatives should attend the property in twos, was added to its system for the resident’s property sometime after the events of 25 August 2021. In some cases, it may be appropriate for landlord’s to apply a marker to a resident’s account for operatives to attend the property in pairs. However, this is usually used where there is a risk of violence or other factors and the resident is usually made aware of the reasons for the decision. In this case, the landlord has not provided any policy documents which support its decision to add a marker to the resident’s account and it was therefore reasonable for this to be removed. It acted appropriately by acknowledging its mistake and apologising that the marker had been added.
15. The landlord acted fairly in acknowledging its mistake in applying a marker to the resident’s account and apologising to the resident. It put things right by removing the marker and awarding £300 compensation by way of apology. The compensation award was in line with the Ombudsman’s own remedies guidance (available on our website), which states that amounts in this range are considered proportionate where there has been considerable service failure or maladministration but there may be no permanent impact on the resident. The landlord offered compensation that the Ombudsman considers was proportionate to the distress and inconvenience experienced by the resident in relation to the landlord’s failings in this case.

Determination

16. In accordance with paragraph 53 (b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to investigation in respect of the resident’s concerns regarding the conduct of its staff, which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Recommendations

17. It is recommended that the landlord reviews its polices to ensure that the reasons that markers may be applied to its system are clearly documented for compliance purposes if it wishes to implement these in future.