City of Doncaster Council (202108038)

REPORT

COMPLAINT 202108038

City of Doncaster Council

30 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.

Our approach

The complaint

The complaint is about the landlord’s:
1. Communication with the resident.
2. Allocation of its properties.
The Ombudsman has also investigated the landlord’s complaint handling.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated. After carefully considering all of the evidence, complaint 1a falls outside of the Ombudsman’s jurisdiction.
Paragraph 42(k) 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”.
The assessment of applications for housing and subsequent allocation of property to applicants is carried out under Part 6 of the Housing Act 1996. All local housing authorities are required to have a published allocation scheme which sets out how they assess and prioritise applications for housing.
In this case, the resident has complained about the landlord’s housing of residents with alleged drug and substance abusers and/or mental health issues in the block. While the resident’s concerns are acknowledged, this complaint falls within the jurisdiction of another Ombudsman, the Local Government Social Care Ombudsman (LGSCO), and is outside of the Housing Ombudsman’s jurisdiction in accordance with paragraph 42(k) of the Housing Ombudsman Scheme. However, it is within the scope of this investigation to consider the landlord’s response to the complaint.

Background

The resident is a secure tenant of the landlord, an Arms Length Management Organisation of a local authority.
The property is a 1 bedroom flat in a block comprising of 4 flats.

The landlord’s obligations, policies and procedures

The landlord’s Housing Management policy sets out the following:
1. Section 2.3 of the tenancy agreement (under tenant obligations) states “it is your responsibility to make sure that every person living in or visiting your property, do not do anything which is likely to cause nuisance to harass, annoy, or distress any person who either lives in or has lawful business in the neighbourhood…you must not act in any way, which causes or is likely to cause nuisance alarm or distress to any person, or act in any way, that is antisocial”.
2. Section 5 says that it will offer tenancies as per the circumstances set down in the tenancy strategy and council’s allocations policy.
3. Section 8.1 It will carry out a thorough investigation into all complaints received to ensure the most appropriate action is taken to resolve the issues.
4. Section 9.1 It states it will work with partners and “utilise all tools and powers available” to it when responding to ASB however, it will “always” undertake a careful consideration of the circumstances of the case to ensure the action is appropriate and necessary before commencing enforcement action.
The landlord’s compliments, comments and complaints policy (complaints policy) says that it operates a 2 stage complaints process whereupon if the resident is dissatisfied with the stage 1 response, they have a right to appeal at stage 2; its appeal stage. The complaints procedure states that all appeals will be investigated in full by an independent appeals panel who will review and resolve complaints where the complainant is unhappy with the response at stage 1 of the complaints process. It will respond to stage 1 complaints within 10 working days from receipt and to appeals within 20 working days.
The landlord’s complaints policy says:
1. Section 7.2 when a complainant’s behaviour has been considered as being unacceptable or unreasonably persistent, it will explain why it finds their behaviour to be unacceptable or unreasonable and ask them to change it. It will tell them that, if the unacceptable behaviour or unreasonable persistency continues it will take action to restrict their contact with its offices.
2. Section 7.3 any restrictions imposed will be appropriate and proportionate. This can include requiring contact be made with a named officer only.
3. Section 7.4 in all cases it will write to the complainant telling them why it considers the behaviour to be unacceptable or unreasonable and explaining what actions it is taking and the duration of that action.

Summary of events

The resident emailed the landlord on 20 July 2021 to request a meeting to discuss his reports about ASB. The resident’s appointed point of contact replied to request that any further evidence be submitted directly to them.
The resident emailed again the following day to advise that he wished to have a face to face meeting with someone more senior because he felt the officer had not taken any action regarding his complaint.
On 7 August 2021 the resident emailed the landlord to report an incident of ASB involving neighbour ‘A’ who had arrived home drunk with her partner. His neighbour was described as being “very aggressive” having pushed him and tried to “grab” his phone. He said he had reported the incident to the police who had classed it as assault.
The landlord emailed the resident to say it was seeking an update from the police regarding its investigation. The landlord also emailed the resident on 16 August 2021 to see if he had response from them. He replied to say the report had been “crimed” and that the investigation was active but delayed.
The police emailed the landlord on 9 September 2021 to confirm that the incident had been “crimed” as ‘common assault’. However, further action would not be taken regarding the incident due to insufficient evidence.
The landlord emailed the resident on 13 September 2021 to ask to arrange a telephone appointment to discuss the incident. The email chain that follows confirms that the police had concluded their investigation and decided not to take any action against neighbour ‘A’. Furthermore, neighbour ‘A’ had made a counter allegation against the resident. The resident said that although the video footage did not show the neighbour assaulting him, it did show that she was intoxicated and drunk.
On 13 September 2021, the resident advised that the landlord was free to call him any time and that his phone did not accept private or withheld calls. The landlord responded to confirm availability and contact details, asking the resident to call. The resident declined and the landlord replied to confirm when it would call, using its mobile phone.
The resident emailed to confirm his dissatisfaction that the landlord had not requested to look at his video footage of the incident and/or offered to meet with him. The landlord confirmed its offices had reopened so they could meet there if the resident wished to meet face to face. The resident replied to say he was dissatisfied that the landlord’s investigation had not included an in person meeting. The landlord confirmed that the police had advised it would not be taking matters any further which is why it was seeking to discuss the case with him.
The resident emailed the police on 13 September 2021 to ask them to share the video footage with the landlord.
The resident emailed the landlord on 14 September 2021 to request a face to face meeting. The landlord replied on 17 September to check whether the resident had heard from the police and agreed a meeting could be arranged. It said it could then view the resident’s video footage of the incident for itself.
The resident replied on the same day confirm that he had not yet heard from the police. He confirmed that he had the video footage on his phone, he said if he did not hear back from the police, he would then arrange for the landlord to view it.
The landlord emailed the resident again on 27 September 2021, repeating the content of its email on 17 September. The resident replied and said the landlord should obtain the footage from the police. He said the police had said his neighbour was clearly drunk and intoxicated which he believed was a form of ASB on its own.
The landlord emailed the resident on 1 October 2021 to reiterate its offer to meet with the resident to review the footage of the incident. The resident replied and said he had not declined to share the footage with the landlord. He said the police officer had told him he had been trying to contact the landlord, but it had not been available. He reiterated his dissatisfaction about the landlord’s request to view it 2 months after the incident.
The landlord spoke with the police on 4 October 2021 who said that the footage showed the resident and his neighbour arguing. The officer said it was “clearly” an argument between 2 neighbours and it was difficult to say who was at fault as both parties were arguing. The landlord asked the officer to forward a copy of the video, but he said he did not have the ways or means to do so. He said he was happy for the resident to share it.
The resident emailed the landlord on 4 October 2021 to request a face to face meeting with the Head of Housing Management.
The landlord issued the resident with a warning for making unreasonably persistent complaints on 16 November 2021. It said it considered the number of contacts to be “unreasonable and excessive.” It limited the resident’s contact to a single point of contact with details provided.
The landlord wrote to the resident on 18 November 2021 to issue a warning for an alleged breach of tenancy which was reported to have occurred on 7 August 2021. It said that the:
1. Resident had declined to show it video footage of the incident however, the police have seen the clip and advised that the evidence was inconclusive.
2. Police reported that the resident could clearly be heard to “goad” his neighbour.
3. Resident should adhere to the terms of his tenancy agreement.
Having received the letter on 27 November 2021 the resident emailed the landlord to say he:
1. Felt the landlord had assisted resident ‘A’ because she had mental health issues and had a social worker working on her behalf.
2. Did not decline to share his video evidence with the landlord because he had given it to the police and given them permission share it.
3. Denied sending abusive emails to the landlord.
The resident emailed the landlord to make a stage 1 complaint on 29 November 2021. The resident reported that he was dissatisfied with the landlord’s response to reports of ASB caused by 2 residents living in the block of flats, broken down as follows:
1. He was dissatisfied with the content of 2 letters sent to him by the landlord regarding his reports of ASB by neighbour ‘A’.
2. He was unhappy that the landlord housed neighbour ‘A’, a ‘drug and substance abuser’ into the block during the covid-19 lockdown in 2020.
3. The landlord had not attempted to contact him or offer to meet with him. The resident requested a face to face meeting with the landlord in order to submit evidence regarding his reports of ASB.
4. The landlord was “assisting” neighbour ‘B’ throughout his ASB complaint.
5. The landlord should have told other residents when it was housing residents with mental health and/or drug issues within the block. He did not feel that this was satisfactory to house these residents within the block.
On 30 November 2021 the landlord replied to the resident’s email of 27 November to suggest that they meet to discuss the situation. The resident advised the landlord that he would meet if the Chief Executive Officer was present.
The resident emailed the landlord on 8 December 2021 in response to a letter from the landlord which did not make sense to him. He confirmed that his stage 1 complaint was sent via email on 29 November 2021. The landlord replied to confirm receipt of the same. The resident replied to say that the landlord had clarified the situation to some extent but that his complaint was about the landlord’s response to his reports of ASB and the conduct of the housing officer.
The landlord issued its stage 1 complaint response on 15 December 2021. It apologised for the delayed response and any inconvenience this caused the resident. It said that it had discussed the resident’s complaint with him on 3 December, as follows:
1. The resident was concerned that the landlord was housing a disproportionate number of residents with “mental health issues, drug problems and those on incapacity benefits.” It said that it allocated its properties in line with the council’s allocation policy and that its housing management staff did not have any input into allocation of properties.
2. The resident was concerned that the landlord was “siding” with residents he was complaining about and was working against him. It said there was no evidence that this was the case.
3. The resident was concerned that the landlord was not complying with the orders made in previous determination made by this service. It said it would liaise with this service to discuss the resident’s concerns that the landlord was not complying with actions set out by this service in a previous determination.
4. It gave details on how the resident could request an appeal of the complaint response if he remained dissatisfied. It said that all appeals were considered by its tenant’s appeals panel.
The resident emailed the landlord on 21 December 2021 to request to escalate his complaint of dissatisfaction. The landlord replied on the same day to acknowledge the request. It asked the resident to confirm what he was appealing against, and what he was asking for as an outcome.
The resident emailed the landlord on 21 December to say that he was complaining about its response to his complaint about ASB caused by neighbour ‘A’. He said he had evidence to support his complaint.
The landlord replied and requested a copy of the resident’s evidence so that it could consider it as part of its investigation. The resident replied to say he had already discussed his concerns with the landlord by phone and that the evidence of emails and photographs had been sent to this service.
The resident contacted this service regarding his complaint. We contacted the landlord on 21 January, 15 February, 7 March and 25 April 2022 to request that it respond to the resident’s complaint.
The landlord wrote its final complaint response on 29 April 2022. In an email to the resident, dated 13 May, the landlord said it had been tidying up its files and was not sure if the letter had been sent. It therefore emailed it to him that same day and put it in the folder for posting. The response was as follows:
1. In relation to the landlord’s response to the resident’s complaint about ASB by neighbour ‘A’, the landlord asked the resident to provide evidence to support his stage 2 complaint. He failed to do so but has provided new and ongoing complaints which had not been previously reported.
2. The resident’s complaint about his neighbour hanging laundry in the wrong place and blocking a fire escape was a new complaint. It would not be considered by the appeal because it was not included in the resident’s stage 1 complaint. It said it had also not received any previous reports on the same issue. The resident was asked to discuss the matter with is housing officer in the first instance.
3. The complaint about neighbour ‘B’ was a historic complaint which had been fully investigated and closed. The landlord took possession of the property on 22 July 2021. The resident had already left the property at the time the resident made a complaint about a smell coming from the property therefore the landlord could not take any action regarding the complaint.
4. The landlord was not able to substantiate the resident’s allegations that he was assaulted by neighbour ‘A’ twice in the last two years, mostly recently in February 2022. The police did not take any action in relation to either assault. The resident did not raise the assaults in his stage 1 complaint. It was therefore not considered as part of the stage 2 complaint.
5. The resident was advised to report any further issues relating to ASB to his housing officer directly.
6. The appeal was not upheld.
On 24 June 2022 the resident contacted this service to confirm that he wished for his complaint to be accepted for investigation.
In a telephone call to this service on 9 August 2022 the resident confirmed that his complaint was about the landlord’s allocation of properties to residents who were drug and substance abusers which was then impacting on members of the public.

Assessment and findings

Communication

The landlord’s letter dated 16 November 2021 set out which aspects of the resident’s behaviour it found to be unreasonable and why. This was appropriate and in keeping with section 7.1 of its complaints policy.
It said it has placed restrictions on the resident’s contact by giving him a single point of contact. The landlord’s housing management policy (section 7.2) says it will tell the resident that if the unacceptable behaviour or unreasonable persistency continues it will restrict contact. This means that the resident should receive a warning about their conduct before a restriction is put in place which would be reasonable.
There is no evidence that the landlord issued a warning prior to putting restrictions in place. This means that in doing so its actions were not reasonable or proportionate which was a failure.
It was appropriate for the landlord to liaise with the police regarding the incident which took place on 7 August 2021. Based on the account provided by the police following its review of the evidence, the landlord’s decision to issue both parties with a tenancy warning letter was reasonable and proportionate. The landlord’s action therefore complied with the landlord’s commitment as set out in its ASB policy to ensure that enforcement action was appropriate and necessary.
It is noted that the landlord relied heavily on the investigation conducted by the police. The police investigate incidents to the criminal standard of proof, beyond all reasonable doubt. Landlords use the civil standard of proof, that the action is, on balance, reasonable and proportionate. Therefore, it follows that due to the nature of an incident, and the evidence provided in relation to it, there is potential for a landlord to take action where the police do not.
In this case it is unlikely that there would have been a different outcome had landlord carried out its own investigation. It is also acknowledged that the landlord encountered difficulties in viewing the footage but that was due in part to the resident’s frustration at it’s somewhat delayed, and limited response. However, the landlord should consider whether it could have provided a more proactive response to the resident’s complaint. Had it done so, it would have been able to evidence its adherence to section 8.1 of its ASB policy and that it carried out a thorough investigation into the complaint to ensure the most appropriate action was taken.
The resident emailed the landlord on 20 July 2021 to request a meeting to discuss his reports about ASB. The resident’s appointed point of contact replied to request that any further evidence be submitted directly to them but it did not respond specifically to the resident’s request to meet. This is due to the resident having confirmed that he had spoken to the Customer Relations Manager to request a meeting with her. The landlord has confirmed further emails received from the resident the same day were all responded to by the allocated point of contact.
It would have been reasonable for the landlord to offer to meet with the resident to discuss the incident of 7 August 2021 as part of its own investigation into the alleged assault. It could have also used this meeting as an opportunity to view the video footage and demonstrate to the resident that it took his complaint about the incident seriously. This would have gone someway to improving the relationship between the resident and landlord.
Following the resident’s request to meet, which he made on 14 September 2021, the landlord replied on 17 September to agree to meet. The landlord reiterated its offer on 27 September and 1 October. However, the resident replied on 4 October to request a meeting with a senior member of staff. Communication then appeared to stall because the landlord once again failed to respond to the request which was unreasonable and caused further frustration to the resident.
On 30 November 2021 the landlord replied to the resident’s email of 27 November to suggest that they meet to discuss the situation. A further email from 3 December 2021 shows that the CEO responded to the resident reiterating its offer for the resident to meet with the Interim Head of Housing Management to discuss ongoing concerns. The allocated point of contact also emailed the resident on 29 November 2021 confirming that a telephone meeting could be arranged with the Interim Head of Housing Management. The resident then did agree to a telephone meeting with the Interim Head of Housing Management which took place on 3 December 2021. This was later followed up with a letter dated 8 December 2021.
The landlord has confirmed that it does not have an ASB procedure. It sets out its broad approach to ASB in its housing management and ASB policy. Neither of these documents set out how it will contact residents in the event that a complaint of ASB is made therefore, not offering the resident a face to face at the outset was not a breach of policy or procedure. However, ASB procedures are a key part of a landlord’s approach to ASB, setting out in detail what action the landlord will take when, why and how. This helps the landlord to ensure that it delivers a consistent service to its residents, and helps residents know more about their rights and responsibilities in relation to ASB. A recommendation has been made accordingly.
The evidence shows that the relationship between the resident and landlord was complex. The landlord had taken steps to manage its communication with the resident however, it was not reasonable for it to ignore requests for a face to face meeting. This was a failure.

Allocation of properties

The resident felt that the landlord was housing a disproportionately high number of residents with complex needs in the block. In one particular case, he felt a resident was offered a property in “retaliation” to the Ombudsman determination on a previous case. The landlord addressed the concerns in its stage 1 complaint response. It advised that its properties were allocated in accordance with its allocations policy which was not administered by its housing management team. The landlord’s explanation was appropriate and therefore, this investigation finds there was no maladministration into how the landlord responded to the resident’s complaint about allocation of properties.

Complaint handling

The resident made a stage 1 complaint on 29 November 2021. The landlord replied on 15 December, 2 days over its stated response time.
The resident made his stage 2 complaint on 21 December 2021. Due to an administrative error, the landlord’s response, dated 29 April 2022 was not issued to the resident until 13 May. The response was dated 90 working days from the date of the complaint meaning it was 70 working days overdue. It was a further 10 working days before the resident received the response, so a total of 80 working days after the due date.
The delayed response caused the resident time, trouble and inconvenience because he had to contact this service to ask us to intervene. The landlord only issued the response following repeated contact from this service, which it initially failed to engage with, to request that it issue its final response.
The landlord’s complaints policy says that stage 2 complaints will be “investigated in full by an independent appeals panel”. The complaint response was issued by the acting head of housing management. There is no reference to an appeals panel therefore, the evidence shows that the landlord completely bypassed this part of the complaints process which was unacceptable. In doing so, it denied the resident the opportunity to have his complaint reviewed by an independent panel. It also meant the landlord missed an opportunity to learn from the complaint and to “challenge where and when appropriate.”
The landlord acted appropriately by addressing the specific points raised by the resident in his stage 1 complaint. However, the evidence suggests that the resident was generally dissatisfied with the landlord’s handling of matters relating to antisocial behaviour. The Housing Ombudsman Complaints Code refers to an effective complaints process as one that “enables a landlord to learn from the issues that arise for residents and to take steps to improve the services it provides.” The landlord should consider whether it could have used the complaints process as an opportunity to engage openly and transparently with the resident on his wider dissatisfaction.
The complaint handling failures amount to maladministration and the landlord has been ordered to pay the resident £300.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its communication with the resident.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its allocation of its properties.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s complaint handling.

Reasons

The landlord did not issue a warning to the resident before sending him an unreasonable contact warning. It did not respond appropriately to the resident’s requests for a face to face meeting which could have been better managed.
The landlord explained that its properties were allocated in line with its allocations policy which is a needs based choice based lettings process.
The landlord’s stage 2 complaint response was significantly delayed and was only issued after multiple requests from this service. It did not follow its complaint policy at stage 2 of the complaints process because it did not refer the complaint to its ‘appeals panel’.

Orders

Within 4 weeks, of the date of this determination, the landlord should pay the resident £400 comprising of:
1. £100 for the service failure in relation to its communication with the resident.
2. £300 for the distress and inconvenience caused by the complaint handling failures.
Within 6 weeks of the date of this determination, the landlord should carry out staff training to ensure that complaints are handled in line with the timescales and processes set out in its complaints policy. The landlord should confirm the date and content of the training to the Ombudsman, also within 6 weeks.

Recommendations

The landlord should consider implementing an ASB procedure.