Darlington Borough Council (202012091)

REPORT

COMPLAINT 202012091

Darlington Borough Council

11 February 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

The complaint is about the landlord’s handling of the resident’s allegations of unacceptable staff conduct towards him.
The Ombudsman has also considered the landlord’s handling of the resident’s complaint.

Background and summary of events

Background

In compliance with an order made by this Service in relation to a previous investigation (case reference: 201815036), the landlord arranged for an inspection of the trees in the vicinity of the resident’s property on 29 June 2020. This was undertaken by the Arboriculture Officer (AO) and a second member of staff. The landlord’s notes inform that the resident requested to be present during this inspection.
The resident had previously made complaints about the AO who undertook this inspection.

Summary of events

On 30 June 2020 the resident submitted a stage one complaint. He stated that in front of several other residents, his local councillor, and a landlord employee:
1. The AO had been physically hostile towards him on 29 June 2020. He stated that after referring back to a previous tree felling which had already been discussed, the AO responded in a raised voice “how many times do I have to say that” and at the same time, started to approach him at speed. The resident explained that in a firm voice, he replied “don’t you come at me in a hostile manner”, at which point, the officer had realised what he had done. The AO was subsequently asked to leave.
2. Under his tenancy agreement, it stated “At all times you can expect to be treated in a proper and courteous manner by our employees and our agents”, however this was not the case and there were two CCTV camera angles with audio by way of proof.
3. It was unclear why the landlord had thought he would receive an unbiased interaction from the AO with knowledge that he had already made a stage 1 and 2 complaint about the AO’s lack of engagement.

He stated that he did not expect a representative of the landlord to physically charge at him in a hostile manner and with a raised voice.

On 2 July 2020 the landlord confirmed acceptance of the resident’s complaint. It advised that while its usual response timescale was 25 working days, due to COVID-19 and the need to target resources to meet the needs of the most vulnerable, it was likely that there would be a delay. The landlord apologised in advance.
The Ombudsman can see that the resident called the landlord on the same day expressing that the AO needed to be suspended as he felt that he was going to be assaulted. The landlord noted that it requested a copy of the resident’s CCTV footage and advised that this would greatly assist with the investigation, however the resident explained that he would be holding back the footage and instead suggested interviewing the witnesses.
On 3 July 2020 the resident wrote to the landlord. He stated that having slept on the matter, and following his telephone conversation with the landlord, he believed that the AO needed to be suspended pending investigation. The resident quoted several sections of the landlord’s code of conduct and stated that with this in mind, he believed that the AO should be removed from post until a satisfactory outcome was reached.
The resident added that he did not believe that the landlord was treating the matter with the seriousness it warranted and was thus far dissatisfied with the handling of the situation. He stated that an online search showed that this was not a one off for the AO but a pattern of behaviour.
The landlord acknowledged the resident’s email on 6 July 2020 and advised that it would forward this to the investigating officer.
On 4 August 2020 the resident contacted the landlord and advised that the complaint response was still outstanding. The landlord replied on the following day explaining that this had been chased and that the resident would receive a response shortly.
In further correspondence, the resident sought a specific timeframe, highlighting that several weeks had passed and that despite this, none of the witnesses present on the day had been spoken to. In response, the landlord apologised for its delay but advised that it was unable to confirm when its reply would be issued. It reminded the resident, however, that it had disclosed that a delay would be likely.
On 27 August 2020 the resident’s local councillor chased the landlord to establish when an outcome could be provided, noting that the delay had been lengthy.
The landlord responded to this on 28 August 2020. It explained that while the resident held CCTV of a public space, which he stated proved his version of events, he was unwilling to provide this as part of the investigation. The landlord advised that the AO had since written to the resident to request a copy of the footage which the resident was required to respond to within one month (under the Data Protection Act 1998). The landlord explained that once the resident had responded to this request, the investigating officer would be able to make a firm decision on the matter.
On 4 September 2020 the landlord responded to the resident at stage one. It apologised for the delay, and explained:
1. Having spoken to the officers present and read the resident’s observations, it was not in a position to determine whether the officer acted inappropriately. Both staff and the officer himself had confirmed that the officer had taken a step forward to ensure that the resident had heard him, however denied that this would have been construed as aggressive.
2. The officer had requested the CCTV footage of the incident which may have proved whether his actions were aggressive or not. It noted that to date, the resident had not forwarded the footage and therefore concluded that without seeing the footage, it could not take the matter further.
On 7 September 2020 the resident wrote to the landlord in reply to its complaint response. Noting that the landlord’s response was a month delayed, he requested to escalate his complaint to stage two. He stated:
1. Although the landlord had referred to “both” staff at the scene acting in an appropriate manner, other than the AO, there was only one other member of staff.
2. He had spoken to the other residents present at the time and none had been contacted by the landlord for their accounts. He noted that only the landlord’s staff had been contacted about the event.
3. He had heard everything said on the day, prior to the officer stepping forward. It was therefore unclear why the officer had suddenly become concerned that he could not hear. He added that the AO had in fact taken several steps.
4. While the AO may not have construed this matter as aggressive, he had and the CCTV footage held would back this up.
5. He had received an undated letter from the AO on 10 August 2020 requesting “certain things he believed he was entitled to” however as the letter did not come from the landlord, in what he perceived to be a professional capacity (not on headed paper or from the complaints department), he took this to be a personal request. He stated that he had sought legal advice and advice from the Information Commissioner’s Office (ICO) and would respond to the request within a month of this time. He stated that any reply would be of a private and personal nature and was not to be disclosed with any third parties as it contained legally privileged material.

The resident asserted that the landlord’s investigation was very one–sided and unprofessional.

On 26 November 2020 the resident’s councillor chased a response to the resident’s stage two complaint. The landlord responded to this on 3 December 2020 advising that it would be in a position to respond to the resident within the next week.
On 10 December 2020 the landlord offered its final response. It reiterated that members of staff had not perceived this matter to be aggressive and explained that where there were two differing accounts, such investigations could sometimes be found to be inconclusive. It explained that given that the resident held evidence which could assist the investigation, but had failed to provide this, this was the decision it had arrived at. The resident was informed that should he wish to share this footage, and should it confirm his version of events however, the findings and recommendations would be changed. The landlord apologised for the delay in responding to the resident’s complaint.
On 10 December 2020 the resident wrote to his councillor. He stated that his concern was that the landlord had not contacted any other residents, but only the landlord’s staff. He highlighted that he was within his right to refuse access to his private CCTV as material held for possible future court evidence.
The resident asserted that he had responded to the AO’s letter (although the Ombudsman has not had sight of this response). He stated that within this, he had offered a copy of the CCTV, but this was subject to some legal editing to pixelate out other residents who were present. He stated that the AO had not responded to this, however if the landlord was willing to pay this cost, he would be willing to release the footage. He stated that as both camera angles were requested, the landlord would now need to pay double the cost.
The resident shared this correspondence with the landlord on the same day. He added that he did not believe that he did not believe that the landlord had acted appropriately as:
1. It had not questioned his knowledge or any other residents.
2. It had not requested the CCTV footage itself. The request came as a private request from an individual and was not on the landlord’s headed paper.
3. A reply was sent to the AO but this was not acknowledged or responded to.
4. He was not legally required to release the CCTV material however had tried to come to a compromise. He stated that this offer still stood.
On 18 December 2020, after discussing the matter with the resident’s local councilor, the landlord responded to the resident. It stated:
1. While it was unable to use public money to meet the data obligations, there was a simpler solution. It had confirmed with the councillor (as an individual captured by the footage) that she consented to the footage being disclosed and whilst it had yet to speak to the other officers in the video, it did not envisage that it would be an issue to obtain their consent too.
2. Given the other people present were individuals that the resident was representing in relation to another complaint, it would be entirely reasonable that they would also be happy to consent to him releasing the footage in support of his complaint.

The landlord explained that once this was confirmed, the footage could be reviewed. If parties were unwilling to provide consent, however, the matter would need to be referred to the Housing Ombudsman Service (HOS).

On 12 January 2021 the resident wrote to the landlord. He stated:
1. He did not believe that the burden of proof lay with him, as it was a landlord employee’s conduct in question.
2. In the months that the landlord had the complaint, it should have at minimum approached those present for an independent view on how matters unfolded and what actually occurred, instead of relying on the word of the two officers present, one being the accused.
3. Some of the individuals present had not consented to their data being disseminated in any way without anonymity. He equally held reservations that even if the landlord saw the footage, it would not be without prejudice. He reiterated that he reserved the right to withhold the footage as potential evidence for future litigation and therefore felt it was better for the matter to be considered by HOS.

Assessment and findings

The complaint is about the landlord’s handling of the resident’s allegations of unacceptable staff conduct towards him.

While it is the subject of dispute, the Ombudsman is unable to comment on whether or not the AO’s actions were aggressive. Both parties state that the AO did step towards the resident. According to the resident, the AO had intended to assault him, however upon obtaining the AO’s account, the landlord explained that he had only taken steps forward to ensure that the resident could hear him.
With limited evidence and two conflicting accounts, it would be inappropriate for this service to comment on the AO’s intentions. This is because, whilst the resident considers that this was aggressive, the AO states that it was so that he could be heard. The Ombudsman notes the different accounts but cannot, based on the evidence available, conclusively determine the AO’s original intention or how this was perceived by others present (apart from the resident himself). The Ombudsman also has not had sight of the CCTV held by the resident.
The Ombudsman has considered, nonetheless, whether the landlord appropriately investigated this matter and whether the actions taken by the landlord, based on the evidence available to it, were reasonable in enabling it to reach a fair conclusion.
The Ombudsman notes that as the resident had indicated within his stage one complaint that his allegations could be corroborated by his CCTV footage, the landlord sought to access this. This was reasonable as it would have evidenced first-hand the events that occurred. The Ombudsman can see that this was initially requested upon speaking with the resident on 2 July 2020, and it was explained that the footage would greatly assist the investigation.
In the Ombudsman’s opinion, as the resident had put these allegations to the landlord, and had again suggested (on 7 September 2020) that this would support his account, it would have been reasonable for him to have shared this footage as supporting evidence. The Ombudsman recognises that the AO had written to the resident on 10 August 2020 requesting this footage and while the resident has suggested that he considered this to be a personal request, it was also made clear on 27 August 2020 to the resident’s councillor that the complaints team would use the footage to make a firm decision on the matter. Furthermore, within the stage one response, the landlord explained that this footage was needed in order to take matters further.
While the Ombudsman has not had sight of the resident’s response to the AO, it has been ascertained from the resident’s later correspondence that the resident did offer the landlord a copy of the footage, but only if the landlord was willing to cover the cost for editing (due to GDPR concerns). Although this therefore offered the landlord an option to obtain the footage, in the Ombudsman’s opinion, it was reasonable that it declined to do so. As it explained to the resident, it would have been inappropriate to use public money to meet this data obligation.
This aside, the Ombudsman appreciates that the resident was not obligated to share his footage, and that he had emphasised his right to withhold the footage as potential evidence for future litigation. The Ombudsman also notes that the resident advised in a telephone call on 2 July 2020 that he would not be disclosing the footage for the time being. The Ombudsman therefore would have expected the landlord to have exhausted all other means of obtaining evidence to investigate the allegation.
The Ombudsman can see that as part of the landlord’s investigation, it spoke with the AO and the second officer in attendance, to understand their perspective on what had occurred. This was reasonable.
The Ombudsman notes, however, that no other accounts were captured, outside of the landlord’s staff. Despite the resident advising that several other residents and the local councillor had been present at the time of the event, and encouraging the landlord to make contact with them, it does not appear that the landlord made any attempt to obtain their recollections. In the Ombudsman’s view, this was unfair. In demonstrating its commitment to establishing the truth, it would have been reasonable for the landlord to have sought further accounts, such as that of the local councillor who, as the evidence shows, the landlord was already in frequent contact with.
Given the number of times that the resident raised that other witnesses had been present, it would have been reasonable for the landlord to have pursued this or, if the landlord had found good reason not to, to have explained why it did not consider this to be appropriate. In the absence of the resident’s CCTV footage, it seems unreasonable that the landlord did not explore this before determining that the issue could not be settled.
The Ombudsman notes that the landlord did continue to correspond with the resident, in an attempt to overcome the barriers preventing him from sharing the footage, after its final response. This was reasonable. Still, however, the Ombudsman has concluded that the landlord had not taken sufficient, proactive, action to investigate the matter.

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

In respect of the landlord’s handling of the resident’s complaint, the Ombudsman has acknowledged that the landlord delayed in offering its stage one response. While the length of time that passed was contrary to the complaints policy which indicates that the landlord will provide a complaint response within 25 working days, the Ombudsman accepts that the landlord signposted that there would likely be a delay due to the impact of COVID-19. Subsequently, this has not been identified as a service failure. The Ombudsman notes that the landlord also offered the resident an apology for its delay on several occasions.
At stage two, following the resident’s request to escalate this complaint on 7 September 2020, the Ombudsman has seen evidence from the acknowledgement email to the resident that the response would be delayed due to covid. As per its policy, the landlord should have offered its complaint response within 30 working days, however due to covid restrictions, the landlord was able not able to offer its response until 10 December 2020. The Ombudsman notes that the resident sought support from his councillor as a result and the matter was chased on 26 November 2020, however no specific response date was given at this time.
The landlord did offer an apology for this within its final response, which was acceptable. The landlord did appropriately manage the resident’s expectation despite being unable to act in accordance with the complaints policy. Ultimately, the landlord’s delay in providing the resident with its final decision, delayed the resident in being able to escalate his complaint to HOS, however the resident was informed this was due to covid.

Determination (decision)

In accordance with paragraph 54 of the Scheme, there was:
1. A service failure in respect of the landlord’s handling of the resident’s allegations of unacceptable staff conduct towards him.
2. No maladministration in respect of the landlord’s handling of the resident’s complaint.

Reasons

The Ombudsman has arrived at the above determination as:
1. Although it was reasonable to pursue the CCTV footage held by the resident given that this would have offered visual and audio evidence of the event, in the Ombudsman’s view, the landlord should have also sought to interview / obtain witness statements from the other parties present at the time. It was unreasonable that in the absence of the footage, the landlord only obtained the recollections of its staff members and did not seek further evidence which was independent / impartial of its organisation and the resident. It is therefore clear that the landlord had not taken reasonable steps to investigate the matter, before arriving at its inconclusive conclusion.
2. The timescale set out in the landlord’s complaints policy was not adhered to due to covid, however the landlord did advise the resident of its delay and the reasons for this. This was appropriate action in managing the resident’s expectations for the delay in bringing his complaint to HOS.

Orders and recommendations

Orders

In recognition of the landlord’s failure to adequately investigate the resident’s allegations, the Ombudsman orders the landlord to award the resident £100.
The landlord should also write to the resident to apologise for the limitations in its investigation.
The landlord should make the above payment within four weeks of receiving this determination.

Recommendations

The Ombudsman does not expect the landlord to attempt to obtain witness accounts at this point in time as due to the length of time that has passed since the event, the accuracy of the recollections may be questionable. Should the resident provide the CCTV footage, however, the landlord should honour its proposal and reconsider its findings based on the contents.