Eastbourne Borough Council (202014000)

REPORT

COMPLAINT 202014000

Eastbourne Borough Council

24 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

The complaint is about the landlord’s:
1. Consideration of the resident’s transfer application.
2. Support to the resident in applying for alternative accommodation.
3. Handling of the resident’s reports of antisocial behaviour (ASB).
4. Complaints 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 the evidence, in accordance with paragraph 39(m) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction: the landlord’s consideration of the resident’s transfer application.
In December 2019 the resident applied to the landlord to transfer to a different property. On 26 February 2020 the landlord wrote to the resident saying that she could not join the housing register, as she was not considered to have a housing need due to being in accommodation suitable for her needs.
Under the terms of the Memorandum of Understanding between the Local Government and Social Care Ombudsman and the Housing Ombudsman complaints about assessment or management of a local authority’s choice based letting service are matters for the Local Government and Social Care Ombudsman.
Paragraph 39(m) of the Housing Ombudsman Scheme says, “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.”
Therefore, this aspect of the resident’s complaint is outside of the Ombudsman’s jurisdiction.
The remaining three complaints about the landlord’s: support to the resident in applying for alternative accommodation, handling of the resident’s reports of ASB and complaints handling are assessed below.

Background and summary of events

The resident is a secure tenant of the property, a one bedroom first floor flat, owned and managed by the landlord which is a local authority.
The resident has the following recorded vulnerability: autism, anxiety.
The landlord’s ASB policy defines Antisocial behaviour (ASB) as conduct that has caused, or is likely to cause, harassment, alarm or distress to any person.
The landlord’s ASB policy says that it does not regard the following as ASB: day to day noise, the hours people keep or other lifestyle differences. The policy also says that the landlord will assess (and periodically reassess) the seriousness of ASB reported and take action according to risk and target times. The landlord will explain its reasons, should it choose to take no further action on a report of ASB, and advise on self-help or other alternative courses of action whenever it is possible and appropriate to do this.
The landlord has a two stage complaints procedure. At stage one the landlord will acknowledge the complaint within five days and aim to respond to the complaint within ten working days. At stage two the landlord aims to resolve complaints within 20 working days.
The landlord manages mutual exchanges via the Homeswapper platform, and its residents can use Homeswapper free of charge.
On 15 November 2019 the resident met with the landlord and explained that she wished to move to another property. The resident reported ASB by her neighbours, including noise, children playing, banging noises during the day and in the evening and excessive cannabis smoking. The resident advised that she was very sensitive to noise and smoke. At the meeting the resident gave the landlord two pages of completed ASB diary sheets and a “weed log” detailing incidents where cannabis’ smoke had entered her property.
On 15 November 2019, following the meeting, the resident sent an email to the landlord attaching an audio file which she said was of hammering and shouting by her neighbours in the early hours of 8 November 2019.
On 17 December 2019 the resident was diagnosed as having autism. The resident sent a copy of her full autism diagnosis report to the landlord on 7 January 2020.
In December 2019 the resident made an application to the landlord to transfer to another property. As set out in paragraph 4 above the landlord wrote to the resident on 26 February 2020 saying that she could not join the housing register, as she was not considered to have a housing need due to being in accommodation suitable for her needs.
On 25 June 2020, following a request from the resident’s community advocate the landlord referred the resident to a local housing support service. On the referral form the landlord explained that mediation with the neighbours had been suggested to the resident but not accepted and that the resident’s request to be transferred had not been successful as she was deemed as adequately housed.
On 20 July 2020 the resident made a formal complaint that:
1. Despite explaining to the landlord that she couldn’t use the Home Swapper platform the landlord kept advising her to do so and she was receiving automated emails about her Home Swapper account.
2. She had not received support from the landlord in applying for housing association properties.
3. She had experienced ASB from her neighbours which she had reported to the landlord.
Between 3 August 2020 and 13 August 2020, the resident sent a number of emails to the landlord asking for a response to her formal complaint. On 15 September 2020, in response to a request from the landlord the resident sent an email to the landlord containing documents supporting her complaint. On 22 September 2020 the resident sent the landlord an email asking when she would receive a response to the complaint. The landlord replied the same day, apologising for the delay which was due to staff shortages and saying it would keep her updated.
On 23 October 2020, following a telephone conversation with the resident on 21 October 2020 the landlord sent her an email saying that her complaint would be responded to as soon as possible.
The resident sent further emails to the landlord on 30 October 2020, 5 November 2020 and 19 November 2020 asking when she would receive a response to her complaint. The landlord sent the resident emails on 2 November 2020 and 23 November 2020 apologising for the delay in responding to the complaint. In the 23 November 2020 email the landlord explained that the delay was “due to the impact of Covid 19 and having lower staffing levels which is impacting upon our service times”.
The landlord sent the resident its stage one response to the complaint on 1 December 2020. In its complaint response the landlord:
1. Said that it was sorry that the resident was experiencing anxiety in using Homeswapper and offered to contact Homeswapper on her behalf to enquire about deleting her account so she would not receive any further automated emails.
2. Explained that as the resident had been deemed to be suitably housed, she could not bid on properties advertised by housing associations on its choice based lettings system. However, as it had previously advised her, she could apply directly to the housing associations, and it provided a link to details of housing associations on its website.
3. Apologised for the delay in responding to the resident’s complaint which it said was due to the impact of Covid 19 and the delays this had had on service delivery.
On 1 December 2020 the resident asked to escalate her complaint to stage two of the landlord’s complaints process as she felt it had not been properly investigated at stage one.
On 2 December 2020 the landlord acknowledged the resident’s escalation request and explained that due to staff shortages because of Covid 19 there would be a delay in responding.
On 15 December 2020 the landlord spoke to the resident on the telephone about her complaint. The resident explained that she had contacted housing associations and had been told that her housing officer would need to refer her to them to be rehoused. However, she said that when she forwarded the emails to her housing officer he had ignored her. She said that using Homeswapper made her anxious because of the social element of having to meet people and have viewings of the property. The word “Homeswapper” was raising her anxieties. The landlord explained that it had apologised for sending her an automatic reactivation email and that it required an email from the resident to confirm that she wanted to be removed from Homeswapper. The resident said that she didn’t feel the landlord was taking her disability seriously enough. The neighbours’ drug use and smoking were affecting her “sensory issues.”
On 3 February 2021 an internal email noted that there was a lack of notes on the resident’s tenancy file, so it was difficult for the landlord to work out what it had done in response to her ASB reports.
Notes made of a telephone conversation between members of the landlord’s staff on 3 February 2021 say that:
1. The landlord maintains that it offered to refer the resident to the local housing support service a few months into the tenancy, but the resident declined the offer. However, there was no record of this.
2. The landlord offered the resident mediation with the neighbours, but she declined the offer. However, there was no record of this.
3. The landlord had told the resident that if she thought the neighbours are smoking cannabis to report this to the police.
4. The landlord had visited the building about ten times since the resident started her tenancy and hadn’t witnessed cannabis use. However, there were no records of these visits.
5. The landlord said that it had advised the resident that the noises she was complaining about were “neighbour noise, such as children playing in neighbouring flats which is not something we can control.”
6. Whilst there was evidence that the landlord had been in email contact with the resident about her ASB reports “there are a number of notes on the system mentioning previous emails but none of those emails are on the system.”
On 25 January 2021 the resident sent the landlord an email asking when the stage two complaint response would be issued. The landlord replied the same day saying that it hoped to respond by the end of the week. On 28 January 2020 the landlord sent the resident a further email saying it would send the response as soon as it was able.
The landlord’s stage two complaint was issued on 10 February 2021. In its stage two response the landlord:
1. Explained that it would not normally provide recommendation letters to housing associations, but that she could apply directly to the housing associations.
2. Explained that if a resident was considered to be suitably housed and therefore could not join the housing register the resident had the choice of looking for a mutual exchange.
3. Explained that it had offered for her to use Homeswapper as it paid a subscription to enable its tenants to use the service free of charge to facilitate mutual exchanges.
4. Suggested that the resident ask her community advocate or the local housing support service worker to help her with accessing Homeswapper if she wished to maximise her chances of moving.
5. Confirmed that it had contacted Homeswapper on her behalf to ask for her account to be deactivated and that it had received an acknowledgement email from them advising that they were experiencing a lot of queries and that there were delays in replying to enquiries but that they were dealing with enquiries.
6. Detailed the actions that it had taken in response to her reports of ASB (as set out in paragraph 29 (b) to (e) above. It also said that the landlord had left calling cards for residents to contact it about any ASB but acknowledged that “It would have been good practice to follow this up with a letter to all residents in the block”.
7. Apologised of the delay in responding to the complaint.
The landlord’s stage two complaint response was its final response to the complaint confirming that the landlord’s internal complaint process had been exhausted.

Assessment and findings

The resident has clearly found the experience of living at the property distressing. However, in reaching a decision about the resident’s complaint we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case.

The landlord’s support to the resident in applying for alternative accommodation

In response to this aspect of the complaint the landlord:
1. Explained that as the resident had been deemed to be suitably housed, she could not bid on properties advertised by housing associations on its choice based lettings system.
2. Provided a link to details of housing associations on its website.
3. Explained that having being considered as living in a suitable property if she wished to move then she had the option to look for a mutual exchange.
4. Explained that it would not normally write to housing associations on residents’ behalf to apply for accommodation.
5. Suggested that the resident ask her community advocate or the local housing support service worker to help her with accessing Homeswapper if she wished to maximise her chances of moving.
6. Contacted Homeswapper to ask for her account to be deactivated so she wouldn’t keep receiving automated emails.
It is noted that on 25 June 2020 the landlord referred the resident to a local housing support service.
As the resident could not bid for properties on the landlord’s choice based lettings scheme it was reasonable for the landlord to suggest that if she wished to move she consider a mutual exchange and to refer her to Homeswapper. The landlord also acted reasonably in providing the resident with details of housing associations and in referring her to the local housing support service.
Whilst the resident was unhappy at being deemed to be in accommodation suitable for her needs there is no evidence of service failure by the landlord in supporting her in applying for alternative accommodation.

The landlord’s handling of the resident’s reports of ASB

The Ombudsman considers complaints about how a landlord has responded to reports of a problem. It is not the Ombudsman’s role to decide if the actions of the neighbour amounted to ASB, but rather, whether the landlord dealt with the resident’s reports about this appropriately and reasonably.
In its final response to the complaint the landlord said that in response to the resident’s reports of ASB it:
1. Offered the to refer the resident to mediation.
2. Told the resident that to refer incidents of cannabis use to the police.
3. Explained that it had visited the building about ten times since the start of the tenancy and hadn’t observed any cannabis use.
4. Said that it had advised the resident that the noises she was complaining about were “neighbour noise, such as children playing in neighbouring flats which is not something we can control.”
5. Had left calling cards for residents to contact it about any ASB and acknowledged that it would have been good practice to follow its actions up with a letter to all residents in the block.
Whilst there is evidence that the landlord was in some communication with the resident concerning her initial reports of ASB, there is a lack of evidence supporting its position that the actions set out in the previous paragraph were carried out. The documents provided by the landlord to the Ombudsman do not show specific details of any visits made by the landlord to the property or provide specific details of how the reports of ASB were investigated and the resident updated in accordance with its ASB policy (see paragraph 12 above). Neither is there evidence that the landlord considered the recording provided to it by the resident on 15 November 2019 (see paragraph 16 above).
Without such information this investigation cannot assess that the landlord’s response to the resident’s reports of ASB was appropriate or reasonable. Such records are vital for tracking reports and evidencing investigation and remedial action. Record keeping goes hand in hand with dealing with reports of ASB, and a lack of records is evidence of a problem with the landlord’s ASB handling processes.
There was therefore service failure by the landlord in its handling of the resident’s reports of ASB.

The landlord’s complaints handling

The landlord acknowledged the resident’s formal complaint on 22 September 2020, 64 days after the complaint was made and 59 days outside the five days timescale for acknowledging a complaint set out in its complaints policy. This delay were despite repeated requests for updates from the resident.
The landlord issued its stage one complaint response on 1 December 2020, 95 working days after receiving the resident’s formal complaint and 85 working days outside the ten working day timescale set out in the landlord’s complaints policy.
The landlord issued its stage two complaint response on 10 February 2021,48 working days after receiving the resident’s formal complaint and 28 working days after the twenty working day timescale set out in the landlord’s complaints policy.
There is evidence that from 23 October 2020 onwards the landlord responded to the resident’s requests for updates, apologised a number of times for the delays in providing its complaint responses and explained that these were due to staff shortages because of Covid 19. However, the delays at both stages were significant and an explanation and apology did not put this right. It would therefore have been appropriate for the landlord to consider offering the resident compensation for the delays in handling the complaint.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the complaint about the landlord’s support to the resident in applying for alternative accommodation.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of the complaints about the landlord’s:
1. handling of the resident’s reports of ASB
2. complaints handling.

Reasons

The landlord acted reasonably in suggesting that if the resident wished to move she consider a mutual exchange, referring her to Homeswapper, providing her with details of housing associations and in referring her to the local housing support service.
There is a lack of evidence that the landlord took appropriate action in response to the resident’s reports of ASB and appropriate records were not kept.
The landlord’s complaints handling showed significant and unreasonable delays.

Orders and recommendations

The landlord is ordered within four weeks of the date of the determination to pay the resident compensation of £300, made up as follows:
1. £200 for the distress and inconvenience she incurred as a result of the landlord’s failings in its handling of her reports of ASB.
2. £100 for the time and trouble spent pursuing the complaint due to the landlord’s delays.
The landlord is ordered within four weeks of the date of the determination to contact the resident to confirm whether she is currently experiencing any ASB or noise disturbance and if so, the landlord should agree an action plan with the resident going forward including timeframes for actions to be taken.
The landlord is ordered within four weeks of the date of the determination to review its ASB policies and procedures to see whether staff training is needed to ensure that its ASB policy is followed to ensure that that it maintains a clear record of all ASB reports and the actions taken in response to each report.
The landlord is to provide evidence of compliance with the above Orders to this Service within four weeks of the date of the determination.