Exeter City Council (202008830)

REPORT

COMPLAINT 202008830

Exeter City Council

11 June 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:
   1. the advice given to the resident concerning the Home Choice Scheme.
   2. how the landlord handled the resident’s reports of ASB including how staff communicated with her.

Background and summary of events

Devon Home Choice

2. Devon Home Choice is a choice based letting scheme that covers the whole of Devon. The landlord has provided copies of historic versions of the Devon Home Choice Policy and has advised this Service that it has provided the version in effect at the time of the resident’s complaint. It is noted that the earliest version provided is dated May 2019; however, the landlord has also provided a copy of the Devon Home Choice Procedure Manual which has tracked changes in the versions since 2009.  The changes that have been noted do not indicate that the aspects of the policy relevant to this complaint, noted below, were not in place prior to May 2019.
3. Paragraph 2.2.5.9 of the Devon Home Choice provided states: “However the scheme does not apply to the following types of tenancies: – Introductory or probationary tenancies – Where an introductory/probationary tenancy becomes a secure or assured tenancy, applicants do not need to re-apply”.
4. Paragraph 2.5.8 states that “Exeter City Council, … have agreed that they do not consider households they assess as having no housing need as qualifying persons… Exeter City Council … will therefore not register applicants that they assess to have no housing need, and who would otherwise have had their application placed in Band E”.   This is reiterated in paragraphs 8.8 and 8.9 of the Devon Home Choice Procedure Manual version 6.3 (March 2019). Band E contains “Applicants with no housing need at the time of assessment. This will normally include the following:
   1. Applicants who live in a property that is adequate to meet their housing need in terms of property type, size and facilities.
   2. Applicants who do not meet the housing need criteria within any of the other bands (Emergency, High, Medium or Low housing need).”
5. Devon Home Choice accounts for health/well-being needs, whereby an applicant can be considered as needing rehousing because their health or welfare is being affected by their current housing. This is confirmed by paragraph 27.7 of Devon Home Choice Procedures Manual version 6.3 (March 2019) which states: “No hosing need band (Band E) … unless they qualify for another band due to other needs (for example health and wellbeing needs)”.

Antisocial Behaviour Policy

6. The policy states that “when an allegation is recognised as antisocial behaviour, the Housing Team will:
   1. Take prompt, proportionate and effective action.
   2. Take an impartial, objective view, investigating each incident from both sides.
   3. Where appropriate, work with other agencies such as the police and social services.”
7. The policy further states that “there are a number of approaches and mechanisms available to help resolve antisocial behaviour. Each case will be reviewed and responded to uniquely, but options include:
   1. Home visits.
   2. Mediation.
   3. Warning letters.”
8. The policy also makes references to the Community Trigger which “was introduced under the Antisocial Behaviour, Crime and Policing Act 2014. This allows complainants to request a review of their antisocial behaviour case if they believe that no action has been taken in responding to their report of antisocial Behaviour” subject to the case meeting relevant criteria.

Summary of Events

9. On 23 July 2018, the resident became an introductory tenant of the landlord. After a trial period of 12 months, the tenancy would convert to a 5-year fixed-term flexible tenancy.
10. On 12 February 2019, the resident reported that people were entering her property, using her bath and making tea and coffee.  On 18 February 2019 the resident reported that a neighbour had not returned several watches to her that she had passed to be maintained.   The landlord has provided evidence that it spoke to the neighbour and the resident about the incident.  The neighbour gave several watches to the landlord to return to the resident which it did, although the resident did not accept them stating they were of inferior quality.  The neighbour agreed that the resident could choose other watches but there is no evidence that the offer was taken up. The landlord spoke to the police about the matter, who stated that it was not treating the incident as theft. The landlord also advised the resident not to pass notes to the neighbour.
11. The landlord offered mediation to the resident and the neighbour but on 11 March 2019 the landlord confirmed that the neighbour had refused.
12. On 20 March 2019 the resident phoned the landlord after receiving a letter about antisocial behaviour reports in which it asked her not to send notes to her neighbours. The notes of the call detail that, during the conversation, the resident expressed a wish to move and the landlord advised the resident that Devon Home Choice would consider her suitably housed but that she could carry out a mutual exchange after 12 months.   The landlord’s internal correspondence also indicates that it spoke to resident on 28 March 2019 and “made reference to the fact that … couldn’t move until July due to her intro tenancy”.
13. The resident emailed the landlord on 29 April 2019 reiterating problems with her relationship with her neighbours, including the matter with the watches, and her wish for a move. On 30 April 2019, the landlord invited the resident for an interview to discuss what action could be taken. 
14. It is not evident that an interview took place.  However, on or around 20 May 2019, the resident hand delivered to the landlord correspondence which she had exchanged with a shop where she had previously worked. In this, she complained about the conduct of a member of staff towards her during the previous year.  The correspondence contained a new allegation that the member of staff had recently shouted her name, stuck her middle finger up at her and nudged her in another shop.  The correspondence included an email from the police stating that it had investigated the resident’s reports but found no supporting evidence.
15. During June 2019 the resident reported again to the landlord and police that people were entering her flat and moving things around.  The police visited and deemed the doors to be secure with no sign of a crime. The landlord also visited and agreed there were no issues with the doors or windows.  The landlord, in discussion with the resident, suggested that she contact medical professionals who were working with her at the time.
16. On 3 July 2019 the landlord sent the resident information on how she could apply for rehousing through Devon Home Choice. The Council received the application on 10 July 2019.  The resident was awarded band E on the basis of having no housing need although a medical assessment of her housing needs was pending.  On 23 July 2019 the resident’s banding was changed to Band C, the medical information having been considered, and she was eligible to bid for properties.
17. On 24 July 2019, the resident reported that she had been sent an item of jewellery in the post, and that it must have been stolen from her property and sent back to her.
18. On 29 July 2019 Devon Home Choice acknowledged an appeal from the resident about her banding.
19. There was further contact between the resident and the landlord during August 2019 in which the resident expressed her dissatisfaction living at the property and reiterated her allegations about stolen watches and being nudged by a shop employee.  The landlord suggested she contact the police about these matters.  In response to a query from the resident about activating the Community Trigger, on 28 August 2019 the landlord stated that it had notified the appropriate member of staff, who was in the Council’s Environmental Health and Community Safety Team.
20. The landlord liaised with the police about the resident’s case in September 2019. The police expressed concerns that the resident was reporting incidents that were historic or from closed cases.  The police advised that it had recently met and informed the resident and her support worker to write down incidents that needed to be reported.  The police also suggested a joint meeting with the landlord.
21. On 4 October 2019, Devon Home Choice changed the resident’s housing transfer band from Band C to B, the band starting date being 9 September 2019.
22. In a phone call on 20 February 2020, the resident reiterated the difficulties she had with her neighbours mentioning verbal and physical assaults.  The landlord suggested she seek support from other agencies in respect of negative thoughts at that time. On the following day, the landlord wrote to the resident noting it had been suggested that there should be joint monthly meetings with the police and the support worker to discuss issues raised.  The landlord asked the resident for her thoughts although there is no evidence of a response or that regular meetings took place thereafter.
23. The resident was offered alternative accommodation from another social landlord and there was correspondence in June 2020 about the termination of the tenancy and the need for the resident to clear her flat.  The resident advised of difficulties clearing her property during lockdown and the landlord, in order to help her secure her new accommodation, paid the new landlord an advance of 4 weeks rent totalling £423.52 and wrote off rent arrears totalling £1,121,54.
24. On 1 July 2020 the resident phoned to make a complaint about a housing officer and provided further details of the complaint in emails.  The resident complained that a Housing Officer had advised her that she had to wait one year to use Devon Home Choice and that staying in the property had caused her stress and inconvenience, again making reference to the incident in a local shop, the alleged theft of watches and stating that when she reported stab marks in her door, the landlord had simply asked for a police reference number.
25. On 21 July 2020 the landlord responded to the resident’s complaint.  It noted that the resident was granted an introductory tenancy which commenced on 23 July 2018 and that she was provided with a notice confirming that the tenancy would become a fixed term tenancy after a year.  The landlord also noted that the resident had been provided with her tenancy agreement which outlined that she did not have the right to sublet, assign or exchange her home whilst an introductory tenant i.e., up until 23 July 2019.  The landlord concluded after reviewing the paperwork and the conversation of 28 March 2019 that the resident was aware she was an introductory tenant and the associated restrictions of moving when she signed the tenancy.  The landlord also noted that the current and previous versions of the Devon Home Choice policy stated that the scheme did not apply to introductory or probationary tenancies.
26. The landlord stated that it did not have a record of the Housing Officer advising the resident that she would have to wait a year before going onto Devon Home Choice, but even if this conversation had occurred, it would have been correct in stating this.  It further stated that the Housing Officer had acted correctly and diligently in sending the Devon Home Choice forms at the earliest opportunity, on 3 July 2019.
27. The resident escalated the complaint sending several emails to the landlord, again stating that the landlord denied her access to Devon Home Choice and adding new issues related to the handling of her antisocial behaviour case.  In a response sent on 23 July 2020 the resident reiterated reports that she had received verbal abuse from neighbours and referred to “threats, middle finger, robbed by downstairs, stab marks in front door, jewellery in post, assaulted in shop and verbal abuse from the (shop employee)”. The resident also complained that the Trigger Officer in the Environmental Health and Community Safety department had not responded to her. In other correspondence the resident advised the landlord that she was unhappy about comments she said had been made by two housing officers.  She also noted that she had been in her new property for around four months and was already registered on Devon Home Choice.
28. During the complaint investigation the landlord consulted with the Environmental Health and Community Safety department which advised that the resident had enquired about the process for the Community Trigger the previous year. It said that the agreed process was that the single point of contract for all applications was via the police on 101; however, it had not received a Community Trigger application.
29. The landlord responded to the resident at Stage 1 of the complaint procedure on 18 August 2020.  It summarised its ASB policy and concluded that officers followed the policy including considering mediation. It stated that it could not respond to criminal activities that had been reported but confirmed that it had liaised with the police. 
30. The landlord also noted that a housing officer and Environmental Health had advised the resident that she could have submitted reports for the Community Trigger by calling 101 via the police, but she did not do so.  The landlord advised that there was no evidence that the resident was denied access to Devon Home Choice nor that the housing officer gave this advice; however, it accepted that the policy could be interpreted in different ways so that it was possible that it had provided unclear advice, and apologised for this.  The landlord also stated that it believed that had the resident applied to Devon Home Choice during her introductory tenancy she would have been considered to be adequately housed, placed in Band E and therefore unable to bid.
31. The landlord, having clarified the resident’s complaint about the housing officer, also denied that the housing officer had advised the resident that she was a “playground toy for … village”, having interviewed the housing officer in question.  
32. The resident escalated the complaint on 18 August 2020 stating that the landlord had sided with the housing officer because there was no recording of the phone conversation.
33. On 3 September 2020 the landlord sent the Stage 2 response.  It noted that the resident did not consider that the housing officer had been truthful when providing information during the Stage 1 complaint investigation. It advised that there was no evidence to support either the resident’s or the housing officer’s version of events, therefore it could not determine which version of events was correct.  On this basis it could not uphold the resident’s complaint.

Assessment and findings

The advice given to the resident concerning the Home Choice Scheme

34. In assessing the resident’s complaint about the advice given about the Home Choice Scheme, the Ombudsman has not sought to assess the handling of the resident’s rehousing application or to say what the outcome would have been had the application been submitted earlier. This is because the Local Government and Social Care Ombudsman has the jurisdiction to consider complaints about applications for re-housing that meet the reasonable preference criteria. This includes complaints about the assessment of such applications, the award of points, banding or a decision that the application does not qualify for reasonable preference.  The Local Government Ombudsman also considers complaints about the operation of choice-based lettings scheme.  This investigation has focussed on the advice provided by the Council acting in its capacity as a landlord carrying out its housing management service.
35. The evidence provided to this Service indicates that the resident first enquired with the landlord about a transfer in March 2019, in phone calls made on 20 and 28 March 2019.  The records of the calls confirm the landlord advised that she would be considered suitably housed under Devon Home Choice and that she would not be considered eligible for a transfer until July 2019 when her introductory tenancy would end and convert to a (flexible) secure tenancy.  It is appropriate that a landlord seeks to manage a tenant’s expectations about their housing circumstances as expectations that are inappropriately raised can exacerbate the tenant’s dissatisfaction with their situation; however, this requires the provision of clear and accurate information.
36. The Devon Home Choice scheme policy set out that the scheme did not apply to introductory or probationary tenancies, therefore it is understandable that the landlord advised the resident that she would not be eligible for a transfer until the introductory tenancy period expired.  However, the operation of Devon Home Choice is unclear insofar as the scheme also states that “Where an introductory/probationary tenancy becomes a secure or assured tenancy, applicants do not need to re-apply”. This indicates that new tenants can apply and be registered on Devon Home Choice whilst on a probationary or introductory tenancy and, whilst they may not be eligible for re-housing at that time, this may change upon expiry of the probationary/introductory period. 
37. The landlord also advised the resident in March 2019 that if she had applied whilst an introductory tenant, she would be considered suitably housed.  It in effect told the resident again that she would be ineligible for re-housing under Devon Home Choice as it is the Council’s policy not to register Band E applicants who are classed as having no housing need and are therefore suitably housed. However, the scheme allows for applicants to be placed in a higher priority band if housing need is identified on health and/or welfare grounds. This assessment and decision lay with Devon Home Choice, and not the landlord’s housing management service. 
38. Taken together with the lack of clarity in the Devon Home Choice scheme policy at that time, which was open to interpretation, it was inappropriate that the landlord led the resident to understand, as confirmed by its case records, in March 2019 that she was ineligible for rehousing and needed to wait until 23 July 2019. It would have been prudent for the landlord to have referred the resident to approach Devon Home Choice itself.
39. It is not the case that the landlord denied the resident access to Devon Home Choice as the resident had the option of making an application regardless of the advice provided by the landlord. Nonetheless, given the context of the difficulties the residents had in her relationships with neighbours and her wish to move elsewhere as resolution, the landlord missed an opportunity to ensure the resident was certain of her housing options.  Devon Home Choice had the authority to determine any application received by the resident and advise how eligibility and housing need may be affected by factors such as tenancy type and health/welfare grounds. A definitive response from Devon Home Choice may have mitigated any uncertainty felt by the resident about her re-housing prospects between March and July 2019, when she did make a re-housing application.

How the landlord handled the resident’s reports of ASB including how staff communicated with her

40. It is not for this Service to determine if the behaviour reported by the resident constituted antisocial behaviour, as that was a judgement which fell to the landlord to determine. It must also be recognised that responsibility for antisocial behaviour lies with the perpetrator, not the landlord. The landlord, however, is responsible for ensuring that it takes appropriate and proportionate action to address and seek to resolve reported antisocial behaviour, and that it has adequate and effective procedures in place for doing so.
41. It should also be noted that a resolution which suits all parties may not be possible in cases where there are lifestyle differences or personality clashes, resulting in neighbour disputes rather than antisocial behaviour, for example.
42. Upon receiving reports of alleged antisocial behaviour, the landlord first needs to gather evidence to establish whether the behaviour is unreasonable and constitutes antisocial behaviour. Its procedures must also ensure that it remains impartial and does not seek to apportion responsibility for behaviour until it has established the facts. It is therefore important that a landlord has in place procedures to ensure reports of antisocial behaviour are appropriately and effectively responded to. Embedded within the landlord’s procedure was the need for engagement and liaison with partner agencies, including the police. This Service must therefore consider whether the landlord followed its own procedure in response to the reported antisocial behaviour.
43. It is clear from the repeated mention of the incident that the resident was particularly distressed by the alleged loss of several watches.  She advised the landlord of the incident in February 2019. The landlord responded promptly and in line with its antisocial behaviour policy by carrying out home visits.  This was appropriate because on receipt of a complaint of antisocial behaviour, an alleged perpetrator must be given an opportunity to be made aware of it, to respond and where relevant, a chance to put things right.  In this case the landlord sought to address the situation by facilitating the return of the watches. In doing so, the landlord also demonstrated that it had taken matters seriously.  The landlord also acted appropriately, in line with the multi-agency approach outlined in the policy, by contacting the police about the incident as the police had also investigated and had the authority to determine if a crime had taken place, which may have justified further action by the landlord against the neighbour.
44. The resident also made allegations of people entering her property.  The landlord took reasonable steps to allay the resident’s concerns about the matter by checking for physical signs of entry.  It was also in line with the antisocial behaviour policy that the landlord again liaised with the police and suggested that the resident contact medical professionals who were supporting her.  In the absence of evidence that any individual had entered the resident flat, the landlord’s actions were reasonable and proportionate. 
45. The landlord explored the option of mediation with the resident’s neighbour after the above incidents. This was an option outlined in the antisocial behaviour policy and was reasonable given the reports made. An independent third party in a mediation process helps conflicting parties understand each other’s view and to work through their disagreement so that a satisfactory agreement is reached for all concerned. Mediation offers a cost-effective remedy and a quick resolution to disputes. However, as the neighbour did not wish to engage the landlord was unable to pursue this.
46. The resident also advised the landlord about allegations she had made about a shop worker and an item of jewellery that she received in the post. The resident’s formal complaint also indicate that she had reported an incident of damage to her door, although it is unclear when the report was made. It is evident that these incidents caused distress to the resident. However, in the case of the shop worker, there is no evidence that she was a tenant of the landlord and therefore someone against whom the landlord could take formal or informal tenancy action. There is also no evidence of which individuals were responsible for the other matters reported.  In the absence of an identified alleged perpetrators, there was little action the landlord could reasonably take.
47. The landlord continued to liaise with the police during the resident’s tenancy, following the multi-agency approach set out in the antisocial behaviour policy.  The police’s suggestions in September 2019 that the resident write down incidents and attend monthly joint meetings was pragmatic and reasonable.  This is because the suggestions may have assisted the resident in focussing her reports and therefore helped the landlord to obtain specific details of new incidents that may have warranted further investigation.  The landlord was not timely in seeking to establish the meetings, only seeking the resident’s agreement in February 2020, although ultimately the resident did not respond.
48. With regards to the Community Trigger, it was the resident’s responsibility, not the landlord’s, to activate this process, by phoning the police on 101.  The Council’s website confirms that residents should activate the Community Trigger by phoning 101.   The landlord advised in its complaints responses that it advised the resident to phone 101; however, there is no contemporaneous record of when it provided this advice indicating a shortcoming in its record keeping.
49. The resident also complained about a derogatory comment she stated was made by a housing officer.  By seeking the housing officer’s version of events, the landlord took appropriate steps to investigate the allegation.  Given that the housing officer denied making the alleged comment, together with the lack of other evidence to corroborate the allegation such as a recording, it was reasonable that the landlord acknowledged this aspect of the resident’s complaint but did not uphold it.  By referring to the comment in its complaint responses, it also ensured that the resident’s version of events was kept on file.

Determination (decision)

50. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of the resident’s complaint about the advice given to her concerning the Home Choice Scheme.
51. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of the resident’s complaint about how the landlord handled her reports of ASB including how staff communicated with her.

Reasons

52. The decision on the resident’s eligibility for rehousing and priority banding lay with Devon Home Choice not the landlord’s housing management service.  Taken together with the lack of clarity in the Devon Home Choice scheme policy at that time, which was open to interpretation, it was inappropriate that the landlord led the resident to understand, as confirmed by its case records, in March 2019 that she was ineligible for rehousing and needed to wait until 23 July 2019. Given the context of the difficulties the residents had in her relationships with neighbours and her wish to move elsewhere as resolution, the landlord missed an opportunity to ensure the resident was certain of her housing options.
53. In response to the resident’s reports of antisocial behaviour, the landlord objectively investigated incidents and took a range of actions that were in line with its antisocial behaviour policy. This includes carrying out home visits and interviewing the neighbour, liaising with the police about the reports made by the resident and offering mediation.  The landlord also took appropriate steps to investigate the resident’s allegation that a housing officer made derogatory comments about her.

Orders and recommendations

Order

54. The landlord is ordered to pay the resident £75 compensation for the distress and inconvenience caused by the failings in its handling of her queries about seeking rehousing.

Recommendation

55. The landlord ensures that it maintain records of advice provided to residents on how they can activate the Community Trigger.